Middlesex County Ethics Committee v. Garden State Bar Association

PETITIONER:Middlesex County Ethics Committee
RESPONDENT:Garden State Bar Association
LOCATION:Mississippi University for Women

DOCKET NO.: 81-460
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 457 US 423 (1982)
ARGUED: Mar 31, 1982
DECIDED: Jun 21, 1982

Mary Ann Burgess – on behalf of the Petitioner
Morton Stavis – on behalf of the Respondent

Facts of the case


Audio Transcription for Oral Argument – March 31, 1982 in Middlesex County Ethics Committee v. Garden State Bar Association

Warren E. Burger:

Ms. Burgess, you may proceed whenever you’re ready.

Mary Ann Burgess:

Mr. Chief Justice, and may it please the Court:

The present case involves a strong public policy consistently fostered by this Court against interference with state proceedings by federal courts either by way of injunction or declaratory remarks.

The court below declined to follow this policy and interfered in an ongoing state bar disciplinary process, thereby inserting itself into the delicate relationship between a state judiciary and attorney’s license to practice before it.

The case therefore provides this Court with an opportunity to consider the application of the policy of noninterference articulated in Younger and amplified by its progeny to attorney disciplinary proceedings, and to firmly establish the appropriateness of federal noninterference to such proceedings which involve such significant and important state concerns.

It must be underscored that what this case does not involve is the constitutionality of particular disciplinary rules or whether an attorney violated those rules.

What is at stake is whether the State Supreme Court can articulate and develop standards governing attorney discipline and discipline attorneys who have been charged with violating those standards free and unfettered from federal intervention.

However, in order to fully appreciate the issues that this raises it is necessary to briefly discuss the factual setting in which it arose.

The case has its origin in the criminal trial of Joanne Chesimard who was charged with the murder of a New Jersey state trooper.

During the jury selection process in this trial Lennox Hinds, an attorney in New Jersey, called a press conference concerning the conduct of that trial, and more particular, that of the trial judge.

Reports of the press conference–

Had there been any advance… had there been any advance indication from the judge directing all counsel not to have any public statements?

Mary Ann Burgess:

–It is my understanding, Chief Justice, that there was an order of some type directed to the counsel in the case, and I believe that during the press conference Mr. Hinds indicated that he was speaking on behalf of the counsel in the case because they had been gagged by the trial court judge.

That was report in the news article which appeared in the New York Daily News and the Newark Star Ledger.

The report–

He was not himself of counsel, is that right?

Mary Ann Burgess:

–He was not of counsel in that particular trial, yes, Chief Justice.

It was reported in these articles that Mr. Hinds had called the proceeding a travesty, had indicated that Judge Appleby, the trial judge, was without judicial temperament or racial sensitivity to sit as an objective judge in this particular trial.

It was reported that he called the… that he accused the judge of asking self-serving questions which was leading to the creation of a hangman’s court.

David Foley, a member of the Middlesex County Ethics Committee, brought these articles to the attention of the committee.

He was authorized to investigate the matter and determine whether there were any possible infractions of the New Jersey disciplinary rules.

He communicated by letter with Mr. Hinds and asked for an opportunity to meet with him and discuss the reports that had been circulated, had been reported in the papers.

Mr. Hinds declined to meet with Mr. Foley, and although the attorney disciplinary process is a private, confidential process, he disclosed that initial communication at a press conference, and it was widely publicized in the papers.

In order to protect the jury trial that was still in process the committee determined not to proceed with the investigation until the trial itself had been concluded.

When it was concluded, the investigation was reactivated and Mr. Foley again attempted to meet with Mr. Hinds to discuss the matter.

After several unsuccessful attempts, the investigation went on without Mr. Hinds’ cooperation.

When it was concluded, Mr. Foley recommended that a statement of charges be filed against Mr. Hinds.

Ms. Burgess, I wonder if you’d try to speak just a little louder, would you?

Mary Ann Burgess:


Indicating that he had been… had violated Disciplinary Rule 1-102(A)(5) in that the statements were prejudicial to the administration of justice; and secondly, that these statements violated DR 7-107(D) in that they were made during the jury selection process and were reasonably likely to interfere with a fair trial in that they were intended to influence the taking of prospective jurors.

Mary Ann Burgess:

The latter disciplinary rule had been adopted by the Supreme Court of New Jersey following the decision of this Court in Shepherd v. Maxwell wherein the Court urged all state courts to adopt rules designed to protect the criminal trial process from prejudicial outside interferences in order to assure a fair trial guaranteed by the Sixth Amendment.

In accordance with the recommendations of Mr. Foley the committee did in fact issue a statement of charges against Lennox Hinds.

However, instead of answering those charges, Mr. Hinds initiated… Mr. Hinds, together with three organizations of minority attorneys, initiated a complaint in federal district court.

In that action they sought to enjoin the ethics… the processing of the ethics complaint and also to obtain a declaratory judgment that the disciplinary rules under which he was charged were unconstitutional.

