UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
October 9, 1975
HERBERT MILDNER, Plaintiff,
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.
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."
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."
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.
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."
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 evidence. In summary, Levin adds that he has been and will be deprived of valuable property rights, privileges or immunities (including his license to practice law and his professional reputation) in violation of the United States Constitution.
Plaintiff, Julius Gerzof, is an attorney admitted to the Bar of the State of New York in 1936. On April 18, 1972, the Appellate Division instituted disciplinary proceedings against him.
Two charges of professional misconduct were filed against Gerzof also relating to the Froessel investigation of Justice D'Auria. As summarized by the Appellate Division in its final decision in the case the first charge was soliciting and advising two other attorneys to reduce their legal fee on a zoning application so as to make available a sum of money to be used improperly to assure the granting of the applications. The second charge was that of testifying falsely at a Judicial Inquiry, where Gerzof denied committing the above solicitation.
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 Gerzof's alleged professional misconduct. Justice Silberman filed a report and a supplemental report in September 1973, after holding hearings on the charges against Gerzof, in which he concluded both charges had been sustained by the evidence. Thereafter cross-motions were made in the Appellate Division to confirm and disaffirm the report. Concluding that both charges were sustained by the evidence, that Court, on September 9, 1974, summarily confirmed the report and suspended Gerzof from the practice of law for a period of three years. In re Gerzof, 45 App. Div. 2d 450, 359 N.Y.S.2d 76 (1974).
Leave to appeal to the Court of Appeals and a stay were thereafter denied by the Appellate Division. The order of suspension was extended, however, to allow Gerzof to seek such leave from the Court of Appeals. Following the granting of an interim stay and full briefing of the motion in the Court of Appeals, that Court, on November 21, 1974, denied Gerzof's motions.
This action was commenced on November 27, 1974. On December 4, 1974, Gerzof's motions for a temporary restraining order and the convening of a three-judge court were granted. On December 19, 1974, the statutory court designated to hear Mildner v. Gulotta was designated to hear this case. The stay has continued in effect since the hearing on March 12, 1975, pending determination of the action by this court.
Among the several constitutional claims Gerzof raises here, his basic due process and equal protection claim, arising out of a denial of an appeal as of right from the court of original jurisdiction, is identical to Mildner's. His second claim is a further due process and equal protection assertion that his suspension was based upon a record insufficient as a matter of law to sustain the determination made against him. Finally, as in Mildner's case, Gerzof claims his three-year suspension, under all the circumstances, to be cruel and unusual punishment.
Mildner, Levin and Gerzof seek substantially the same relief here: a declaration that the State disciplinary procedure deprived them of constitutional rights and injunctive relief permanently enjoining defendants from suspending them from the practice of law in this State.
The New York Disciplinary Procedure
The basic statutory framework which underlies attorney disciplinary proceedings is New York Judiciary Law § 90, the relevant portions of which are set forth in the margin.
Attorneys licensed to practice in this State are officers of the New York Supreme Court, and the statute contemplates that the four Appellate Divisions of that Court shall have exclusive jurisdiction in their respective Judicial Departments to say what constitutes professional misconduct. Erie County Water Authority v. Western New York Water Co., 304 N.Y. 342, 107 N.E.2d 479, cert. denied, 344 U.S. 892, 97 L. Ed. 690, 73 S. Ct. 211 (1952). Suspension or removal of an attorney by any Appellate Division operates as a suspension or removal in every court of the State. N.Y. Judiciary Law § 90(3).
Subsection 6 of § 90 makes quite clear the obligation placed upon an Appellate Division to comply with procedural due process by, where possible, requiring personal delivery to the accused attorney of a copy of the charges against him, and allowing him an opportunity to be heard in his defense. The statute does not specify the nature and form of such hearing, or even who may conduct it. There is no doubt, however, that the ultimate responsibility for adjudicating disciplinary proceedings rests with the several Appellate Divisions, subject only to limited appeal to the New York Court of Appeals in certain classes of cases.
