Petition for Writ of Certiorari — Laudumiey v. Louisiana Attorney Disciplinary Board

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j to. OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

IN RE:

FERNAND L. LAUDUMIEY, II!

and

DENNIS S. MANN,

Petitioners.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF LOUISIANA

PETITION FOR WRIT OF CERTIORARI

WILLIAM A. PorTEous, III

: PORTEOUS, HAINKEL

; AND JOHNSON, L.L.P.

; 704 Carondelet Street

New Orleans, Louisiana 70130

(504) 581-3838

| Attorney for Petitioners.

Washington, D.C. ¢ THIEL PRESS ¢ (202) 328-3286

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QUESTIONS PRESENTED :

I. Must the Louisiana Attorney Disciplinary Rules and

Procedures which cover the disbarring of attorneys

comply with both procedural and substantive due

| process?

1. Are the notice requirments of procedural due pro-

cess infringed by application of permanent dis-

barment rules where permanent disbarment was

not a penalty when Petitioners wrongfully influ-

enced prospective Grand Jury witnesses? -

2. Does “fundamental fairness” and “fair warning”’

require that the punishment of permanent disbar-

ment be known at the time of wrongful conduct?

3. Does the Louisiana unitary system of lawyer dis-

‘cipline violate the requirements of an impartial

tribunal by its combination of prosecutorial and

adjudicatory functions?

4.Must a lawyer be disbarred upon conviction

beyond a reasonable doubt or may lesser stand-

ards: “clear and convincing evidence,” “moral fit-

ness to practice law” and “fitness to practice

law” suffice as adequate standards free of vague-

ness?

II. May Louisiana’s new Supreme Court Rules provid-

ing for a penalty of permanent disbarment be

applied retroactively without violating the consti-

tutional prohibition against state ex post facto

laws?

(11)

LIST OF PARTIES

Counsel of record for Petitioners certifies that the fol-

lowing are parties and counsel who have an interest in the

outconre of this case:

Fernand L. Laudumiey, III, formerly an attorney at

law of New Orleans, Louisiana;

Dennis S. Mann, formerly an attorney at law of New

Orleans, Louisiana;

The Supreme Court of Louisiana, the legal entity hav-

ing plenary power over membership in the Bar of

Louisiana;

The Louisiana Attorney Disciplinary Board, a state-

wide agency established by the Supreme Court of

Louisiana to administer the lawyer discipline and dis-

ability system;

Charles P. Plattsmier, Chief Disciplinary Counsel,

Louisiana Attorney Disciplinary Board, Baton Rouge,

Louisiana, counsel with prosecutorial authority in this

cause;

William A. Porteous, III, of New Orleans, Louisiana,

Counsel for Petitioners.

(111)

TABLE OF CONTENTS

GPMOERIONS PUCSONICR 26 et cee eer eseseecns i

re Che Lia he ah 6 bo he kd nee 60 4 Oe we ll

PTT COREE TCT TET eee IV

RS Tee eee Te eee ee eee ]

Jurisdictional Grounds ........ See Peenues ]

Statutory Provisions Involved................+-24% ]

NE a Is ons 6b nb 0 vedo we oe bebe sess ]

Argument:

Reasons For Granting The Writ.................. 5

Part I — Question I Presented, Due Process:

Disciplinary Proceedings Against Lawyers

Should Accord Lawyers Under Threat Of

Disbarment Full Procedural And Substan-

errs re ee ee 6

1. The Notice Requirement of Procedural

Due Process Is Infringed by the Applica-

tion of Louisiana’s New Permanent Dis-

barment Rules to Petitioners When Those

Rules Were Not in Effect at the Time of

Petitioners’ Wrongful Conduct .............. 7

2. Fundamental Fairness In A Proceding

Involving Liberty and Property Is Incor-

porated Within The Concept of Due Pro-

cess of Law as Understood In This Nation

And Dictates That The Punishment Of

Permanent Disbarment Be Known At The

Time of the Offense So As To Satisfy

oe a ee ree 9

(tv)

Ri.