Significantly, the complaint never alleged that Mr. Hinds could not adjudicate these constitutional claims within the context of the New Jersey attorney disciplinary process.

Rather, it suggests… actually it states that these… both the Ethics Committee and the Supreme Court were somehow biased and that they could not objectively review the constitutionality of the rules that had been adopted by the Supreme Court.

The district court dismissed the complaint under Younger abstention, concluding that principles of comity and federalism dictate that the federal court abstain so that the state court could consider the constitutionality of its disciplinary rules free from federal intervention.

It therefore rejected the claims that both the Ethics Committee and the Supreme Court were somehow biased tribunals to determine the constitutionality of their own regulations.

Plaintiffs moved to amend for the limited purpose of permitting the plaintiffs to… the opportunity to demonstrate either the bad faith or harassment which would operate as an exception to the Younger abstention doctrine.

There was extensive discovery and two days of hearings before the trial judge.

A supplemental opinion… in a supplemental opinion the district court concluded that the plaintiffs had totally failed to meet their burden of demonstrating either the bad faith or harassment which would operate as an exception to Younger abstention.

The plaintiffs appealed and moved for a stay before the trial court, which was granted.

So, in fact, the processing of the disciplinary matter before the Ethics Committee was stayed in April of 1980.

In its decision below, the Third Circuit concluded that the district court had abused its discretion when it dismissed on Younger absention grounds.

This decision represents a radical departure from the well-established tradition of federal noninterference in pending state attorney disciplinary proceedings.

The Third Circuit posits a very novel basis for justifying federal intrusion into the delicate and unique relationship between the Supreme Court and attorneys’ license to practice before it.

The court initially fragmented the Ethics Committee segment of a unitary disciplinary process or the remainder of that process.

Ms. Burgess, in that connection may I ask, is it still the practice to have the record made by the local committee but the actual decision to be made on that record only by the Supreme Court?

Mary Ann Burgess:

Mr. Justice Brennan, it would depend on the actual conclusion or finding at the Ethics Committee level.

It is true that it is only the Ethics Committee that develops a record in a particular–


Mary Ann Burgess:

–They are the arm that hears the matter for the court.

There are three areas in which they can make final determinations.

If they find that there is no indication of unethical conduct they can dismiss.

They can do that either before the investigation when they got the initial complaint or after the hearing they determine there is no unethical conduct.

So in two instances they can dismiss.

Those would be final determinations.

They could make a final–

Are they reviewable by the Supreme Court now?

Mary Ann Burgess:

–They could be on motion of the… if a complainant comes, makes a–

I’m away from this a long time, but–

Mary Ann Burgess:

–If a complainant raises a problem with an attorney and the Ethics Committee reviews it and finds no basis to file charges, that individual can go the next step and seek a review of that determination.


Mary Ann Burgess:

So the Disciplinary Review Board does review, has an appellate function with regard to certain actions of the Ethics Committee.

If the Ethics Committee reviews the record and considers the evidence that has been produced, it can determine that there is unethical conduct but it only warrants what is called minor discipline, a private reprimand.

That also is a final judgment by the committee and can be reviewed again by the Disciplinary Review Board.

If after a hearing on notice of evidence, consideration of the factors that have been developed, they determine that there is significant… potential significant violation of ethical conduct, they can recommend that what is called major discipline be taken.

They cannot impose that major discipline.

And that triggers the process which was discussed by respondents called presentment.

Actually, a presentment is–

And that goes to this–

Mary Ann Burgess:

–Is a finding of fact and a recommendation of major discipline.

–But that goes to the Supreme Court then.

Mary Ann Burgess:

That’s… well, it would go to the Disciplinary Review Board which would review it, make a determination which can only be imposed by the Supreme Court.

And then is there still oral argument before the Supreme Court?

Mary Ann Burgess:


Yes, Mr.–

In open court?

Mary Ann Burgess:

–Yes, Mr. Justice.

And every issue that… legal or otherwise that’s raised–

Mary Ann Burgess:

That’s right.

–May then be decided by the Supreme Court.

Mary Ann Burgess:

It would be legal argument.

The only record, though, the factual record, would be that record which had been held by the–

Had been made.

Mary Ann Burgess:

–Ethics Committee.

The Third Circuit in fact fragmented the Ethics Committee from the totality of the disciplinary process concluding that when a matter is pending before the Ethics Committee it is not pending before the Supreme Court.

Looking at it in this very isolated fashion, they felt… they concluded that an attorney charged with a violation could not raise constitutional issues and have them adjudicated by the Ethics Committee, which is correct.

It could not be adjudicated at that level.

It could be raised at that level and ultimately adjudicated.

Mary Ann Burgess:

They could be raised at that level, and through either a motion to the Supreme Court there could be a review prior to a final–

Incidentally, when the Supreme Court does this and decides finally a case, does it still publish opinions?