Subsection 8 of § 90 expressly provides that either petitioner or respondent may appeal as of right from a final Appellate Division order in a disciplinary proceeding "upon questions of law involved therein," subject only to certain limitations on the appellate jurisdiction of the Court of Appeals in the New York Constitution, Article 6, § 3.
Under those limitations the present practice appears to be that, for cases such as these, decided originally and unanimously by the Appellate Division, an appeal as of right exists only when there is directly involved the construction of the constitution of this State or of the United States, CPLR § 5601(b)(1). Otherwise, appeal is by permission of the Appellate Division or the Court of Appeals, CPLR § 5602(a). See Javits v. Stevens, 382 F. Supp. 131, 140-42 (S.D.N.Y. 1974). And the Court of Appeals has construed "directly involved" not to include due process questions arising out of the Appellate Division decision and not "necessarily involved in the decision of the case." Id. at 142. See Fryberger v. N. W. Harris Company, Inc., 273 N.Y. 115, 6 N.E.2d 398 (1937); cf. Matter of Levy, 255 N.Y. 223, 174 N.E. 461 (1931).
Under the current rules of the Appellate Division, Second Department, that Court normally institutes disciplinary proceedings upon the recommendation of a duly constituted joint bar association grievance committee, which has the power to conduct a preliminary inquiry into a specific complaint of professional misconduct. See Rules of the Supreme Court, Appellate Division, Second Department § 691.4 (McKinney Supp. 1975).
It appears to be a long-standing practice of the Appellate Divisions, once formal disciplinary proceedings are instituted, to refer the proceedings to a referee to hear and report.
Referees appear to be of two types, although their powers seem to be roughly coextensive. The first is the Official Referee, as denominated in the Judiciary Law §§ 114 et seq. The second is the Referee to Inquire and Report, CPLR §§ 4001, 4201, 4212, 4320. In either case the referee conducts a hearing, and thereafter files a report which sets forth his findings of fact and conclusions of law thereon. Following the filing of the transcript and his report with the Appellate Division, that Court, upon motion of either party, or on its own initiative, may confirm or disaffirm the report in whole or in part, may make new findings with or without taking additional testimony, and may order a new hearing. CPLR § 4403. Cf. CPLR § 5501(c); Weinstein-Korn-Miller para. 5501.20.
These statutory provisions have led to holdings to the effect that findings and conclusions by the referee in disciplinary proceedings are in no way binding on the Appellate Division, which must itself determine whether or not the charges have been sustained. E.g., In re Broome, 13 App. Div. 2d 657, 213 N.Y.S.2d 821, 822 (2d Dep't), rev'd on other grounds, 10 N.Y.2d 942, 224 N.Y.S.2d 21, 179 N.E.2d 862 (1961). This does not mean, however, that the referee's findings and conclusions are inconsequential. Since he has the opportunity to observe the witnesses and determine credibility, his decision is entitled to serious consideration by the Appellate Division. In re Gondelman, 258 App. Div. 1085, 18 N.Y.S.2d 52 (2d Dep't), modified on other grounds, 259 App. Div. 889, 20 N.Y.S.2d 410, aff'd, 285 N.Y. 624, 33 N.E.2d 553 (1941). But even on credibility questions, the Appellate Division may, and has, substituted its judgment on occasion for that of the referee. E.g., In re Kahn, 38 App. Div.2d 115, 123, 328 N.Y.S.2d 87, 95-96 (1st Dep't), aff'd, 31 N.Y.2d 752, 338 N.Y.S.2d 434, 290 N.E.2d 435 (1972).
A few other points about the procedures used in disciplinary cases are worthy of note. First, rejection of the referee's findings need not be predicated on the conclusion that they were clearly erroneous. Second, on the motions to confirm and disaffirm, there does not appear to be any obligation to afford an oral hearing or oral argument concerning adoption, modification, or rejection of the report. Third, in practice, if not in law, there appears to be no obligation on the Appellate Division to make appropriate findings or state its reasons when it does not agree with the referee. It appears that all that is deemed necessary in this regard is a summary statement reaching an opposite conclusion of law as to whether a particular charge was sustained by the evidence adduced at the hearing. Fourth, as a referee appointed to hear and report, the referee has no power to determine;7 in particular, he has no power to dismiss the charges, even if he should find them unsupported by the evidence. See In re O'Neill, 184 App. Div. 75, 80, 171 N.Y.S. 514 (1st Dep't 1918).