3, The Louisiana Unitary System of Lawyer

Discipline is Constitutionally Flawed Be-

cause of Violation of the ‘‘Impartial Tri-

bunal” and the “Appearance and Reality

of Fairness” Due Process Requirement:

Absence of a Wall Between Prosecution

SG FR, 6.65 0 0 6 boob dn eeteuewinss 10

4. Full Due Process both Procedural and Sub-

stantive in Quasi Criminal Proceedings Re-

quires Proof Beyond a Reasonable Doubt

and Voids Standards Such As ‘‘Ciear and

Convincing Evidence,” ‘‘Moral Fitness

Necessary to Practice Law’”’ and “‘Fitness

as Lawyers.”” These Terms Are Vague

and Void; They Permit the Intrusion of

Subjective Judgment by the Fact Finder...... 13

Part II — Question II Presented, Ex Post Facto:

Because Lawyer Disciplinary Proceedings Are

Quasi Criminal, They Cannot Increase Pun-

ishment Ex Post Facto Without Violating The

U.S. Constitution, Article I, §10, Clause 1l...... 14

Pee eee eee OP ee ree es 18

TABLE OF AUTHORITIES

Cases:

Application of Gault, 387 U.S. 1, 33 (1967)........ 13

Application of Griffiths, 413 U.S. 717, 722-27

+ pare rer ee eee et ee 9

BMW of North America, Inc. v. Gore, 517 U.S.

Dey PFS LEPE 6 bocce eye eeshncueresebnees 7,10

(v)

Cases, continued: Page

Board of Regents of States Colleges v. Roth, 408

Fe ey) ee ee eee 9

Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386

th, Srerrere rer Peres eer oy 16, 17

California Department of Corrections v. Morales,

514-U.S. OB, SOG (IGGS) oc ds scvcceviscevcers 14

Cantwell v. Connecticut, 310 U.S. 296, 308

fe ee eee Fe ey as ey ee 13

Colten v. Kentucky, 407 U.S. 104, 110 (1972)....... 13

Conn v. Gabbert, 526 U.S. 286, 291-92 (1999)....... 9

Dobbert v. Florida, 432 U.S. 282, 297-98

Chobe) ere er er ee eter eat es 9,15

Fletcher v. Peck, 10 U.S. 87, 6 Cranch 87

CIGIGD: +s ods cc kbe vb spat ade eae bee 16

Garner v. Jones, 529 U.S. 244 (2000).............. 14

Goldberg v. Kelly, 397 U.S. 254, 271 (1970) ........ 12

In re: Ashy, 1998-0662 (La. 12/1/98), 721 So.2d

Pee eee Te eT ery eee 16

In re: Estiverne, 1999-0949 (La. 9/24/99), 741

SOG OOP sivic kaye en tdenkd ne eeesn eee 16

In re: Murchison, 349 U.S. 133, 136 (1955)......... 12

In re: Ruffalo, 390 U.S. 544 (1968)........ 6, 7, 8, 13

In re: Taylor, 2000-2392 (La. 10/13/00), 770

BODE SOO. 6 56666-44064 eee eke 16

In re: Vaughn, 2000-1892 (La. 10/27/00), 772

we EPPS T STE Te TPO ee eee Le 16

In re: Winship, 397 U.S. 358, 364 (1970).......... 1°

Johnson v. United States, 529 U.S. 694 (2000)...... 17

(vt)

Cases, continued: Page

Lankford v. Idaho, 500 U.S. 110 (1991)......... 7,10

Lynce v. Mathis, 519 U.S. 435 (1997)... ..cesceces 17

Marshall v. Jerrico, 446 U.S. 238, 242 (1980)........ 12

Meyer v. Nebraska, 262 U.S. 390, 399 (1923)........ 9

Middlesex County Ethics Committee v. Garden

State Bar Ass’n., 457 U.S. 423 (1982)............ 6

Musser v. Utah, 333 U.S. 95, 97 (1948) ............ 13

Offut v. United States, 348 U.S. 11, 14 (1954). ...... 12

Palko v. Connecticut, 302 U.S. 319, 325 (1937)...... 9

Papachristou v. City of Jacksonville, 405 U.S.

LOG CIGGE) 0.066 c eh ek eens Okeke bak eee 13

Schware v. Board of Bar Examiners of New Mex-

6G, 500 UG, Ge Leet 6 anche ceecawuwne tees 9

Schwetker v. McClure, 456 U.S. 188, 195 (1982)..... 12

Smith v. Goguen, 415 566 (1974). ... 2... ese eeees 13

Snyder v. Com. of Massachusetts, 291 U.S. 97,

RGD (UB DS) oo ovccunteetceuen es ueebeeeeeeaes 9

State v. Jordan, 440 So.2d 716, 718 (La. 1983)...... 17

Weaver v. Graham, 450 U.S. 24, 29 (1981).......... 17

Winters v. New York, 333 U.S. 507, 515-516

th | ere er rae re ee 13

Winthrow v. Larkin, 421 U.S. 35 (1975)............ 12

Treatises and Commentaries:

1 Blackstone, Commentaries on the Law of Eng-

fata 46 (ISTE) 6c ivv a cvemessdeu een Seb eeeeebes 15

Federattst Papers, NO. €4, ...0scsuvecnsevseususes 15

(vit)

Treatises and Commentaries, continued:

1 Kent, Commentaries on American Law, 382

Radin, Handbook of Roman Law, 475 (1927)....

