Opposition Brief — McLaughlin v. Washington State Bar Ass'n

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Supreme Court, U.S.

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No. 96-1999 \ = JUL 18 1997

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In THE

Supreme Court of the United States

OCTOBER TERM, 1996

SONJA INDRELAND MCLAUGHLIN,

Petitioner,

Vv.

WASHINGTON STATE BaR ASSOCIATION, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF IN OPPOSITION

ROBERT D. WELDEN

General Counsel

WASHINGTON STATE BAR

ASSOCIATION

2101 Fourth Avenue

Fourth Floor

Seattle, WA 98121-2330

(206) 727-8232

Attorney for Respondents -

Washington State Bar

Association, et al.

WILSON - Eres Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether a United States District Court has subject mat-

ter jurisdiction to review a decision of the Washington

State Supreme Court in a lawyer discipline proceeding.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED Ra aA ih =

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

REASONS FOR DENYING THE PETITION ......_..

I. PETITIONER HAD ADEQUATE OPPOR-

TUNITY IN THE STATE PROCEEDINGS

TO RAISE HER CONBEEEU TIONAL CHAL-

LENGES

Ii. FEDERAL COURT ABSTENTION IN STATE

BAR DISCIPLINARY PROCEEDINGS IS A

WELL ESTABLISHED PRINCIPLE OF LAW..

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(iii)

Page

iv

TABLE OF AUTHORITIES

Cases: Page

Campbell v. WSBA, 263 F. Supp. 991 (1967) -...... 4

District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 108 S.Ct. 1808, 75 L.Ed. 206

(1983) 4, 5, 6

In re Kaiser, 111 Wn.2d 275, 759 P.2d 392 (1988)... 4

In re Schatz, 80 Wn.2d 604, 497 P.2d 153 (1972)... 4

In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89

Pe Fe Te tities hatin ones 5

MacKay v. Nesbett, 412 F.2d 846 (9th Cir.), cert.

denied, 396 U.S. 960 (1969) -............... . 8, 5,6

Middlesex County Ethics Committee v. Garden

State Bar Association, 457 U.S. 423, 102 S.Ct.

2515, 73 L.Ed.2d 116 (1982) 6

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27

L.Ed.2d 669 (1971) 6

Rules:

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In THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-1999

SONJA INDRELAND MCLAUGHLIN,

ne Petitioner,

WASHINGTON STATE BAR ASSOCIATION, ef al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

This case arises from a lawyer disciplinary proceeding

in the State of Washington. Petitioner filed a complaint

in the Federal District Court for the Eastern District of

Washington.

On March 16, 1995, the Honorable Wm. Fremming

Nielsen entered an order dismissing the complaint. Peti-

tioner then filed a motion for a new trial and for relief

from clerical mistake. On May 31, 1995, Judge Nielsen

entered an order denying the motion for new trial (or

reconsideration) and granted in part the motion for relief

from clerical mistake.

2

Petitioner is a member of the Washington State Bar

Association. Defendants are the Washington State Bar

Association, its Executive Director (Dennis P. Harwick),

its Chief Disciplinary Counsel (Leland G. Ripley), and

a lawyer member of its disciplinary department (Jean

Kelly McElroy).

This action arises from a lawyer discipline proceeding

brought by the Washington State Bar Association against

Petitioner pursuant to the Rules for Lawyer Discipline

(RLD) as adopted by the Supreme Court of Washington.

Following a hearing, the Hearing Officer concluded,

among other things, that in the course of a judicial cam-

paign, Petitioner had made statements which were false

and which were made with reckless disregard of their

truth or falsity in violation of rule 8.2(a) of the Rules of

Professional Conduct (RPC) (Conclusion of Law 9).

He concluded that in that judicial campaign, Petitioner

had made pledges or promises of conduct in office in

violation of RPC 8.2(b) and RLD 1.1(k) because they

violated rule 7(B)(1)(c) of the Code of Judicial Con-

duct (CJC) (Conclusion 9). He concluded that Peti-

tioner had made statements that failed to maintain the

dignity appropriate to judicial office in violation of RPC

8.2(b) and RLD 1.1(k) because they violated CJC

Canon 7(B)(1)(a) (Conclusions 10 and 11).

Following review by the Disciplinary Board of the

Washington State Bar Association, the Board ordered that

Petitioner receive a letter of censure and a reprimand.

Petitioner sought discretionary review of that decision

by the Washington Supreme Court pursuant to RLD 7.3.

On October 6, 1992, the Washington Supreme Court en-

tered an order denying the motion for discretionary re-

view.

3.

REASONS FOR DENYING THE PETITION

I. PETITIONER HAD ADEQUATE OPPORTUNITY

IN THE STATE PROCEEDINGS TO RAISE HER

CONSTITUTIONAL CHALLEN GES.

Petitioner argues that the United States District Court

should have jurisdiction over Petitioner's complaint be-

cause she has been denied the right to a judicial proceed-

ing to hear her claims in state court. Petitioner has no

factual basis for that argument. As Tweedledee said in

Through the Looking Glass:

... if it was so, it might be; and if it were so, it would

be; but as it is’nt, it ain’t.

Petitioner’s argument turns on the single question of

whether the document issued by the Supreme Court of

Washington denominated “Order” in the matter of Sonja

I. McLaughlin is an order of a state court issued as a

result of a judicial proceeding. (Copy of the Washington

Supreme Court Order is at Appendix A). If so, then it

may only be reviewed by the Supreme Court of the United

States on certiorari to the state courts, and not by means

of an original action in a lower federal court. MacKay

v. Nesbett, 412 F.2d 846 (9th Cir.), cert. denied, 396

U.S. 960 (1969).