Plaintiffs' Constitutional Claims
To put the claims raised here in proper perspective, it is necessary to focus more closely on the precise nature of attorney disciplinary proceedings. We have been instructed, in somewhat cryptic fashion, that they are "of a quasi-criminal nature." In re Ruffalo, 390 U.S. 544, 551, 20 L. Ed. 2d 117, 88 S. Ct. 1222 (1968); Erdmann v. Stevens, 458 F.2d 1205, 1210 (2 Cir. 1972). As previously indicated, we must view disciplinary proceedings as judicial rather than administrative in nature. Id. at 1208-09.
Perhaps the most important element of such proceedings, and that which gives them their unique status, is the universal recognition that the same court before whom attorneys, acting as its officers, are admitted and practice is the tribunal which must sit in judgment of charges of professional misconduct against them. There can be no doubt about such a court's inherent power of autonomous control over the conduct of its officers.
Disciplinary proceedings, while perhaps susceptible to such a label as "quasi-criminal" or to such a terse description as "comparable to a criminal rather than to a civil proceeding," id., 458 F.2d at 1209, are in reality neither. In re Ming, 469 F.2d 1352, 1353 (7 Cir. 1972). As the Ming court put it,
"'[such] proceedings are not lawsuits between parties litigant but rather are in the nature of an inquest or inquiry as to the conduct of the respondent. They are not for the purpose of punishment, but rather seek to determine the fitness of an officer of the court to continue in that capacity and to protect the courts and the public from the official ministration of persons unfit to practice. Ex parte Wall, 107 U.S. 265, 2 S. Ct. 569, 27 L. Ed. 552 (1882). Thus the real question at issue in a disbarment proceeding is the public interest and an attorney's right to continue to practice a profession imbued with public trust. In re Fisher, 179 F.2d 361 (7th Cir. 1950), cert. denied sub nom. Kerner, et al. v. Fisher, 340 U.S. 825, 71 S. Ct. 59, 95 L. Ed. 606 (1950).'" Id.
Of course the public interest in a professional and ethical bar is not the only interest at stake in disciplinary proceedings. The sanctions involved can amount to loss of livelihood and professional reputation. See Erdmann v. Stevens, supra, 458 F.2d at 1209-10; In re Ming, supra, 469 F.2d at 1355. These are such drastic consequences for the individual attorney that the State's power to divest one of a license to practice law may not abrogate federally protected rights. Erdmann v. Stevens, supra, 458 F.2d at 1210; In re Ming, supra, 469 F.2d at 1355. See Johnson v. Avery, 393 U.S. 483, 490 n. 11, 21 L. Ed. 2d 718, 89 S. Ct. 747 (1969). Cf. Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 736, 42 L. Ed. 2d 725 (1975).
At the same time, however, the license to practice law in a particular State is so local in nature, even to the point of localized admission to practice before the various courts, that federal constitutional standards have not altered the traditionally wide discretion afforded State courts "in the establishment and application of standards of professional conduct and moral character to be observed by their court officers." Erdmann v. Stevens, supra, 458 F.2d at 1210. See also Tang v. Appellate Division, 487 F.2d 138, 143 (2 Cir. 1973). This deference arises out of a recognition of the special relationship between the attorney and the court which grants him a license to practice before it, so well summarized by Judge MacMahon:
"The intimate and delicate relationship between courts and lawyers has long justified the judiciary's careful scrutiny of the integrity and qualifications of those who practice before it. Thus, it would be peculiar, if not unreasonable, for the New York Legislature to place responsibility for disciplining attorneys and review of disciplinary proceedings elsewhere than in the courts. No other body is as well qualified or as interested in determining whether an attorney is qualified to practice law." Javits v. Stevens, supra, 382 F. Supp. at 141.