Schwartz, Commentaries of the Constitution of

the United States, Part III, Rights of the

Person, Chapter 151, Section 392 (1968)......

Story, Commentaries on the Constitution of the

United States, Section 1367 (1833) ..........

Constitutional Provisions:

oe Comet, ant, © BIG Cae Env occ cccccccsss

So Se Os © g's sb 6 we as ae eee ees

PETITION FOR WRIT OF CERTIORARI

Fernand L. Laudumiey, III and Dennis S. Mann, Peti-

tioners, hereby petition the Court to issue a writ of cer-

tiorari to review the judgment and opinion of the Sup-

reme Court of Louisiana in Attorney Disciplinary Pro-

ceedings entered on June 27, 2003.

OPINION BELOW

The opinion of the Supreme Court of Louisiana, which

is reproduced in Appendix A commencing at page la, is

officially reported at 2003 B 0234 (La. 6/27/03), 849

So.2d 515.

JURISDICTIONAL GROUNDS

The decision of the Supreme Court of Louisiana was

entered on June 27, 2003 (App. A, p. la). This court

has jurisdiction to review the decision of the Supreme

Court of Louisiana on writ of certiorari pursuant to 28

U.S.C. Section 1257.

STATUTORY PROVISIONS INVOLVED

U.S. Const. art. 1, Sec. 10, Clause 1, which states in

pertinent part that ‘‘No state shall... pass any... ex

post facto law.”

U.S. Const. amend. XIV, Sec. 1, which states in per-

tinent part that “No State shall... deprive any person

of life, liberty, or property, without due process of

99

law.

Louisiana Supreme Court Rule XIX, Appendix H.

2

STATEMENT OF THE CASE

Petitioners were permanently disbarred by judgment of

the Supreme Court of Louisiana on June 27, 2003 (App.

A, p. 18a). The judgment became final July 11, 2003.

The basis for the disbarment of petitioners was their plea

and conviction of obstruction of justice, a federal crim-

inal offense. Petitioners acted improperly relative to

prospective witnesses before a federal grand jury.

Petitioner pled guilty in the United States District

Court for the Eastern District of Louisiana on March 14,

2001. Petitioners voluntarily and by joint consent sur-

rendered their licenses to practice law in Louisiana on an

interim basis on April 11, 2001. The Supreme Court of

Louisiana on that date ordered that disciplinary proceed-

ings be instituted.

At the time of the offense of Petitioners, a lawyer who

was disbarred might apply to the Supreme Court five

years after disbarment and seek readmission to the Bar.

Readmission was at all times discretionary under the

plenary power of the Supreme Court of Louisiana to con-

trol membership in the Bar.

The Louisiana Attorney Disciplinary Board acting

through its Disciplinary Counsel brought charges for

improper conduct by a lawyer against Petitioners and

these proceedings were instituted on the 23rd day of

July, 2001. The Disciplinary Board, acting through Dis-

ciplinary Counsel, sought the “disbarment” of Petitioners

on account of conviction of a serious crime, a crime

involving the administration of justice. On August 22,

2001, the Disciplinary Counsel filed a supplemental

charge seeking “‘permanent disbarment.”

Petitioners admitted their conviction and the only

issue for trial was the severity of the punishment.

At the time of the commission of the criminal offense

by Petitioners, a Louisiana disbarred lawyer could apply

3

for readmission to the Bar after being disbarred for five

years. Subsequent to the commission of the offense and

the institution of a prosecution by the Louisiana Discip-

linary Board, the Louisiana Supreme Court amended its

disbarment rule to provide for permanent disbarment for

what were egregious offenses. This Amended Section 10

of the Rule XIX was effective August 1, 2001. (See

App. H, pp. 81a, 92a).

In Louisiana, the Supreme Court, pursuant to its rules,

has a Disciplinary Board whose responsibility is attorney

discipline and disability. (App. H, p. 81a). The Attorney

Disciplinary Board appoints a Disciplinary Counsel as a

prosecutor and the Supreme Court of Louisiana must ap-

prove the appointment of the Disciplinary Counsel (App.

H, p. 85a). Prosecution of attorneys for violations of the

Rules of Professional Conduct is instituted by the Dis-

ciplinary Counsel after investigation of an alleged offense

and prosecution can only be initiated after clearance by

a committee of the Louisiana Disciplinary Board and the

members of that Committee do not thereafter sit in

judgment on an attorney. (App. H, pp. 84a, 85a, 89a).

The Supreme Court may also order the initiation of dis-

ciplinary proceedings.

