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MILDNER v. GULOTTA

October 9, 1975

HERBERT MILDNER, Plaintiff,
v.
FRANK A. GULOTTA, Individually and as Presiding Justice, Appellate Division of the State of New York, Second Judicial Department, HENRY J. LATHAM, J. IRWIN SHAPIRO, ARTHUR D. BRENNAN, FRED J. MUNDER, MARCUS G. CHRIST, JAMES D. HOPKINS, A. DAVID BENJAMIN, M. HENRY MARTUSCELLO, JOHN P. COHALAN, JR., individually and as Associate Justices of the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department, and IRVING N. SELKIN, individually and as Clerk of the Court of the State of New York, second Department, Defendants. MILTON LEVIN, Plaintiff, v. FRANK A. GULOTTA, et al., Defendants. JULIUS GERZOF, Plaintiff, v. FRANK A. GULOTTA, et al., Defendants



The opinion of the court was delivered by: NEAHER

OPINION AND ORDER

NEAHER, District Judge.

 These three civil rights actions were brought under 42 U.S.C. § 1983 to test the constitutionality of the procedures used by the State of New York to discipline attorneys charged with professional misconduct. Each case involves an attorney who was recently disciplined by the New York Supreme Court, Appellate Division, Second Department (hereinafter "Appellate Division"), thereby raising similar claims of alleged denial of due process and the equal protection of the laws. The cases were consolidated for hearing, March 12, 1975, before this three-judge district court, convened following Judge Weinstein's order of October 23, 1974, in Mildner v. Gulotta, in which he concluded that the case was one which must be heard and determined by a statutory court under 28 U.S.C. § 2281.

 Although subject matter jurisdiction exists on the basis of the pleadings and papers before us, we cannot accept the view that these plaintiff attorneys have made a case for relief here. With all respect for the Supremacy Clause, we do not construe § 1983 or our constitutional question jurisdiction as authorizing an inferior federal court to pass upon the procedure employed by the State courts to discipline attorneys who practice before them or to interfere with their judgments in such matters. Nor do we read the statute as in effect inserting a new form of federal review between the appellate courts of the State and the Supreme Court of the United States.

 That is not to say that disciplined attorneys have no remedy. Rather, we believe that attorneys above all should know that the State courts expound and apply the Constitution and that if they do so erroneously, the remedy is to apply to the Supreme Court for review. That remedy appears not to have been sought here.

 In our examination of the parties' submissions we have found no substantial merit in the plaintiffs' claims and conclude that the respective complaints should be dismissed. Judge Moore is of opinion that dismissal should be upon the merits for the reasons stated in his concurrence. In my view, under prevailing standards of federalism and comity, abstention is more appropriate. Before explaining the reasons for our conclusions, a brief history of each of the disciplinary proceedings is in order, followed by our analysis of the statutory and procedural framework and the constitutional claims the plaintiffs have raised.

 Factual Background

 1. Mildner

 The background facts, as stated in Judge Weinstein's earlier order and in the complaint, do not appear to be in material dispute. Mildner, an attorney duly licensed to practice in the State since 1959, maintains a law office in Brooklyn, New York. On October 4, 1972, the Appellate Division commenced disciplinary proceedings against Mildner following an investigation by the Second Department Judicial Inquiry on Professional Misconduct. Three charges of professional misconduct were filed against him. As summarized in the Appellate Division's final decision in the case, the first charge alleged a wrongful conversion to his own use of $17,430 entrusted to him by a personal friend, Roberta Evans, on the pretext that the money would thereby be protected from any claims by Mrs. Evans' husband in a pending divorce action. The second charge alleged that Mildner attempted to impede and obstruct the very Inquiry which investigated his conduct by attempting to persuade Mrs. Evans not to cooperate with the Inquiry, by inducing her to give a false statement of facts bearing on the investigation, by executing backdated promissory notes and a false affidavit in an effort to deceive the Inquiry, and by refusing to turn over certain physical evidence requested by the Inquiry. The third charge alleged that Mildner knowingly gave false testimony to the Inquiry.

 On November 3, 1972, the Appellate Division designated the Hon. Albert S. McGrover, a Justice of the New York Supreme Court, as referee to hear and report on Mildner's alleged professional misconduct. Justice McGrover conducted extensive hearings on seven occasions between December 1972 and April 1973, compiling a record of more than 850 pages. In his 16-page written report of June 12, 1973, Justice McGrover found and concluded, inter alia, that Mrs. Evans had transferred the bulk of an inheritance from her mother's estate to Mildner "for safekeeping"; that with her consent he opened special accounts in his name to hold the funds for that purpose, giving her the passbooks; that thereafter without her knowledge he issued checks against insufficient funds for his own personal purposes which were later charged against Mrs. Evans, substantially depleting those accounts; and that Mildner's "manipulation of the funds and his failure to keep [Mrs.] Evans properly informed . . . deserves criticism." Nonetheless the referee concluded that none of the charges against Mildner had been sustained by the evidence. Thereafter cross-motions, apparently fully briefed, were made in the Appellate Division to confirm and disaffirm the report.