This analysis of the situation has not changed with the passage of time. As Mr. Chief Justice Marshall perceived it over a century and a half ago:
"On one hand, the profession of an attorney is of great importance to an individual, and the prosperity of his whole life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other, it is extremely desirable that the respectability of the bar should be maintained, and that its harmony with the bench should be preserved. For these objects, some controlling power, some discretion, ought to reside in the Court. This discretion ought to be exercised with great moderation and judgment; but it must be exercised; and no other tribunal can decide, in a case of removal from the bar, with the same means of information as the Court itself. If there be a revising tribunal, which possesses controlling authority, that tribunal will always feel the delicacy of interposing its authority, and would do so only in a plain case.
* * *
"The power is one which ought to be exercised with great caution, but which is, we think, incidental to all Courts, and is necessary for the preservation of decorum, and for the respectability of the profession."
Ex parte Burr, 22 U.S. (9 Wheat.) 529, 530-31, 6 L. Ed. 152 (1824); see Ex parte Garland, 71 U.S. (4 Wall.) 333, 378, 18 L. Ed. 366 (1867).
1. The Equal Protection Claim
As we understand this claim, the alleged differing treatment is the denial to disciplined attorneys of the right to the full scope of appellate review afforded to all other "litigants," and, in particular, all other "professionals" whose licenses to practice are revoked or suspended. There is no dispute that appeals as of right are quite limited in attorney disciplinary cases. Since the Appellate Divisions sit as courts of original jurisdiction in these cases, they cannot act in their traditional or more usual capacity as the court of primary appellate jurisdiction. In fact, as all parties stressed at oral argument, when the Appellate Division acted on the referees' reports, it was not functioning in an appellate capacity. Instead, the Court of Appeals is the sole court of appellate jurisdiction in these cases, and is so as of right only for certain cases or questions as summarized above. In contrast, decisions which find other New York licensed professionals guilty of professional misconduct are subject to much broader appellate review.
While it is true that where the right to an appeal is afforded some litigants and capriciously and arbitrarily denied to others, there is a violation of the Equal Protection Clause, Lindsey v. Normet, 405 U.S. 56, 77, 31 L. Ed. 2d 36, 92 S. Ct. 862 (1972), identification of differing treatment is only the beginning of an equal protection inquiry. There must be recognition that, in disciplining professionals, the State may legitimately find reason to conclude that differing procedural safeguards are appropriate for different professions. See Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610-11, 79 L. Ed. 1086, 55 S. Ct. 570 (1935); Pordum v. Board of Regents of State of New York, 491 F.2d 1281, 1286 (2 Cir. 1974). Thus there is no equal protection problem when the denial of appellate rights to attorneys to the same extent afforded other professionals or litigants is reasonable, resting "upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike."
We have no difficulty finding this standard of constitutionality adequately met in this case. We agree with the reasoning of Judge MacMahon in Javits, supra, wherein he concluded there was no denial of equal protection in New York's failure to make Article 78 review proceedings available to attorneys. The claim here is no more than another facet of the one made in Javits; it makes no difference whether one focuses on the disparity itself or on the various means of redressing it.
As described above, the discipline of attorneys is a special responsibility which, ultimately, must rest with the courts. The New York legislature has decided that it is best for the judicial body which licenses attorneys to function also in situations where the right to continued use of that license is properly called into question. Thus, the vesting of original jurisdiction with the Appellate Divisions over disciplinary matters is of itself no denial of equal protection.
Nor is the denial of an appeal as of right on all questions of law or fact arbitrary or capricious. Having vested the initial determination function with the courts rather than an administrative agency, the legislature might well have concluded that the obligatory judicial review normally -- if not presumptively -- required for administrative decisions was not required when the initial determination was by a court.