Mary Ann Burgess:

–Yes, Mr. Justice Brennan.

By name of attorney and so forth?

Mary Ann Burgess:


But would be it be fair… is it… would we be fair in understanding that only what might be called serious cases get that far?

Mary Ann Burgess:

To the Supreme Court?

Yes, Chief Justice.

They would be the ones involving major discipline: disbarment, temporary suspension, something of that nature.

A private reprimand, unless the attorney involved or the complainant involved felt it should go any higher, would probably not prosecute it any higher than that.

Well, now, in this case the Supreme Court certified to itself the whole proceeding, did it not?

Mary Ann Burgess:

Everything is pending in our Supreme Court.

And does that suggest that the Supreme Court’s considering this as a major disciplinary matter?

Mary Ann Burgess:


That would suggest that the constitutional issues involved warranted review by the court.


But it… everyone else is now out of this proceeding except the Supreme Court, is it not?

Mary Ann Burgess:

The matter is still pending in the district court level.

After the–

No, no.

I mean as far as New Jersey.

Mary Ann Burgess:


As New Jersey is concerned.

Only the Supreme Court has cognizance of this case now.

Mary Ann Burgess:

That’s right.

Does it not?

Mary Ann Burgess:

That’s right.

It was prosecuted on behalf of the Ethics Committee by the attorney who is in charge of ethics within the court system; so she was the prosecuting agent, Mr. Hinds was defendant and respondent to that charge.

But it’s pending now.

It has been… the constitutional issues have been fully briefed.

Mary Ann Burgess:

There has been oral argument, and we’re pending and waiting for the results.

There has been no decision in the Supreme Court as yet.

Mary Ann Burgess:

There has been no decision.

Well, Ms. Burgess, what exactly is the question before us?

Is it the question of whether the district court should have abstained as of the factual situation before the district court at the time it acted, or whether the district court should have abstained in the factual context of what we now know about the situation, because there has been a factual change.

Mary Ann Burgess:

There has been a factual change.

It was our position that the district court… which it did do, it did abstain from interfering in the process; that that was a proper act for the district court.

When it was appealed to the Third Circuit, they felt that was an abuse of discretion.

We petitioned for a rehearing.

It was at that point that the State Supreme Court indicated its willingness, being apprised of this particular matter, that it would hear the constitutional claims of Lennox Hinds.

We apprised the Third Circuit in our petition for rehearing of that fact.

The Third Circuit said that what was of importance was the factual situation at the time the complaint arose, not as of the time that they were reviewing it at that point, which was about a two-year lapse.

So they felt that when the complaint was filed Mr. Hinds could not have an adjudication of his constitutional rights before the Ethics Committee.

They refused to vacate or reconsider their decision because even though the matter was now fully before the Supreme Court… and I don’t think there’s any question that Mr. Hinds has ample opportunity to have his constitutional claims adjudicated by that body, which certainly constitutes a competent tribunal to adjudicate these constitutional… federal constitutional claims.

Do I correctly understand that the Third Circuit is not interfering with the ongoing consideration by the New Jersey court now?

Mary Ann Burgess:

In its decision, sir, petition for rehearing, they indicated they had no trouble or problem with concurrent proceedings, one in the District Court, one before the New Jersey Supreme Court, which it’s our view runs seriously counter to the notions of comity and federalism; that it is quite possible that in this duplicitous, duplicative process that the Supreme Court of New Jersey will come to one conclusion on the constitutionality in its adjudication of those issues, and let’s assume Mr. Hinds is not satisfied with that, rather than bringing that final determination of the 16 Supreme Court to this Court, he has the opportunity and the option… it’s clearly contemplated in the Third Circuit opinion… to go to the district court and to have his claims adjudicated by that court, which would really cast serious doubt on the objectivity and the ability of the Supreme Court of New Jersey to objectively and adequately resolve constitutional issues.

And I think that really–

I am puzzled about that.

How would affect what the Supreme Court of New Jersey might do?

I don’t quite understand that.

Mary Ann Burgess:

–It’s not what… it does not affect it at this point.

Ms. Burgess, excuse me.

Would you stay close to those microphones?

We’re having difficulty hearing you.

Mary Ann Burgess:

I’m sorry.

It is not, in effect, precluding the Supreme Court at this point from adjudicating those claims.

The possibility is that the federal district court will be reviewing that final determination or will be reviewing those issues and reaching a contrary result if Mr. Hinds is dissatisfied with the results in the New Jersey Supreme Court.

May I ask one other question?

If this suit had not… federal action had not been filed, as I understand you, only major matters get to the New Jersey Supreme Court, and I don’t know whether this is a major matter within the meaning of that test or not.

Is there a strong likelihood that had the federal suit not been filed, this case never would have reached the Supreme Court of New Jersey?

Mary Ann Burgess:

With regard to the imposition of discipline it’s correct that only the major matters would get to the Supreme Court where there would be possible disbarment.

