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May 22, 1978

J. JEROME OLITT, Plaintiff,
FRANCIS T. MURPHY, JR., individually as Presiding Justice of the Appellate Division of the Supreme Court of the State of New York, First Judicial Department, and as Administrator concerning the conduct of members of the New York Bar, ARTHUR MARKEWICH, MYLES J. LANE, SAMUEL J. SILVERMAN, HAROLD BIRNS, JOSEPH P. SULLIVAN, THEODORE R. KUPFERMAN, HERBERT EVANS, ARNOLD FEIN, LEONARD SANDLER and VINCENT A. LUPIANO, individually, as Associate Justices of the Appellate Division of the Supreme Court of the State of New York, First Judicial Department and as Administrators concerning the conduct of members of the New York Bar, JOSEPH J. LUCCHI, individually and as Clerk of the Appellate Division of the Supreme Court of the State of New York, First Judicial Department, JAMES D. PORTER, JR., individually and as Counsel to the Committee on Grievances of the Association of the Bar of the City of New York, THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, THE APPELLATE DIVISION OF THE SUPREME COURT OF THE STATE OF NEW YORK, FIRST JUDICIAL DEPARTMENT, SHELDON OLIENSIS, individually and as Chairman of the Committee on Grievances of the Association of the Bar of the City of New York, and WILLIAM E. JACKSON, RICHARD KUH, LOLA S. LEA, MATTHEW J. MALLOW, ARCHIBALD R. MURRAY, ALFRED J. SCOTTI, WILLIAM B. O'BRIEN, ANGELO T. COMETA, EMELIO P. GAUTIER, JOHN DONOVAN, STEVEN J. STEIN, M. MORAN WESTON, JOHN G. McGOLDRICK, GEOFFREY M. KALMUS, MARTIN LONDON, DONALD B. STRAUS, EDWARD J. BABB, JOHN W. CASTLES III, EDWIN J. WESLEY, HAYWOOD BURNS, EVELYN HALPERT, SELVYN SEIDEL, HELENE M. BARNETTE, JOHN H. DOYLE III, WILLIAM J. GILBRETH, DAVID RAMAGE, JR., ALVIN H. SCHULMAN, individually and as members of the Committee on Grievances of the Association of the Bar of the City of New York, Defendants.

The opinion of the court was delivered by: WEINFELD


This is the fourth action instituted in this Court by plaintiff, an attorney who has been the subject of state bar disciplinary proceedings.In this, his latest action, he seeks to stay and void an order of the Appellate Division, First Department, suspending him from the practice of law for three years, which was entered upon a report of a Referee who had conducted a full evidentiary hearing. Plaintiff's three prior actions, discussed hereafter in greater detail, were dismissed under the doctrine of abstention because of the still pending state disciplinary proceedings. Following the dismissal of his third action, plaintiff returned to the state courts and filed as of right an appeal to the New York State Court of Appeals from the order of suspension pension and also moved for leave to appeal to that Court, both of which were dismissed for want of a substantial constitutional question.

 In this current federal action, plaintiff seeks an adjudication of his federal constitutional claims, which he asserts he expressly reserved for this Court's decision under England v. Louisiana State Board of Medical Examiners. *fn1" Basing these claims upon 42 U.S.C., section 1983, plaintiff here seeks declaratory and injunctive relief barring the Appellate Division from imposing any disciplinary sanction upon him pending federal court determination of his federal constitutional claims, absent which he contends the state courts lack jurisdiction; a judgment declaring the Appellate Division order of suspension null and void and a declaration that the Appellate Division order does not by itself automatically carry with it suspension from practice in the federal courts. *fn2" Plaintiff's essential claim is an absolute right to have the federal courts consider and pass upon those claims of violation of his federal constitutional rights. As stated by him, the key issue is "whether or not the State Court may discipline me pending the resolution of my Federal claim in this Court as a result of my reserving my rights to litigate those Federal questions involved in the State Court disciplinary proceedings in the United States District Court." The matter is now before the Court on plaintiff's motion for a preliminary injunction and the defendants' cross-motion to dismiss the complaint. *fn3"

 The underlying factual situation which led to plaintiff's suspension was summarized by the Appellate Division in its per curiam order confirming the Referee's finding that plaintiff (there respondent) was guilty of professional misconduct: *fn4"

 The Referee found that in 1965 the respondent, representing a builder, sought to have a zoning change application, submitted on behalf of a rival builder, delayed.The respondent thereafter delivered money in cash to a person who claimed he could effect such delay.

 In October, 1968, plaintiff, following the assertion of his Fifth Amendment privilege against self-incrimination, was granted transactional immunity and testified before a grand jury concerning his involvement in the above matter. He alleges that the District Attorney, in addition to this grant of immunity, represented that he would neither refer the subject matter of the investigation to the defendant Grievance Committee (the "Committee") nor himself initiate disciplinary proceedings. Allegedly through independent sources, the Committee became aware of plaintiff's involvement with both the factual situation and the grand jury proceedings. In February 1971, an ex parte application was made to a Justice of the State Supreme Court, who granted an order which made available the immunized testimony to the Committee. Disciplinary proceedings against plaintiff were instituted in January 1973, in the course of which plaintiff's immunized testimony was introduced as part of the Committee's case.