The legislature has apparently concluded that when there is no division of opinion among the several Appellate Division judges who rule finally on a disciplinary matter, the Appellate Division's findings and conclusions, to the extent they do not involve constitutional questions, are to be conclusive, at least to the extent the losing party is unable to convince either the Court of Appeals or the appropriate Appellate Division to afford a discretionary appeal.
While the plaintiffs have made much of the unfairness of this approach as opposed to the arguable wisdom of some procedure that would afford a fuller appellate review, the Equal Protection Clause was not meant to strike down legislative classifications that are merely unwise, improvident or capable of improvement. Here the legislature may well have concluded it was necessary to entrust the grave responsibility for final adjudications of what constitutes professional misconduct to a judicial body in the first instance, and to provide a forum of no less stature than the Appellate Division. And the legislature has required the Court of Appeals, consistent with its constitutional limitations in other cases, as well as its crowded docket, to provide obligatory review of such final decisions only to the extent previously indicated. In sum, the judicial bodies best suited to finally adjudicate the issues that arise in cases of this nature do just that in a manner that could by no stretch of logic be called arbitrary or capricious. We agree with the court in Javits that there is no violation of equal protection in the procedure adopted by New York for the review of disciplinary proceedings. 382 F. Supp. at 141.
2. The Due Process Claim
Plaintiffs challenge the Appellate Division's procedures under Judiciary Law § 90 as constitutionally defective in failing to afford accused attorneys a full, fair and meaningful opportunity to be heard by the statutory trier-of-fact. More specifically, they complain (1) that beyond submission of written briefs, there is no opportunity to have the parties or witnesses heard by the body charged with the adjudicative responsibility; (2) there is no requirement, when a referee's conclusion exonerating an attorney is summarily disaffirmed, that either the reasons for disaffirmance be stated or that written findings of fact be made by that court; and (3) there is no appeal as of right from an adverse decision of the court of original jurisdiction. These defects in procedure they claim brought about their suspensions on the basis of no evidence.
All of the criticized features appear to be present in disciplinary procedures in the Second Department, which are ostensibly conducted in compliance with § 90(6) of the Judiciary Law. Section 90, we note, is plainly not unconstitutional on its face and does, in fact, appear to comport with traditional notions of due process. The critical question is whether it can truly be said that any of those procedural features operates to deny accused attorneys a fundamentally fair hearing of the charges against them, thereby resulting in an unconstitutional application of the statute. We think not.
First, while we agree that the opportunity to hear and observe the demeanor of witnesses is an essential element in the weighing and appraising of testimony, see Wingo v. Wedding, 418 U.S. 461, 94 S. Ct. 2842, 2850, 41 L. Ed. 2d 879 (1974), its importance diminishes when facts are developed and inferences may be drawn without reference to credibility. As already pointed out, a disciplinary proceeding is not a full-blown trial but an inquest and a gathering of facts concerning the conduct of an attorney, a subject more likely to be illuminated by the evidence of the attorney's own acts than by what is said or not said by someone else. The referee's report in the Mildner case exemplifies the precise situation in which the documented evidence of the attorney's questionable financial transactions with another's money far outweighed the vacillating testimony of the complaining victim.
Nor, in our opinion, is it constitutionally required that the Appellate Division as final arbiter of the facts have personally heard the accused attorneys or other witnesses or have allowed oral argument upon the motions to confirm or disaffirm the referees' reports. The use of masters or referees as advisory triers-of-fact is a well-established instrument of busy appellate courts exercising original jurisdiction. The Supreme Court itself utilizes the practice when disputed factual issues appear in original actions. R. Stern & E. Gressman, Supreme Court Practice, Sec. 10.12 at 407-08 (4th ed. 1969). Although oral argument to the Court is allowed on the master's report in such matters, id., this is not ordinarily the case in disbarment proceedings. See In re Capshaw, 65 S. Ct. 673, 1945 U.S. LEXIS 2632 (1945), and 67 S. Ct. 1345, 1947 U.S. LEXIS 2885 (1947); In re Crow, 359 U.S. 1007, 1008, 3 L. Ed. 2d 1025, 79 S. Ct. 1152 (1959) (Douglas, J., dissenting opn.); Stern & Gressman, supra, Sec. 19.5.