Offenses against the Rules of Professional Conduct are

tried before a Hearing Committee appointed by the

Louisiana Disciplinary Board consisting of two lawyer

members and one public member. (App. H, pp. 83a-84a,

89a). After a case is tried by a Hearing Committee, the

Hearing Committee enters findings which are then

reviewed in the nature of an appeal before the Louisiana

Attorney Disciplinary Board sitting in panels of three in-

volving two attomeys and one public member. This com-

mittee of the Louisiana Attorney Disciplinary Board per-

forms the function of an intermediate court of appeal

reviewing issues of fact and law with full power to

4

change recommendations as to appropriate sanctions.

(App. H, pp. 83a, 90a).

After proceedings are held with briefs and oral argu-

ments before the Louisiana Attorney Disciplinary Board,

a disciplinary matter is then referred to the full Supreme

Court of Louisiana where again there is a hearing after

briefs and arguments and the Supreme Court of Louis-

iana, after reviewing the record, renders a decision as to

the discipline to be imposed. (App. H, p. 91a). In this

case, the Supreme Court of Louisiana imposed permanent

disbarment upon Petitioners although that was not a

declared sanction at the time Petitioners committed their

offense.

Petitioners objected to the ex post facto quality, of the

efforts to impose permanent disbarment upon them from

the Hearing Committee level through the Disciplinary

Board and at the Supreme Court of Louisiana. Petition-

ers also objected to the unitary system of discipline

wherein the prosecutorial and adjudicatory functions are

combined in a unitary system in Bar disciplinary matters.

Petitioners also objected to the constitutionally vague

standards for judging lawyer misconduct. The preser-

vation of the constitutional issues of due process of law

and ex post facto issues herein are found in: Peremptcry

Exceptions Raising Constitutional Issues (App. D), the

Findings of the Hearing Committee (App. C), the Ex-

cerpts from the Brief to the Disciplinary Board (App.

E), the Decision of the Disciplinary Board (App. B), the

Excerpts from the Brief to the Supreme Court of Louis-

iana (App. G), and the Decision of the Supreme Court

of Louisiana (App. A). After judgment of permanent

disbarment, Petitioners bring this writ of certiorari in

this Court.

ARGUMENT

REASONS FOR GRANTING THE WRIT

Public perception of the lawyer as motivated by

unprincipled greed without any anchor in or dedication

to helping others in -an ethical way has led the Bar and

the supreme courts of the states to a vigorous prosecu-

tion of lawyer wrongdoing. This movement of the last

decade in Louisiana has taken the form of vigorous

enforcement of the Rules of Professional Conduct by

zealous prosecution and harsh judsment in the Supreme

Court of Louisiana. Petitioners are two Lousiana rec-

ently permanently disbarred lawyers.

Due process, substantive and procedural, has always

protected the citizen from unfair exercise of power by

government. Courts are the great protector of the rights

of citizens in their contests with governmental authority.

Where the lawyer is involved, courts should be vigilant

in the protection of the lawyer citizen in his contest with

those who control membership in the legal profession.

Courts in regulating lawyers subject to their power, no

less than all government, should be controlled by sub-

stantive and procedural due process.

This case involves egregious conduct by two lawyers

who over several hours sought to influence two former

employees in prospective testimony before a federal

grand jury. The conduct was wrong in the extreme.

Between the time of the wrongful conduct and com-

mencement of the prosecution, Louisiana amended its

disciplinary rules to provide for two categories of dis-

barred lawyers. The two classifications of disbarred law-

yers are: the disbarred and the permanently disbarred.

The former could apply for readmission as previously;

6

the latter were enjoined from ever seeking readmission;

this was new. (App. H, pp. 86a-89a). (The sanction of

permanent disbarment was added to Rule XIX, Section

10, by order of the Louisiana Supreme Court dated July

19, 2001, effective August 1, 2001. (App. H, p. 93a).

The new Louisiana disbarment rules implicate due

process and ex post facto issues which are of substantial

importance to the public and the Bar.

In the broadest of thinking, this cause involves the

plenary power of a court to control its Bar as opposed

to the rights of citizen lawyers to practice a profession

with the protection of due process of law, separation of

powers and checks and balances. This is important to

the courts and the Bar.

PART I

Question I Presented, Due Process

DISCIPLINARY PROCEEDINGS AGAINST LAWYERS

SHOULD ACCORD LAWYERS UNDER THREAT OF

DISBARMENT FULL PROCEDURAL AND SUBSTAN-

TIVE DUE PROCESS.