 On January 28, 1974, that Court, in a brief opinion, granted the motion to disaffirm the report and denied Mildner's motion to confirm after stating:

 
"In our opinion, contrary to the report, all three charges are fully sustained by the proof." *fn1"

 The Court went on to suspend Mildner for a period of three years commencing March 1, 1974, after adding:

 
"In view of all the circumstances indicated by the record and considering the respondent's evident lack of candor and contrition, it is our opinion that suspension from the practice of law for a period of three years would be a suitable and appropriate discipline to be imposed upon the respondent." *fn2"

 On March 7, 1974, the Appellate Division denied various motions by Mildner for a stay of the effective date of the suspension, leave to appeal, or reargument on the quantum of punishment imposed by the court. A motion was then made in the Court of Appeals seeking leave to appeal to that Court on three grounds: (1) a denial of due process in that the suspension order had been based on recanted testimony of an admitted perjured witness; (2) error in the Appellate Division's reversal of the referee's findings; and (3) a failure to establish the charges as a matter of law. This motion, fully briefed by both sides, was denied without opinion. In re Mildner, 34 N.Y.2d 515, 357 N.Y.S.2d 1025 (1974).

 This action was filed July 25, 1974, and the Appellate Division stayed Mildner's suspension until November 1, 1974. Judge Weinstein's order of October 23, 1974, further stayed the suspension order until this court was convened. The stay has continued in effect since the hearing on March 12, 1975, pending determination of the action by this court.

 Mildner raises several constitutional claims here. In his complaint, he alleges the deprivation of a valuable property right and privilege -- his license to practice law and thereby earn a living, as well as his professional reputation -- in violation of his rights to due process and the equal protection of the laws. The due process claim is grounded on the alleged failure of the State of New York to provide him an appeal as of right from the court of original jurisdiction in disciplinary proceedings. He adds that a denial of equal protection grows out of the fact that at least one appeal as of right from the court of original jurisdiction or determination of an administrative body is afforded all other litigants and every other person in the State of New York except disciplined attorneys.

 Mildner also alleges a denial of due process in that his suspension was allegedly based on a record which lacked sufficient evidence to support the determination, and that the suspension was in connection with a matter involving a person with whom he was not in an attorney-client relationship. Finally, Mildner adds that the three-year suspension imposed was cruel and unusual punishment under the circumstances.

 2. Levin

 Plaintiff, Milton Levin, is an attorney admitted to the Bar of the State of New York in 1934. On November 17, 1971, the Appellate Division appointed Solomon A. Klein, Esq., to institute and prosecute a disciplinary proceeding against Levin on charges stemming from a 1970 Second Department inquiry conducted by Hon. Charles W. Froessel ("Froessel inquiry"), into the activities of former State Supreme Court Justice Michael M. D'Auria. During the Froessel inquiry, Levin had discussed with investigators certain transactions between D'Auria and his (Levin's) real estate partner, Maurice Gruber, had produced various documents, and had given testimony before the inquiry. The disciplinary petition, formally filed on April 18, 1972, charged that Levin had testified falsely when he stated that $30,000 in bonds transferred to D'Auria in 1967 was a loan, alleging that it was in reality part payment of a legal fee to D'Auria rendered in connection with a zoning application in Plainview, New York. With respect to Levin's production of documents, the petition charged that four admittedly backdated documents -- a deed, a blank acknowledgment of it, a promissory note, and one relating to a boat -- were false and submitted deliberately to obstruct the inquiry.

 On October 24, 1972, the Appellate Division designated the Hon. Morton B. Silberman, Justice of the New York Supreme Court, as referee to hear and report on Levin's alleged professional misconduct. Justice Silberman conducted extensive hearings on ten different days during December 1972 and January 1973. Following submission of post-hearing memoranda and oral argument, Justice Silberman concluded, in his 25-page written report dated August 31, 1973, that Levin was innocent of both charges, as they were not sustained by the evidence. Thereafter cross-motions, apparently fully briefed, were made in the Appellate Division to confirm and disaffirm the report. Levin's request for oral argument on the motions was denied.

 On September 9, 1974, the Appellate Division, on the basis of the hearing and report of Justice Silberman, ruled upon the motions as follows:

 
"In our opinion, contrary to the report, the first charge, insofar as it relates to a document dated March 6, 1967 involving the transfer of a Chris Craft boat, was sustained by the evidence. The reporting Justice's findings with respect to the remainder of the first charge and with respect to the second charge are confirmed." *fn3"

 The Court thereupon ordered Levin suspended from the practice of law for three years.

 On October 21, 1974, Levin sought leave to appeal to the New York Court of Appeals from the suspension order, a stay pending determination of the motion for leave to appeal, and an appeal as of right on the ground that his case presented substantial constitutional questions. Following the granting of an interim stay and the filing of Klein's fully briefed opposition, the Court of Appeals, on November 20, 1974, denied without opinion Levin's motions, including apparently the request for an appeal as of right. 35 N.Y.2d 643, 362 N.Y.S.2d 1026 (1974).

 This action was commenced on November 25, 1974. On December 16, 1974, Levin's motions for a temporary restraining order and the convening of a three-judge court were granted by Judge Weinstein. On December 19, 1974, the statutory court designated to hear Mildner v. Gulotta was designated to hear this case as well. The stay has continued in effect since the hearing on March 12, 1975, pending determination of the action by this court.

 The constitutional claims Levin raises here are not dissimilar to Mildner's. The first is that New York Judiciary Law, § 90, violates the due process and equal protection clauses of the Fourteenth Amendment because, unlike all other professionals licensed by the State of New York, it affords an attorney no appeal as of right from an adverse decision in an attorney disciplinary proceeding. The other claims are all that § 90 violates the due process clause in various ways: it allows discipline to be imposed by the trier of fact without hearing the parties, observing the demeanor of the parties or witnesses, or hearing oral arguments of counsel; it empowers the Appellate Division, as trier of fact, to impose discipline without rendering a written statement of the evidence it relied upon or the reasons for its order, and without making any written findings of fact; and lastly, it empowers the Appellate Division to impose discipline on the basis of no ...


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