Second, with respect to the criticism that the court provided no reasons or new findings in overruling the referees in the Mildner and Levin cases, we have not been referred to and are unaware of any authority for the proposition that the absence of such a statement in a judicial context offends due process. The rule in administrative law cases, many of which are cited by plaintiffs,
is of little help in disciplinary proceedings. Special factors applying to administrative proceedings which call for a written statement of findings and reasons are not present here. See K. Davis, Administrative Law Text §§ 16.03, 16.07 (1972).
However terse the Appellate Division's decisions in these cases, they made it clear that that Court disagreed with the respective referees' ultimate conclusions in Mildner and Levin as to what the compiled evidence showed on the issue of professional misconduct -- a mixed question of law and fact as to which the Appellate Division is the statutory arbiter. That the final decision was adverse to the attorneys is not evidence that the court reached it in a manner incompatible with due process.
Third, with respect to the criticized denial of appeal as of right, there is abundant authority for the proposition that outright denial or abridgment of independent, obligatory appellate review of judicial decisions is not a denial of due process. If this is so even in criminal cases,
it is a fortiori so in "quasi-criminal" cases such as these, Javits v. Stevens, supra, 382 F. Supp. at 140.
Finally, as to the claim of suspension on the basis of no evidence, we agree with the Attorney General that it appears to be an attempt to relitigate the merits of the State proceedings. Into that area we may not intrude. As Judge MacMahon aptly noted in Javits v. Stevens, supra, a review of State court proceedings for possible constitutional error lies exclusively in the jurisdiction of the Supreme Court. 382 F. Supp. at 137. More specifically, § 1983 does not extend the right to relitigate in a federal district court evidentiary questions which have been adjudicated on the merits in State proceedings, upon the claim that there was no evidence to support the State action. Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 1001-03, 43 L. Ed. 2d 214 (1975).
We would therefore reject those claims raised in the Mildner and Gerzof complaints which suggest that the lack of evidentiary basis for the decisions was itself a denial of due process or equal protection, or constituted, when the resultant discipline was decreed, cruel and unusual punishment. See, e.g., MacKay v. Nesbett, 412 F.2d 846 (9 Cir.), cert. denied, 396 U.S. 960, 24 L. Ed. 2d 425, 90 S. Ct. 435 (1969); Jones v. Hulse, 391 F.2d 198 (8 Cir.), cert. denied, 393 U.S. 889, 21 L. Ed. 2d 167, 89 S. Ct. 206 (1968); Ginger v. Circuit Court, 372 F.2d 621 (6 Cir.), cert. denied, 387 U.S. 935, 18 L. Ed. 2d 998, 87 S. Ct. 2061 (1967); In re Rhodes, 370 F.2d 411 (8 Cir.), cert. denied, 386 U.S. 999, 18 L. Ed. 2d 349, 87 S. Ct. 1321 (1967); Clark v. State of Washington, 366 F.2d 678 (9 Cir. 1966); Gately v. Sutton, 310 F.2d 107 (10 Cir. 1962); Saier v. State Bar of Michigan, 293 F.2d 756 (6 Cir.), cert. denied, 368 U.S. 947, 7 L. Ed. 2d 343, 82 S. Ct. 388 (1961).
As noted at the outset, and for the reasons outlined, these cases, in the writer's opinion, especially call for dismissal on the ground of abstention. I find additional support for this conclusion in the Court's reasoning in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975). Read narrowly, that case held that the standards stated in Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), must be met to justify federal intervention in a State judicial proceeding as to which a losing litigant has not exhausted his State appellate remedies. Subsequent cases leave no doubt that this decision reaches pending New York disciplinary proceedings. Anonymous v. Association of the Bar of the City of New York, 515 F.2d 427 (2 Cir.), cert. denied, 423 U.S. 863, 96 S. Ct. 122, 46 L. Ed. 2d 92 (1975); Anonymous J. v. Bar Association of Erie County, 515 F.2d 435 (2 Cir.), cert. denied, 423 U.S. 840, 96 S. Ct. 71, 46 L. Ed. 2d 60 (1975).