This Court visited the lawyer discipline due process

issue in 1968 in Jn re: Ruffalo, 390 U.S. 544 (1968)

holding that a lawyer involved in disciplinary proceedings

was enmeshed in matters which were ‘‘quasi criminal”

and therefore entitled to procedural due process, notice

and an opportunity to be heard. In 1982, the Court

recognized that a lawyer had a right to have constitutional

issues heard in a disciplinary proceeding. Middlesex

County Ethics Committee v. Garden State Bar Ass’n.,

457 U.S. 423 (1982).

=

—s

7

This petition on behalf of two disbarred lawyers asks

the Court to address the further questions of whether

the lawyer involved in disciplinary proceedings is entitled

to both substantive and procedural due process.

Permanent disbarment is a kind of professional death

sentence. Where the sanction is so high, the lawyer

should know from the time of the offense forward what

the possible sanction may be. Lankford v. Idaho, 500

U.S. 110 (1991). Not only must there be notice of the

changes, but notice of the punishment as well, especially

where a range of punishments might be at issue. ‘‘Ele-

mentary notions of fairness enshrined in our constitu-

tional jurisprudence dictate that a person receive fair

notice not only of the conduct that «vill subject him to

punishment, but also of the severity of the penalty that

a State may impose.” BMW of North America, Inc. v.

Gore, 517 U.S. 559, 574 (1996).

1. The Notice Requirement of Procedural Due

Process Is Infringed by the Application of

Louisiana’s New Permanent. Disbarment Rules

to Petitioners When Those Rules Were Not in

Effect at the Time of Petitioners’ Wrongful Con-

duct.

The Court in Jn re: Ruffalo, supra, stated:

Disbarment, designed to protect the public, is a

punishment or penalty imposed on the lawyer.

He is accordingly entitled to procedural due pro-

cess, which includes fair notice of the charge. 390

U.S. at 550.

In Ruffalo, the Respondent was not provided with

notice of the charge which led to his disbarment until

after he and another witness had already testified at the

8

disciplinary hearing. -The Court found that this consti-

tuted a procedural due process violation.

If the sanction of permanent disbarment is applied

retroactively, the Petitioners are deprived of due process

in that they did not have adequate notice of this poten-

tial sanction at the time of their alleged offense.

The Court in Ruffalo held:

[Lawyer disciplinary proceedings] are adversary

proceedings of a quasi criminal nature. The charge

must be known before the proceedings commence.

They become a trap when, after they are underway,

the charges are amended on the basis of testimony

of the accused. He can then be given no opportun-

ity to expunge the earlier statements and start

afresh.

* * *

This absence of fair notice as to the reach of the

grievance procedure and the precise nature of the

charges deprived petitioner of procedural due

process. 390 U.S. at 551 [Citations omitted. ]

Similarly, if the Petitioners had notice of the reach

of the grievance procedure at the time they obstructed

Justice, at the time they pled guilty or at the time they

consensually surrendered their licenses to practice law,

that the penalty might be disbarment without the option

to reapply after five years (permanent disbarment),

they might not have committed the offense or otherwise

acted. Decisions cannot later be undone; they are an

inescapable part of an established record.

Therefore, as a result of procedural due process con-

siderations, the sanction of permanent disbarment

should only be applied prospectively and not retro-

actively to the time of the offense.

9

2. Fundamental Fairness In A Proceeding Involv-

ing Liberty and Property Is Incorporated Within

The Concept of Due Process of Law as Under.

stood In This Nation And Dictates That The

Punishment Of Permanent Disbarmem Be

Known At The Time of the Offense So As To

Satisfy ‘‘Fair Warning.”’

The United States through Article V and Amendment

XIV of the Constitution is committed to requiring due

process. Where a government not only terminates present

employment but forecloses an entire occupational field,

that action must comport with full due process of law.

A citizen of this nation has a liberty and property interest

in following a trade or occupation. Conn v. Gabbert,

526 U.S. 286, 291-92 (1999); Application of Griffiths,

413 U.S. 717, 722-27 (1973); Board of Regents of State

Colleges v. Roth, 408 U.S. 564, 572 (1972); Schware v.

Board of Bar Examiners of New Mexico, 353 U.S. 232

(1957); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

“Fair warning” is an essential rule in all matters that

involve criminal conduct. Dobbert v. Florida, 432 U.S.

282, 297-98 (1977). Justice Cardozo thought that:

“{T]he Fourteenth Amendment proscribed certain

State procedures, not because proscription was spelled

out in one of the Bill of Rights but because the matter

offends some principle of justice so rooted in the tradi-

tions and conscience of our people as to be ranked as

fundamental.” Snyder v. Com, of Massachusetts, 29]

U.S. 97, 105 (1934). Indeed, the idea of “fair warning”

is “implicit in the concept of ordered ‘liberty.’ ’’ Palko

v. Connecticut, 302 U.S. 319, 325 (1937). Incorpora-

tion of fundamental ideas implicit in the concept of

ordered liberty is an ongoing process.