But with regard to the issue of whether the disciplinary rule under which an individual is charged is constitutional or not, it’s quite possible that through a motion practice, a motion made to the Supreme Court to review that issue before there was any significance, either a hearing at the Ethics Committee level or something of that nature, it could well have reached the Supreme Court.

There has been a history in our court of a very flexible procedure with regard to attorney disciplinary matters.

So that while a matter is pending before an Ethics Committee there can be motions made to the Supreme Court to resolve procedural issues or perhaps constitutional challenges.

And, in fact, this flexible procedure has been memorialized in a new court rule which provides that when a matter is initiated, when there is a disciplinary matter initiated, the individual can move the Supreme Court for direct resolution of constitutional issues which may be implicated.

It’s interlocutory.

There’s a motion for leave to resolve those issues.

If the court does not take it… and that would, of course, depend on the seriousness of the constitutional challenge, the individual is required to preserve his constitutional challenge in the answer to the disciplinary charges.

And if the matter does proceed to formal discipline, it would be resolved within that context.

So it would always be… the ability to raise the constitutional challenge would always be there to be decided by the court.

Well, the one thing that puzzled me, as to one of the rules… I can’t remember… one of the rules I thought only applied to counsel of record in a case.

And conceivably at the preliminary stage it might have just found no merit to the charge at all.

Mary Ann Burgess:

That’s right.

It’s quite possible that in reviewing the application of the rule that Mr. Hinds may not have fallen within the ambit of it.

That’s a possibility.

I couldn’t say.

It doesn’t talk about counsel.

It says associated with the defense or prosecution of a particular matter.

So the question is what does associated with the defense or prosecution mean; does it mean of counsel or does it mean something broader than that and something less than that?

What position does your client take on that issue?

Does associated with the defense include people who are not participants in the litigation?

Mary Ann Burgess:

It could well include–

I mean isn’t that a yes or no?

Mary Ann Burgess:

–There hasn’t been any definitive rules on that.

That is the issue–

But I mean don’t you have a position on the issue that you’re maintaining in that proceeding?

Mary Ann Burgess:

–In our Supreme Court proceeding?


Mary Ann Burgess:

In the Supreme Court they did argue that it was broader than of counsel.

I see.

Mary Ann Burgess:

That it could extend to individuals who had certain contacts–

And it does specifically extend to this particular person.

Mary Ann Burgess:

–That’s the position.

As I said, it hasn’t been resolved by the court as yet.

Ms. Burgess, I misunderstood you.

Didn’t you start off by saying the merits weren’t before us?

Mary Ann Burgess:

That’s true, Mr. Justice.

Well, isn’t that the merits, and you’re now answering them.

Well, I asked the question.

Mary Ann Burgess:

It’s my fault.

It’s my fault.

Let me just–

–Well, what would happen if the Supreme Court this afternoon decides that this case is without merit and dismisses it?

Mary Ann Burgess:


Could they do that?

Mary Ann Burgess:

–What’s before them is the constitutionality–

Could they do that?

Mary Ann Burgess:

–They could dismiss the charge against Mr. Hinds, yes.

They could find that he is not–

What would that do to this case?

Mary Ann Burgess:

–It would still leave the application or the failure to apply Younger abstention in this particular case, where rather than dismissing the complaint in the district court and permitting the state court to go forward unfettered in adjudicating the complaint–

I don’t understand it at all.

Well, why isn’t the case over if that happens?

I don’t see… the case is over, isn’t it?

Mary Ann Burgess:

–Well, that’s assuming–

This case and all cases.

Mary Ann Burgess:

–That’s assuming that the court in effect finds its rules unconstitutional and–

Well, whatever… my brother Marshall’s question was if the New Jersey Supreme Court, having addressed the merits, dismisses the charge against Mr. Hinds, isn’t that the end of this whole business?

Mary Ann Burgess:

–There would still be the pendency of the complaint in the federal district court.

Rather than having dismissed that, it permitted the New Jersey Supreme Court to proceed on adjudication of these complaints.

Mary Ann Burgess:

There is still that determination.

Well, wouldn’t that case be mooted?

Mary Ann Burgess:

And I think… excuse me.

Wouldn’t that case be mooted if they dismissed all the proceedings that underlie this?

Mary Ann Burgess:

Well, if this Court would return or vacate the judgment below and dismiss the complaint.

Well, we might vacate the opinion, but that has nothing to do with the continuance of the case.

Mary Ann Burgess:

The case involving Lennox Hinds would be over.

Let me take you back to the nature of this proceeding.

In this Court, as you know, both in original cases and in others we have inherent and constitutional authority to appoint a special master to undertake some inquiry.

Now, is the proceeding in New Jersey roughly comparable to that, that the court has delegated to this body the function of an inquiring master or a special master to develop the facts?

Mary Ann Burgess:

It could be analogized to precisely that type of situation.

So it is a judicial proceeding.