See also Wallace v. Kern, 520 F.2d 400 (2 Cir. 1975).
I do not agree with plaintiffs' contention that these cases are readily distinguishable from the principles enunciated in Huffman simply because the disciplinary proceedings involved here are no longer "pending" at some level of the State courts. Had all the claims raised here been raised in the State courts -- which they apparently were not -- and finally decided adversely to plaintiffs, a direct appeal would lie as a matter of right to the United States Supreme Court under 28 U.S.C. § 1257(2). Huffman v. Pursue, Ltd., supra, 95 S. Ct. at 1209. Moreover, issuing a stay of a final judgment of a State court is at least as significant an intrusion into State matters as enjoining prosecution of disciplinary proceedings prior to judgment. See 95 S. Ct. at 1210. In noting that the standards of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), may not be avoided by simply failing to perfect an appeal, Huffman also makes clear that the exhaustion doctrine makes no exception for those who avoid raising constitutional issues the State courts are empowered -- indeed obliged -- to consider. See 95 S. Ct. at 1211 n. 22.
Plaintiffs also argue, not without some force, that their constitutional claims concerning denial of an appeal as of right were hardly ripe until obligatory review had in fact been denied by the New York Court of Appeals. They question the need or justice of requiring them to make what they believe to be futile motions for reargument on the constitutional claims such a denial raised. Even a timely motion for reargument would be raising a "new point" of which the parties could not be assured consideration.
But any properly raised challenge to Judiciary Law § 90 -- short of an express refusal by the Court of Appeals to reach the issue
-- would support an appeal to the Supreme Court under 28 U.S.C. § 1257(2), even if the claims were not explicitly rejected by the Court of Appeals. See R. Stern & E. Gressman, Supreme Court Practice, Sec. 3.4 at 85 (4th ed. 1969).
While plaintiffs' arguments are not without attraction, I am persuaded that close analysis of Huffman and other authorities mandates abstention in each of these cases. In Huffman, appellee Pursue, Ltd., was a defendant in a State court nuisance proceeding, brought under the Ohio public nuisance statute by the county sheriff and prosecuting attorney, appellants Huffman, et al., for the display of allegedly obscene films. Pursue lost at the trial court level and failed to appeal, electing instead to proceed as a plaintiff in the federal district court under 42 U.S.C. § 1983, attacking the constitutionality of the nuisance statute on First Amendment grounds. In reversing the three-judge district court's decision granting Pursue injunctive relief, the Court held that even though the State trial court's decision had obviously become final and nonappealable,
"the District Court should have applied the tests laid down in Younger in determining whether to proceed to the merits of appellee's prayer for relief . . . ." 95 S. Ct. at 1209-10.
Huffman must thus be read as holding that federal plaintiffs who actually are involuntary State defendants, and who have a constitutional defense arising out of State actions, cannot resort to a federal forum prior to seeking a State resolution of the merits of their constitutional claim. It is therefore apparent that the Huffman and Anonymous cases, supra, are not distinguishable merely because an appeal is no longer pending in the State courts in any of these cases.
It might be thought that this reasoning is inapplicable to the situation here, where the constitutional claim goes to the adequacy of the very procedures to which we would otherwise defer. The argument is not without factual support in the Huffman and Anonymous cases,
but must be rejected here. In so concluding, I consider Gibson v. Berryhill, 411 U.S. 564, 36 L. Ed. 2d 488, 93 S. Ct. 1689 (1973), and Lombard v. Board of Education, 502 F.2d 631, 636 (2 Cir. 1974), cert. denied, 420 U.S. 976, 95 S. Ct. 1400, 43 L. Ed. 2d 656 (1975), to be inapposite.