Petitioner says flatly that it is not: “there is no final

decision of any state court” (Petitioner’s brief, p. 12, 23);

“The very document used as a basis for the District Court

decision, the so-called ‘Order’ of the Supreme Court of

Washington denying Petitioner’s petition for discretionary

review, showed on its face that no file exists in the Su-

preme Court of Washington to which a writ of certiorari

could be directed.” (Petitioner's Supplementary Ap-

pendix, p. 1).

Petitioner denies that the October 6, 1994 order was

the result of a judicial proceeding despite the facts. First,

the Washington Rules for Lawyer Discipline are rules

4

adopted by the Washington Supreme Court which gov-

erned the disciplinary proceeding commenced against

Petitioner. The Washington State Bar Association acts as

“an arm of the [supreme] court” in carrying out those

rules. In re Schatz, 80 Wn.2d 604, 607, 497 P.2d 153

(1972); Campbell v. WSBA, 263 F. Supp. 991 (1967).

Second, under the RLDs, Petitioner had recourse as of

right to the state Supreme Court, which she exercised.

RLD 7.3(a) provides:

Decisions of the [Disciplinary] Board . . . which do

not provide for suspension or disbarment are subject

to review by the Supreme Court only through discre-

tionary review. Discretionary review will be accepted

only:

(1) If the decision of the Board is in conflict with a

decision of the Supreme Court; or

(2) If a significant question of law is evolved: or

(3) If there is no substantial evidence in the record

to support a material finding of fact upon which the

decision of the Board is based; or

(4) If the petition involves an issue of substantial

public interest that should be determined by the Su-

preme Court.

In order to deny her petition, the Supreme Court neces-

sarily was required to review the case to determine

whether it met one of the requirements of RLD 7.3(a)

(1)-(4). The reason that the petition was denied is that

the law is well settled in Washington that the conduct

engaged in by Petitioner is prohibited by the Rules of Pro-

fessional Conduct, as adopted by the Supreme Court, and

that the prohibitions are constitutional. See, In re Kaiser,

111 Wn.2d 275, 759 P.2d 392 (1988).

The proceeding brought against Petitioner is similar to

that in District of Columbia Court of Appeals v. Feld-

man, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed. 206

5

(1983) in which the District Court issued a per curiam

decision dismissing Feldman’s petition for waiver of a

rule to permit him to sit for the bar examination. This

Court held that such a proceeding was in fact a judicial

proceeding.

When the claim is made in a state court and a denial

of the right is made by judicial order, it is a case

which may be reviewed under Article III of the Con-

stitution when federal questions are raised and proper

steps taken to that end, to this Court.

Feldman, at 479, quoting In re Summers, 325 U.S. 561,

65 S.Ct. 1307, 89 P.2d 1795 (1945).

Petitioner apparently elected to disregard the judicial

significance of the October 6, 1992 order, and decided

not to seek a writ of certiorari from that decision in a

timely manner. See Petition for Writ of Certiorari, p. 7.

She now seeks improper federal court interference in a

State court disciplinary matter. Her petition should be

denied.

II. FEDERAL COURT ABSTENTION IN STATE BAR

DISCIPLINARY PROCEEDINGS IS A WELL ES-

TABLISHED PRINCIPLE OF LAW.

Petitioner argues that the holding in this case, that the

District Court lacks subject matter jurisdiction, is “unlaw-

fully based on case law precedent.” Petitioner’s Brief, p.

10. Specifically, she contends that the Ninth Circuit hold-

ing in MacKay v. Nesbett, supra, is applied “in blanket

fashion without giving any legal or factual reasoning.”

That holding is: é

. . . orders of a state court relating to the admission,

discipline, and disbarment of members of its bar may

be reviewed only by the Supreme Court of the United

States on certiorari to the state court, and not by

means of an original action in a lower federal court.

412 F.2d at 846.

6

This holding reflects the fact that Federal District Court

abstention from involvement in state bar disciplinary pro-

ceedings has long been the rule. It is based on the prin-

ciples enunciated in Younger v. Harris, 401 U.S. 37, 91

S.Ct. 746, 27 L.Ed.2d 669 (1971) and restated in District

of Columbia Court of Appeals v. Feldman, supra at 482:

brief, p. 16), referencing 28 U.S.C. 2283, which provides

that a District Court may not grant an injunction to stay

proceedings in a State court. However, MacKay and Feld-

Ethics Committee v. State

U.S. 423, 102 S.Ct. 2515; 73 L.Ed.2d

ing “superseded” the holding in MacKay. |!

Y

CONCLUSION

Petitioner labors under the misapprehension that her

lai cing out of the Washi Sieciplin

ing were not the subject of a judicial proceeding. If that

were the fact, it might provide a basis for her claim to be

heard in the District Court. But, “as it isn’t, it ain’t”.

The Supreme Court should deny the Petition for Writ

of Cantineedl

Dated this 18th day of July, 1997.

Respectfully submitted,

APPENDIX

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APPENDIX A

THE SUPREME COURT OF WASHINGTON

Bar No. 7192

IN RE: SONJA I. MCLAUGHLIN,

an Attorney at Law.

ORDER

This matter came before Department I of the Court on

its October 6, 1992, Motion Calendar on attorney Sonja

McLaughlin’s motion for discretionary review of discipline

imposed in the form of a reprimand and censure. Depart-

ment I having considered the motion and the files herein;

Now, therefore, it is hereby

ORDERED:

That the motion for discretionary review is denied.

DATED at Olympia, Washington this 6th day of Octo-

ber, 1992. .

/s/ Fred H. Dore

Chief Justice