Mary Ann Burgess:

It certainly is a judicial proceeding.

The court itself has characterized it as a judicial proceeding, and it utilizes the Ethics Committees to hear matters for it.

That is precisely their function.

It used to be, Ms. Burgess, that in some cases rather than have local committees do the fact-finding job the Superior Court judges used to do it… I used to do it… at the direction of the Supreme Court.

Is that still so?

Mary Ann Burgess:

Not to my knowledge, Justice Brennan.

I believe it is totally within the ambit now of the Ethics Committees.

And in New Jersey this is particularly significant since the Supreme Court has plenary and exclusive Jurisdiction over both admission to the bar and disciplining attorneys by way of express constitutional provision.

So, that is, really the people who through their constitution have permitted total control over admission to the bar and discipline of members to the bar to the Supreme Court.

So that when the Third Circuit failed to permit the Supreme Court to fulfill that function unfettered by federal intervention, it was in fact not only thwarting… it was in fact thwarting the will of the people to have that precise function fulfilled by the body that had been designated to do it.

I will reserve the rest of my time for rebuttal.

Thank you.

Warren E. Burger:

Mr. Stavis, at the outset do you agree that this is a judicial proceeding in the State of New Jersey?

Morton Stavis:

No, sir, Your Honor.

It is not a judicial proceeding.

How do you describe it then?

Morton Stavis:

Any more than Consumers Union against the Supreme Court of Virginia.

Well, hasn’t the Supreme Court of New Jersey authorized this body to do what it was doing?

Morton Stavis:


It adopted–

It delegated–

Morton Stavis:

–Rules which authorize this body to do what it was doing, but–

–Delegated to them a fact-finding function.

Morton Stavis:

–It delegated to them… not quite that, Your Honor.

At the stage where this litigation was commenced we were not at the fact-finding, period.

At the stage where the federal litigation was commenced they were at the pre-prosecutive portion of their responsibilities.

In other words, what was to happen as of the time that this federal court proceeding was commenced was that a hearing was to be held not for the purpose of finding facts for the Supreme Court of New Jersey but for the purpose of determining whether Mr. Hinds was to be prosecuted.

And we laid that out quite clearly–

Prosecuted by whom?

Morton Stavis:

–As did the Court of Appeals.

Prosecuted by whom?

Morton Stavis:

Prosecuted by the district Ethics Committee, and he would be prosecuted by the district Ethics Committee before the Disciplinary Review Board.

In other words, there was a mechanism in our structure whereby at this particular stage the body holds hearings.

At the conclusion of those hearings they don’t adjudicate nor do they even present it to the Supreme Court.

They merely decide whether to present the matter to the Disciplinary Review Board.

And so that’s precisely why the Court of Appeals for the Third Circuit said that at this particular Juncture the district Ethics Committee was functioning purely in the prosecutive level.

May I point out, Mr. Chief Justice, that when you asked the question with respect to a master, when a master is appointed, the court appointing the master has made a judicial determination that the issue that is presented requires fact-finding; and there has been some preliminary judicial determination as to the legal questions, as to the constitutional questions.

Here, nothing happened other than David Foley said I’d like to investigate, and the committee said you can investigate.

Nothing further happened other than that, and we’re in the process at this particular point where we go into court where the consequence of them going ahead is there may or may not be a prosecution.

Now, that’s not the point at which abstention applies.

That’s not the point at which Younger abstention applies.

In fact, so far as I know, there’s case after case after case in this Court which says that prosecutors… I’m thinking of Consumers Union… prosecutors are natural objects of injunctive and declaratory relief, and the Younger abstention doesn’t apply.

I’m thinking of Steffel against Thompson, an opinion by Mr. Justice Brennan.

I’m thinking of the Doran case, an opinion by Mr. Justice Rehnquist.

Down the line, before there has been a prosecutive determination, before the matter has been put in the hands of a body which has the power to make a judicial determination and which has the power, more particularly, which has the power to adjudicate the federal constitutional claims.

And that’s the essence of the Gibson against Berryhill standard.

Mr. Stavis, you agree, I think, that the thing is factually somewhat different now than it was when it was first brought to the attention of the district court.

Do you think that the factual differences are irrelevant for legal purposes?

Morton Stavis:

Well, I think that those factual… and I appreciate the sharpness with which you made the point during the argument of my adversary that there really are two distinct issues here.

One was the issue as presented to the district court and adjudicated by the Court of Appeals.

And what the Court of Appeals decided, consistent with its prior decision and consistent with the decision of this Court in Lockport, that issues of abstention are determined as of the time that the federal court action is commenced.

Federal court jurisdiction once having properly attached, the subsequent bringing of a state court action, which may conceivably provide the possibility of satisfying the Gibson against Berryhill standard… and that was Lockport… that doesn’t alter the situation.

That was the situation at the district court level.

That was the situation at the level of the Court of Appeals before the Third Circuit.

That was the question on which a petition for writ of certiorari was filed in this Court.