Gibson involved a due process claim of bias in an administrative tribunal. The Court held that resort to the federal courts during the pendency of the administrative proceedings was not precluded by Younger, where the competency of the tribunal was the predicate of the constitutional (due process) issue involved. As the Court noted, Younger abstention "presupposes the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved." 411 U.S. at 577. Subsequently, however, the Court strongly suggested that the result in Gibson turned primarily upon the fact that the proceedings were administrative in nature. See Huffman v. Pursue, Ltd., supra, 95 S. Ct. at 1203; Anonymous v. Association of the Bar of the City of New York, supra, 515 F.2d at 432-33 n. 3.
Here the proceedings in the State courts, as they were in Huffman, are undeniably judicial in nature, Erdmann v. Stevens, supra, 458 F.2d at 1208-09, an important feature of the exhaustion requirement. In Huffman the Court, citing the Supremacy Clause, rejected any suggestion that in judicial proceedings "state judges will not be faithful to their constitutional responsibilities." 95 S. Ct. at 1211; see Anonymous v. Association of the Bar of the City of New York, supra, 515 F.2d at 435. This conclusion has even more force when the claim here, unlike Gibson, is not one of actual bias in the State judiciary or proceedings, but one of procedural inadequacy. We see no reason why State court judges are not competent to pass on the constitutionality of their own procedures, including a claimed unfair denial of obligatory review.
Lombard, supra, another pre- Huffman case, applied the principle that 42 U.S.C. § 1983 provides a "federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked," citing Monroe v. Pape, 365 U.S. 167, 183, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). Lombard, a dismissed probationary employee, had elected in the first instance to bring an Article 78, CPLR, proceeding in the State courts, seeking reinstatement as a teacher. Following an adverse decision on the merits, which became final after his appeal, Lombard brought his § 1983 action in the federal courts, raising for the first time procedural due process issues not dissimilar to those raised here.
Lombard's situation is thus distinguishable from the attorneys in the instant cases only in the sense that Lombard was not an involuntary State defendant but a voluntary plaintiff who made his own election to preserve his federal claims for a federal forum. But as indicated above, I read Huffman as having made this distinction crucial; as a defendant in a State proceeding, the only way Pursue could "preserve" its federal claim was to raise it in the State forum. As the dissent noted, "the mere filing of a complaint against a potential § 1983 litigant forces him to exhaust state remedies." Huffman v. Pursue, Ltd., supra, 95 S. Ct. at 1216 (Brennan, J., dissenting); see id., 95 S. Ct. at 1211 n. 21. Moreover, Lombard did not deal with the Younger abstention issue itself, but only with the broader question of whether or not Lombard's failure to raise the constitutional claims in the State forum precluded his raising them in the federal forum on grounds of waiver, collateral estoppel, or res judicata.
In concluding that we ought to abstain in these cases I am not unmindful that it would be more expeditious for all concerned if this court, now well familiarized with the issues raised, were to rule on the merits of the claims, from which a direct appeal to the Supreme Court would lie, 28 U.S.C. § 1253, MTM, Inc. v. Baxley, 420 U.S. 799, 95 S. Ct. 1278, 1281, 43 L. Ed. 2d 636 (1975), rather than relegate plaintiffs to State remedies which may no longer exist. But expedience cannot overcome the principle that, for sound policy reasons tied to the unique and peculiarly State-oriented function attorney disciplinary proceedings serve, Erdmann v. Stevens, supra, 458 F.2d at 1210; Anonymous v. Association of the Bar of the City of New York, supra, 515 F.2d at 432, the federal courts must be extraordinarily reluctant to interject themselves into such proceedings. Therefore, although agreeing that the plaintiffs' constitutional claims are without merit, I believe these cases call for the application of the Younger abstention rule and should be dismissed on that ground.
The Clerk is directed to enter judgment dismissing the complaints. Since serious procedural and substantive issues are presented, we unanimously agree that the stays previously entered will be continued pending disposition on appeals.
/s/ LEONARD P. MOORE / U.S.C.J.
/s/ EDWARD R. NEAHER / U.S.D.J.
Dated: Brooklyn, New York October 9, 1975