10

Where liberty and property legally are protected,

wrongful conduct and the penalty for wrongful conduct

are twined in any rule or statute. This exists because of

the requirement of a “fair warning.” It is part of our

concept of “ordered liberty.’”” To denounce conduct

and change the penalty after the conduct and then

enforce the change is to abandon that concept of “ord-

ered liberty,’’ which is fundamental and protected by due

process in this nation.

‘Fair warning’ embraces notice of punishment.

Lankford v. Idaho, supra; BMW of North America v.

Gore, supra.

3. The Louisiana Unitary System of Lawyer Dis-

cipline is Constitutionally Flawed Because of

Violation of the “Impartial Tribunal” and the

‘Appearance and Reality of Fairness’’ Due

Process Requirement: Absence of a Wall Bet-

ween Prosecution and Adjudication.

Courts have always had plenary power ‘o control

who might appear before them. The power is inherent.

The Louisiana Supreme Court sits in judgment in these

Louisiana disciplinary matters. The Supreme Court

appoints the Disciplinary Board which reviews facts.

(App. H, p. 82a). The Board appoints hearing commit-

tees which find facts. (App. H, p. 83a). The Board

appoints Disciplinary Counsel, with the approval of the

Supreme Court (App. H, p. 85a). The Disciplinary Coun-

sel prosecutes. Prosecution and adjudication are tied to

the Louisiana Supreme Court. This combines prosecu-

tion and adjudication in the judiciary in a system without

checks and balances or review outside the judicial depart-

ment. It lacks that appearance of fairness which the

citizen is entitled to expect from government.

11

the concern about the military writing the rules for

military conduct and then acting as prosecutor and judge

of errant servicemen led to the Uniform Code of Military

Justice with its panoply of protections against dangers

inherent in the closeness of the prosecutor and judge

relationship. Administrative agencies acting as prosecu-

tors and judges in controversies emanating from the

alleged violation of agency rules and regulations led to

the Administrative Procedure Act in the federal sys-

tem and like statutes in the states. In every case there

remained an appeal to the courts. With respect to lawyer

discipline, a “‘unitary” system eliminates all of the pro-

tections accorded under a system controlled by laws like

the Administrative Process Act.

Historically, in Louisiana and in other states, the Bar

Association initiated prosecutions based on complaints

and acted as prosecutor in the state supreme court.

The inadequacy of this system to police the Bar led to its

scrapping in favor of this new “unitary ” system. How-

ever, the old system did provide for a separation of power

with its inherent checks. The new “unitary’”’ system lacks

any of the protections inherent in the concepts of separa-

tion of powers and checks and balances.

In a system where the Disciplinary Board and the Pro-

secutor are linked through the appointive power of the

Supreme Court, prosecution and adjudication may reflect

the philosophy and prejudices (if any) of a majority of

the court. This is an unconstitutional closeness of pro-

secution and- adjudication. The fact that Rule XIX Sec-

tion 2 (App. H, p. 81a) states that within the Board, the

“Prosecutorial and adjudicative functions are to be sep-

arate within the agency insofar as practicable in order to

avoid unfairness,”’ does not meet the issue. It does recog-

nize the issue. The issue is the link between the Louis-

le —

nn

12

iana Supreme Court, the Lawyer Disciplinary Board and

the Disciplinary Counsel (prosecutor) in the possible

merging of the prosecutorial and adjudicative functions.

Counsel is not accusing anyone of unfairness. Rather,

the system as conceived is constitutionally flawed be-

cause the system does not give the “appearance of fair-

ness” which a lawyer accused of wrongdoing is entitled

to expect. ‘‘A fair trial in a fair tribunal is a basic require-

ment of due process.” Jn re: Murchison, 349 U.S. 133,

136 (1955). “Our system has always endeavored to pre-

vent the probability of unfairness.”” Jbid; Winthrow v.

Larkin, 421 U.S. 35 (1975). “Justice must satisfy the

appearance of justice.”” Offut v. United States, 348 U.S.

11, 14, (1954).

In this case, where the Supreme Court appoints the

Board and approves the selection of the prosecutor and

clothes the Hearing Committee’s findings with the clearly

erroneous rule and then decides, there is no check or bal-

ance outside of the court. The fit is too close to satisfy

‘‘fairness.”’