Those were the questions presented in the petition for writ of certiorari.

Well, this is an equitable action, isn’t it?

Morton Stavis:

I’m sorry.

Isn’t this an equitable action?

Morton Stavis:

Oh, of course.

And isn’t equity as of the time of judgment, in contrast to law as the time the case is filed?

Morton Stavis:

Well, I believe that–

Isn’t that the long way back to understanding?

I know laws change a lot, but wasn’t that the way it always used to be, that equity speaks as of the time of judgment?

Morton Stavis:

–Well, in the abstention area, in the abstention area, and in the equity area I’d like to say this, too… in the abstention area you’ve settled it.

In the abstention area you’ve settled that the subsequent change as to the availability of a state court forum doesn’t alter the jurisdiction of the court.

I might say, if the Court will allow, in the equity area, too, the fact that after equity court jurisdiction has attached and the remedy at law appears to be adequate… there’s an opinion by Mr. Justice Cardoza that deals exactly with that question… the Jurisdiction of the court isn’t vacated.

Now, there is… there isn’t any doubt that there is a question with respect to subsequently developed facts; but my suggestion with respect to that is that doesn’t go to the jurisdiction of the federal court.

That may go to a wholly different kind of question.

You’ve got a case… and this sort of thing occurs quite often… you have a Pullman abstention.

The case is begun in the United States District Court.

The United States District Court decides to send it out into the state court for adjudication of state issues, and then it comes back to the district court.

England against Louisiana Medical Examiners.

While it’s in the state court the state court determines not only state issues but federal constitutional issues.

It comes back to the district court.

What’s the consequence of those facts on its subsequent handling in the district court?

Now, when this matter was submitted to the Supreme Court of New Jersey, we put into our brief the express kind of reservation which this Court referred to in England against Louisiana Board of Medical Examiners.

We said we’re here before the state court because we’ve been ordered to be here, but we had made an original choice of forum in the federal court and want to make sure that we preserve that.

Morton Stavis:

When this court gets back to the district court… when this case comes back to the district court, the consideration… the court may very well give consideration to whether those facts which subsequently develop may alter the status of the case.

Well, not if the Court of Appeals is reversed.

There won’t be anything for the district court to do.

Morton Stavis:

If the Court of Appeals is reversed, there will be nothing for the district court to do.

But if the court is affirmed, if the Court of Appeals is affirmed on the grounds that… on the only grounds that they passed upon.

The only grounds that they passed upon was whether or not the district court had jurisdiction as of the time the action was commenced.

And on a–

Well, can’t the factual developments… putting aside the Younger abstention and the Pullman abstention to which you refer… be used to at least give us some insight into the nature of the New Jersey proceeding that we might not have had if it had just been pending before the Ethics Committee?

Morton Stavis:

–Yes, you can certainly have insight into the New Jersey proceeding, but let me suggest, Justice Rehnquist, as to why it is that you can’t really adjudicate based upon that for the following several reasons.

First of all, as of this time you haven’t the faintest idea what the New Jersey Supreme Court may do.

You don’t know whether the New Jersey Supreme Court is going to adjudicate this simply upon some of the grounds–

Well, Mr. Stavis, suppose it did before we get around to deciding this case?

Morton Stavis:

–Well, you’d have to look at what they did.

Well, what happens?

Suppose they evaluate all of your constitutional questions and they agree or disagree, as the case may be, and they enter a judgment.

Morton Stavis:

Yes, sir.

If the judgment’s adverse to your client, I take it you have review here, do you not?

Morton Stavis:

We have discretionary review here.

That may be, but you do have… that’s where you go, isn’t it?

Morton Stavis:


Under the Court of Appeals decision we’d be back in the district court.

No matter what the Supreme Court of New Jersey had done and whether or not we granted cert?

Morton Stavis:

I’m sorry.

Whether or not we granted cert?

Morton Stavis:

Well, I doubt that I would be doing two things at the same time.

I doubt that I would be presenting a petition for writ of certiorari to this court and at the same time litigating in the United States district court.

I think that would be a foolhardy undertaking on our part.

But certainly if this Court should reach out and grant cert, obviously the constitutional issues would be decided here.

But otherwise, as soon as–

And then you’d have everything that your client seeks.

Morton Stavis:

–If you… if you granted cert, of course, but that’s quite an “if”.

You might very well decide that you–

Well, how about the other “if”?

If the Supreme Court of New Jersey says we dismiss this complaint for every one of the reasons that you asked for, then what action would you have?

Morton Stavis:

–I think I’d relax at that point.

I thought so.

Morton Stavis:

And that might be the end of the case.

And we could, too, couldn’t we?

Might be, Mr.–

Morton Stavis:

Everybody could relax at that–

–Might be, you say, Mr. Stavis?

Morton Stavis:

–I’m sorry.

You say that might be the end of the case?

Morton Stavis:

I think it would be the end of the case.


