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ANONYMOUS v. GRIEVANCE COMM. FOR THE SECOND & ELEV

December 12, 1986

In the Matter of Anonymous, an Attorney, PETITIONER #1, PETITIONER #2, PETITIONER #3, PETITIONER #4, PETITIONER #5, PETITIONER #6, PETITIONER #7, Petitioner,
v.
GRIEVANCE COMMITTEE FOR THE SECOND AND ELEVENTH JUDICIAL DISTRICTS; SUPREME COURT OF THE STATE OF NEW YORK, APPELLATE DIVISION FOR SECOND JUDICIAL DEPARTMENT; ROBERT ABRAMS, Attorney General for the State of New York, Respondents



The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 Facts

 This is a petition for a writ of habeas corpus. 28 U.S.C. § 2254. Petitioners are secretaries at the firm of a Queens, New York lawyer who, along with three of his associates, was indicted in Kings County on charges of, among other things, conspiracy and fraud. That attorney was later convicted of twenty-six crimes and suspended from the practice of law.

 In December 1984 and January 1985, the secretaries were subpoenaed and testified before a Kings County grand jury under a grant of transactional immunity conferred pursuant to New York Crim. Proc. Law § 190.40(2). The questioning focused on the practice of the attorney who was convicted and is now suspended (attorney A); all but one of the petitioners recollect being asked some peripheral questions about one of the associates (attorney B). Attorney B is now the subject of a disciplinary proceeding conducted by the respondent Grievance Committee.

 Petitioners were subpoenaed to testify before the Grievance Committee, and appeared in March and April 1985. Each refused to answer the questions propounded, stating that to do so might be incriminating and that the transactional immunity previously conferred for their grand jury testimony did not give them similar immunity for the testimony to be given at the disciplinary proceeding. Despite the warning that a continued refusal to answer questions before the Grievance Committee could result in contempt penalties, petitioners did not change their position.

 The Grievance Committee responded by moving in the Appellate Division, Second Department, for the imposition of contempt sanctions. That court, by Order dated September 11, 1985, referred the matter back to the Honorable Harry J. Donnelly, the Special Referee presiding over the disciplinary proceeding. The Appellate Division reminded the Special Referee to direct the witnesses to answer, a formality that had not been followed when the petitioners first appeared before the Grievance Committee. The Appellate Division told the Referee that if petitioners refused to testify, he was to submit a report and findings regarding their possible contempt.

 When the disciplinary proceeding resumed in December 1985, the Special Referee formally ordered petitioners to testify. When they refused, they were held in contempt, but were offered the opportunity to purge themselves the following week. None did so. *fn1"

 On June 6, 1986, *fn2" the Appellate Division issued an order holding each petitioner in contempt and ordering her to pay a fine of $250 and to go to prison until she testified. The order stated simply that the secretaries "had already been granted full transactional immunity by the Grand Jury pursuant to CPL § 190.40(3) concerning the same subject matter and thus [their] invocation of the privilege against self-incrimination had no basis in law." *fn3"

 Petitioners then sought and received from the New York Court of Appeals a stay of enforcement of the Appellate Division order pending appeal. The Grievance Committee then moved the Court of Appeals to vacate the stay and dismiss the appeal for lack of jurisdiction. It did so in its order of September 4, 1986, stating only that the "appeal taken as of right [is] dismissed, without costs, upon the grounds that the order appealed from does not finally determine the proceeding within the meaning of the Constitution and no substantial constitutional question is directly involved."

 After the vacatur of stay, petitioners filed in this Court for a writ of habeas corpus. On September 22, 1986 this Court stayed the Appellate Division order pending determination of the petition.

 Discussion

 A. Exhaustion

 Respondents argue that the petition should be dismissed for failure to exhaust state remedies. Petitioners' appeal of the Appellate Division order to the Court of Appeals was brought as of right pursuant to New York C.P.L.R. § 5601(b), which permits appeals as of right when a constitutional question is involved. Respondents suggest that petitioners can try again, pursuant to C.P.L.R. § 5602, which permits applications for leave to appeal to the Court of Appeals. Respondents contend, without ...


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