It must never be forgotten that in the normal admin-

istrative agency determination where the prosecutorial

and adjudicative functions overlap, there remains the

check through an appeal to the judiciary which is an

independent branch of government outside the admin-

istrative agency or executive department. Since that

outside check is absent, the greater must be the assur-

ance of a system of initial and internal fairness. Gold- |

berg v. Kelly, 397 U.S. 254, 271 (1970): Marshall v. |

Jerrico, 446 U.S. 238, 242 (1980); Schwetker v. Mc-

Clure, 456 U.S. 188, 195 (1982).

annie,

13

4. Full Due Process both Procedural and Substantive

in Quasi Criminal Proceedings Requires Proof

Beyond a Reasonable Doubt and Voids Stand-

ards Such As “Clear and Convincing Evidence,”

‘“‘Moral Fitneess Necessary to Practice Law” and

‘Fitness as Lawyers.” These Terms Are Vague

and Void; They Permit the Intrusion of Subjec-

tive Judgment by the Fact Finder.

The proceedings herein are quasi criminal and Peti-

tioners are entitled to the protections of substantive and

procedural due process of law protected both in the

Louisiana and Federal constitution. In re: Ruffalo,

supra; Application of Gault, 387 U.S. 1, 33 (1967).

The applicable standard by which Petitioners should

be judged is proof beyond a reasonable doubt inasmuch

as these are quasi criminal proceedings. To use any other

standard is a denial of due process of law. Jn re: Win-

ship, 397 U.S. 358, 364 (1970).

The terms “clear and convincing evidence,” ‘moral

fitness necessary to practice law,” and “fitness as lawyers”

(App. A, pp. 5a, 18a, 6a) are vague, indefinite and ill-

defined standards. They create a Kafkaesque subjective

web. The standards are so subjective that they can result

in a violation of due process of law by reason of vague-

ness. Musser v. Utah, 333 U.S. 95, 97 (1948); Cantwell v.

Connecticut, 310 U.S. 296, 308 (1940); Winters v. New

York, 333 U.S. 507, 515-516 (1948); Colten v. Ken-

tucky, 407 U.S. 104, 110 (1972); Papachristou v. City

of Jacksonville, 405 U.S. 156 (1972); Smith v. Goguen,

415 U.S. 566 (1974). The terms are empty vessels that

become a vehicle for the fact finder’s subjective beliefs

and interpretations.

14

PART II

Question II Presented, Ex Post Facto

BECAUSE LAWYER DISCIPLINARY PROCEEDINGS ARE

QUASI CRIMINAL, THEY CANNOT INCREASE PUNISH-

MENT EX POST FACTO WITHOUT VIGLATING THE

U.S. CONSTITUTION, ARTICLE I, §10, CLAUSE 1.

‘The focus of ex post facto inquiry is . .. whether any

such change . . . increases the penalty by which a crime is

punishable.” California Department of Corrections v.

Morales, 514 U.S. 499, 506 (1995); Garner v. Jones, 529

U.S. 244 (2000).

The Supreme Court of Louisiana recognizes in its deci-

sion in this case that something in a new rule which “‘in-

creases the penalty by which the conduct is punishable”’

will violate the ex post facto prohibition. (App. A, p.

10a). The Louisiana Supreme Court indicated that

because it always had the power to disbar attorneys per-

manently, the change of the rule on five year application

for readmission to a rule of permanent disbarment- in

certain egregious cases was a procedural change only.

(App. A, pp. lla, 12a). This is a Frankfurter procedural/

substantive or substantive/procedural dichotomy. The

conclusion remains that Petitioners under the system in

effect when they broke the law and opened themselves

to the possibility of disbarment would have permitted

them to apply for readmission after five years disbarment

with the Louisiana Supreme Court having still the dis-

cretion of whether or not to allow readmission to the

Bar. The fact that the Louisiana Supreme Court had the

power to prohibit readmission does not alter the ex post

facto issue. A legislature has the power to increase the

punishment for a crime at any time. The issue is retro-

activity to the offense.

15

The language changes in the disbarment rule effective

August 1, 2001 after Petitioners offense and prosecution

are set forth in the opinion of the Supreme Court of

Louisiana (App. A, p. 8a).

By abolishing the privilege of applying for readmission

after five years, the disbarred Petitioners face a change

in the rules which reflects an increase in the penalty by

which their crime is penished. Petitioners can never

apply for readmission. When Petitioners wrongfully

sought to influence witnesses in their federal grand jury

testimony, if disbarred they could apply for readmission

after five years. That is now foreclosed. At the time

they did wrong, Petitioners had not been warned by

effective new rules that they might be permanently dis-

barred.

“Fair Warning” is the basis of the American commit-

ment to the ex post facto prohibition. Dobbert v. Flor-

ida, 432 U.S. 282, 297-98 (1977). The commitment to a

‘fair warning” is rooted in Western and American polit-

ical and legal thought, Story, Commentaries on the Con-

stitution of the United States, Section 1367 (1833).