Morton Stavis:

If we won hands down on all the issues.

But let me point out–

Well, the Court of Appeals would have said forget everything that’s happened since the complaint was filed.

Decide the case on the facts that exist at the time the complaint was filed.

That’s what the court said.

Morton Stavis:

–Well, excuse me, Your Honor.

The facts that are being asserted here, these new facts, are following the Court of Appeals decision.

Exactly, exactly.

Morton Stavis:

So that the Court of Appeals in fact never had–

Yes, but people presented… attempted to present facts to the Court of Appeals that had occurred since the district court decided, and the Court of Appeals said no, we will not take cognizance of those facts.

We shall decide the case based on the facts that existed at the time the complaint was filed.

Morton Stavis:

–Forgive me, but I beg to differ.

There was not a presentation of new facts before the Court of Appeals.

Quite the contrary.

All that happened–

Well, whether there was… even if there had… suppose there had been, though, that the Court of Appeals said… you do agree they said even if there had been new facts, we won’t take cognizance of them.

They at least said they.

Morton Stavis:


Following, following your own decision in Lockport.

And that’s a position that you stated in Lockport.

But let me state what actually happened before the Court of Appeals.

There were no new facts.

There was an offer.

So that if they were wrong on their rule, it doesn’t make any difference.

If they were wrong on saying they shouldn’t take cognizance of new facts, it doesn’t make any difference because there weren’t any new facts.

Morton Stavis:

There weren’t any new facts, Your Honor.

There was an offer by the Supreme Court of New Jersey in saying we would like, if we’re permitted to, we would like to consider this case.

The Court of Appeals responded positively to that and said fine, you want to consider the constitutional issues now, do so.

I think they were responding to the kind of comment that recently I read in the Chief Justice’s dissenting opinion in Wisconsin against Constantino.

Now, the Court of Appeals responded to that and said if you want to consider these issues, do so, but, but since that would change the circumstances from the state of facts when these folks went to the United States District Court and established their jurisdictional foundation, we’re not prepared to say that if you do so that will defeat jurisdiction which once properly attached.

Now… and that’s the most consistent application of settlor that I know of.

Now, that’s not to say, that’s not to say that when the case comes back we don’t have a consideration of new facts, and that’s England against Louisiana Medical Board.

And whether or not whatever the Supreme Court did should subsequently determine what happens, there will be certainly time to consider this.

But this Court can’t consider that question, and I should like to point out one other consideration which hasn’t been mentioned as yet which I think is quite important.

The plaintiffs in this case in the district court were not only Lennox Hinds but the three organizations of black lawyers.

These three organizations of black lawyers said we very seriously are concerned with these disciplinary rules on their face and as being applied because we’re in the business of educating people in New Jersey and elsewhere as to what we consider to be racist practices in the courts, and we want the freedom to address ourselves in that respect.

Now, whatever the Supreme Court of New Jersey may do with respect to Lennox Hinds, that doesn’t affect the standing of these bar associations to object to these rules on their face and as applied.

Now, if, to pick up Mr. Justice Marshall’s comment, that the Supreme Court of New Jersey should decide down the line these rules are completely Invalid and unconstitutional, we’re going to appoint a committee to write some new rules and consider them by the bar, well, I guess there would be nothing left on their part either and the case would be over with.

Could I ask you something, please?

Suppose while the case was pending in the district court… suppose when the case was filed in the district court the New Jersey Supreme Court had already taken to its bosom the constitutional issues that had been… that were being presented, and so there was a case pending in the Supreme Court with the very constitutional issues in it that were being presented to the district court.

I suppose you would say this would still not be a Younger abstention case.

It is just a civil case that… to which Younger doesn’t apply, or would you argue that?

Morton Stavis:

I’m not at all so sure I would take the position that you suggest, if before we had filed our action in the district court there was a case pending in the Supreme Court of New Jersey in which we were a party and which we had a right to litigate.

Well, there certainly is pending there now a case with–

Morton Stavis:

There is pending as to Lennox Hinds.

Morton Stavis:

There is not pending as to the three organizations of black lawyers.

And there isn’t any doubt, there isn’t any doubt that the factual situation has changed in that respect following the decision of the Court of Appeals in the Third Circuit.

–So what… how should we view the case then?

Morton Stavis:

I think you should view this case now–

As though the district court… as the district court should have viewed it if the case had been pending when the case was filed or not?

Morton Stavis:

–Well, of course, one of the things that I suggested some time ago before, beforehand was that the petition should be dismissed as improvidently granted–


Morton Stavis:

–For precisely some of these reasons.

But not doing that, I think that you should view it in the following terms: that you are asked to reverse a decision of the Court of Appeals establishing that the district court had jurisdiction as of the time the action was commenced.

Well, what if we’re just being asked to vacate it?

Morton Stavis:

You’re being asked to–

We don’t reverse it.

We Just say you might have been right, but there are sole things that have happened since then that make your decision improvident.