 During the pendency of the disciplinary proceedings, plaintiff commenced the first of his federal actions, contending that the Committee's use of the immunized testimony violated his rights under the Fifth Amendment of the United States Constitution. This Court, per Judge Griesa, dismissed plaintiff's case due to the ongoing state proceedings, *fn5" citing Younger v. Harris *fn6" and Erdmann v. Stevens, *fn7" the Second Circuit's decision applying Younger to bar disciplinary proceedings; Judge Griesa observed that plaintiff's future course should be "'the traditional method of obtaining adjudication of federal constitutional questions arising out of... disciplinary proceedings' -- i.e., state court action followed by request for Supreme Court review." Judge Griesa's dismissal of plaintiff's action was unanimously affirmed by our Court of Appeals, which relied not only upon Younger and its own decision in Erdmann, but also upon the then recently decided Huffman v. Pursue, Ltd., *fn8" stating: *fn9"

 Whatever federal constitutional questions are involved here can certainly be raised in the state courts and ultimately addressed to the Supreme Court, and appellant proffers no contrary contention.

 Plaintiff returned to the state courts, raising his Fifth Amendment claim as well as other federal constitutional claims as affirmative defenses. *fn10" At the same time, however, plaintiff expressly "[reserved] his right to litigate his Federal Constitutional Claims in the Federal court," as suggested in England v. Louisiana State Board of Medical Examiners. *fn11" After plaintiff's motion to dismiss the disciplinary proceedings on the basis of his affirmative defenses was denied by the Appellate Division, the Referee rendered his report sustaining the charges. The Committee moved to confirm the report and impose discipline; plaintiff cross-moved to stay the imposition of discipline, contending that because of his "England reservation" the Appellate Division was without jurisdiction to impose discipline prior to resolution of plaintiff's federal claims in federal court.

 During the pendency of the foregoing motion and cross-motion, plaintiff commenced his second federal action, seeking an order enjoining the state's imposition of discipline until his federal claims were resolved in the federal courts. Again, the action was dismissed on Younger/Huffman grounds. *fn12" Judge Ward also noted, however, that plaintiff's purported reliance on England was "misplaced because the procedures formulated in that case relate specifically to the Pullman doctrine of abstention *fn13" ... not to the Younger doctrine upon which abstention in plaintiff's federal actions has been premised." Upon dismissal of plaintiff's second federal action, the Appellate Division entered an order confirming the Referee's report and ordering plaintiff suspended for a period of three years.

 Shortly thereafter, plaintiff commenced his third federal action, again seeking a declaration that the state was without jurisdiction to impose discipline pending resolution in this Court of his federal constitutional claims. Again, plaintiff's case was dismissed on Younger grounds *fn14" as he had not yet exhausted his state appellate remedies as required under Huffman. *fn15" Again, plaintiff was told that his reliance upon England was misplaced -- indeed, the Court restated the Second Circuit's comment quoted above.

 Plaintiff then filed a notice of appeal as of right in the New York State Court of Appeals and also moved there for leave to appeal from the Appellate Division order of suspension. *fn16" Although continuing to contend that his federal claims were reserved for federal court determination, he claimed an appeal as of right "upon the ground that there is directly involved the construction of the United States Constitution." The proffered claims of violations of federal constitutional rights and also the grounds in support of plaintiff's motion for leave to appeal were: (a) the use of his immunized grand jury testimony in derogation of his Fifth Amendment rights; (b) the District Attorney's alerting, contrary to his representation, the Grievance Committee to plaintiff's grand jury testimony and his participation in the events, thus bringing into play the Second Circuit's decision in Palermo v. Warden, 545 F.2d 286 (2d Cir. 1976), cert. dismissed, 431 U.S. 911, 97 S. Ct. 2166, 53 L. Ed. 2d 221 (1977); (c) defendants' laches in instituting the disciplinary proceeding in violation of plaintiff's right to a speedy trial; (d) the referee's exclusion of plaintiff's polygraph expert's testimony, thereby denying plaintiff the right to a fundamentally fair trial; and (e) the ex parte order authorizing transmission of the immunized testimony violated plaintiff's due process rights. As already noted, the New York Court of Appeals denied plaintiff leave to appeal and dismissed the appeal as of right on the ground that "no substantial constitutional question is directly involved." Thereupon the order of suspension became effective as of May 10, 1978.

 Plaintiff then commenced this, his fourth federal action.The constitutional issues he seeks to have adjudicated are exactly the same five listed above presented to the state courts. He nevertheless contends that since he expressly reserved these issues for this Court's decision by his purported England reservation, he is entitled to have this Court pass upon and decide them.

 Plaintiff's persistent and stubborn reliance upon England v. Louisiana State Board of Medical Examiners *fn17" is misplaced. As plaintiff has been repeatedly told, England is simply irrelevant when a federal court has dismissed a case on Younger/Huffman grounds. England is an adjunct of pullman abstention and provides that where constitutional challenge is made to a state statute in federal court, and that statute is susceptible of construction avoiding or modifying the federal questions presented, the federal plaintiff will be required to obtain an authoritative construction of that statute in the state court; and, if England is thus observed, that plaintiff is assured a return to the pending federal suit to litigate the federal claims. *fn18" When a state ...

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