Retroactivity was condemned by the Corpus Juris of

Justinian and the canon law and is the root of the phrase

“Nulia Poena Sine Lege.’’ Schwartz, Commentaries on

the Constitution of the United States, Part III, Rights of

the Person, Chapter 151, Section 392 (1968). Schwartz

cites Radin, Handbook of Roman Law, 475 (1927), and

1 Blackstone, Commentaries on the Law of England, 46

(1765).

In Federalist Papers, No. 44, Madison declares that ex

post facto laws “are contrary to the first principles of the

social compact and in every principle of sound legislation.”

He declares that the prohibition is part of the “spirit”

and scope of our “fundamental charters.”” Prohibition of

16

ex post facto laws was needed to erect ‘‘additional

fences’”” against ‘‘dangers.” Madison describes these

fences as part of a constitutional barrier in favor of per-

sonal security and private rights. Calder v. Bull, 3 U.S.

386, 390, 3 Dall. 386 (1798), declared that ex post facto

laws included laws which aggravated a crime and made it

greater than it was when committed or changed the pun-

ishment and inflicted a greater punishment than the law

annexed to the crime when committed.

Afterwards, in Fletcher v. Peck, 10 U.S. 87, 6 Cranch

87 (1810), it was held that ex post facto laws included

those laws which rendered an act punishable in a man-

ner in which it was not punishable when committed.

See also, 1 Kent, Commentaries on American Law, 382

(1826). It can be seen from this thinking that the pro-

hibition extends not only to making criminal, conduct

which at the time it was conducted was not punishable,

but also to increasing of punishment after the commis-

sion of the crime.

The Louisiana Supreme Court has many times set

forth the rule that while lawyer disciplinary proceedings

are primarily for the protection of the public, they are

also punishment of the defaulting lawyer. Jn re:

Vaughan, 2000-1892 (La. 10/27/00), 772 So.2d 87; In

re: Taylor, 2000-2392 (La. 10/13/00), 770 So.2d 335;

In re: Estiverne, 1999-0949 (La. 9/24/99), 741 So.2d

649; In re: Ashy, 1998-0662 (La. 12/1/98), 721 So.2d

859. Disciplinary proceedings involve punishment.

All criminal laws exist for the protection of the public

and part of the protection for the public is punishment

of the offender. In this case, the amendment to Louis-

iana Supreme Court Rule XIX was passed after the date

of Petitioners’ offense, it relates to the offense and its

17

punishment and alters the situation of the accused Peti-

tioners to their disadvantage. The permanently disbarred

Petitioners may never apply for readmission. That was

not the rule when they committed their offenses. See

also, State v. Jordan, 440 So.2d 716, 718 (La. 1983);

Weaver v, Graham, 450 U.S. 24, 29 (1981).

Johnson v. United States, 529 U.S. 694 (2000) in-

volved an ex post facto challenge to a federal Statute

which authorized a district court to impose an additional

term of supervised release upon violation of the initial

release conditions. The Court noted that the ex post

facto law question is whether a party is made worse off

by the application of the new law. In this case, it is clear

that Petitioners who lose the option of applying for read-

mission are ‘worse off.” Petitioners are “worse off”

even though their conduct occurred prior to August 1,

2001 when the Rule changed.

Lynce v. Mathis, 519 U.S, 433 (1997) involved a post

conviction Florida statute which cancelled a prisoner’s

release credits which had been awarded to alleviate prison

overcrowding. The Court held that this violated the ex

post facto prohibition because it “must disadvantage the

offender affected by it.” Jd. at 896, citing Weaver v.

Graham, supra. Indeed, the Court relies upon the funda-

mental viability of Calder v, Bull, supra.

The right of Petitioners to seek readmission after five

years is analogous to a prisoner seeking parole after serv-

ing a portion of his sentence. Changing the right to seek

parole after serving a portion of the sentence offends ex

post facto precepts. The prisoner is entitled to the bene-

fit of the parole statute in effect at the time of his

18

offense where parole is discretionary. In this case, Peti-

tioners are like the prisoner seeking parole; they could

come to the Supreme Court of Louisiana after five years

and seek readmission and the court in its discretion might

grant or deny the readmission application.

CONCLUSION

For the various reasons set forth above, this petition

for certiorari should be granted.

Respectfully submitted,

WILLIAM A. PorTEous, III

PORTEOUS, HAINKEL

AND JOHNSON, L.L.P.

704 Carondelet Street

New Orleans Louisiana 70130

(504) 581-3838

Fax: (504) 581-4069 |

Bar No. 10600

Attorney for Petitioners,

Fernand L. Laudumiey, III

and Dennis S. Mann.