Morton Stavis:

–And I’d like to suggest that if you consider that question that you ought to come to the conclusion that whatever happened subsequently does not make improvident the judgment of the circuit Court of Appeals when it was rendered.

Well, we wouldn’t say it was erroneous.

We’d just say it’s no longer appropriate to review it.

Morton Stavis:

But you asked me what I would propose.


All right.

Morton Stavis:

And what I would propose is something quite different, namely that the Court of Appeals decision be affirmed because it was correct, and it sustains and supports and applies this Court’s decision in Lockport.

Now, there’s nothing to say–

Well, what if we thought it was wrong?

Morton Stavis:

–What’s that?

What if we thought it was wrong?

Do you think we ought to go ahead and say so, or wouldn’t you rather we Just vacated it?

Morton Stavis:

Well, no.

I can’t believe that you would think that the decision was wrong In the light of Lockport.

I mean all I can do is apply the law, ask you to apply the law as we know it to exist.

I do not think that there need be any question but that in connection with further proceedings on this case, if there are to be any, before the district court that the district court, and in due course the Court of Appeals, would consider the impact, if any, of the subsequent determinations.

Let me point out something to you.

Morton Stavis:

Some years ago you decided the case called American Trial Lawyers Association against the New Jersey Supreme Court.

And of course all New Jersey lawyers are very familiar with that case because it had something to do with something very dear to their hearts, namely the fees that they were authorized to charge.

And you insisted in that case in reversing, reversing a district court decision which dismissed jurisdiction; it dismissed jurisdiction in a Pullman abstention case.

You remanded it and directed the district court to retain jurisdiction.

And obviously when the district court retained jurisdiction, when it got back there, the question of what the Supreme Court of New Jersey did in that case would be considered.

Ultimately, ultimately there were no further proceedings in the district court because at the conclusion of the decision by the Supreme Court of New Jersey that was the end of it.

And Justice Marshall has suggested that that could possibly be the case here, and it might very well.

But I do not believe that at this juncture this Court can determine the facts as they’re developed subsequently.

And certainly, Justice White, the Court of Appeals said that on remand the district court would have to consider the separate interests of the organizations, which–

Well, the district court certainly under cases like Will v. Calvert Fire Insurance Company where you’ve got one of several party plaintiffs litigating in a state court certainly has jurisdiction under broad comity principles.

Say if one party is barred, the others can certainly wait until we find out what the state court is going to decide.

Morton Stavis:

–Well, I would certainly assume that everybody is going to wait until the state court decides.

There is no question about it.

And whether or not under Will and any other cases other parties will be bound by what the Supreme Court of New Jersey may have decided with respect to Lennox Hinds remains to be seen.

Let me point out to you a very real possibility.

A very real possibility is for the Supreme Court of New Jersey to say several things.

It could say that obviously Lennox Hinds wasn’t counsel in the case; this issue, this matter shouldn’t have been prosecuted because he wasn’t counsel, and that’s the end of it.

The Court of Appeals… the Supreme Court of New Jersey could decide that Rule 8102, which is a rule that specifically deals with criticism of judges, should have been the rule applicable instead of DR 7-107.

Well, supposing it decides that.

Then the organizations come along and say but the court hasn’t adjudicated the question of the facial unconstitutionality of the statute.

And that’s an issue which remains and an issue which we as three black organizations are very seriously concerned about.

Well, you’d have to show separate standing in that case, though.

Morton Stavis:

Well, yes.

And the Court of Appeals expressly pointed out that there wasn’t a record upon which it could decide that particular question.

I’m referring particularly to the Doran case.

There wasn’t a kind of record at which you could determine whether or not there was a separate entrance.

And that’s an issue that will have to be returned to the Court of Appeals, to the district court.

But you can’t decide that now.

You have no more record on that than the Court of Appeals for the Third Circuit; so that even if you were to decide, as you press, Justice White, that maybe we could make a decision on this with respect to the Hinds case, you can’t make a decision with respect to the interests of the other organizations; and they have an interest and a constitutional interest in this matter which far transcends the immediate question of Mr. Hinds.

On that basis the abstention doctrine could be completely nullified by having independent organizations come into litigation in the federal courts.

Morton Stavis:

I do not think it could be suggested for one moment that Justice Rehnquist nullified the abstention doctrine or this court nullified it in the opinion of Mr. Justice Rehnquist in the Doran case.

I really don’t think so, nor in the Steffel case, nor in a whole series of cases where you recognized that there was a sharp distinction between threatened prosecution and actual prosecution.

Mr. Stavis, regarding that, does everybody agree here that the posture of the case is what the Third Circuit said it was, that the Ethics Committee accepted the recommendation and voted to prepare a formal statement of charges against Hinds which was served on January 3, 1978?

Morton Stavis:

There was a statement of charges.

Which really corresponds to an indictment, I suppose.

Morton Stavis:

Precisely not.

How is it different?

Morton Stavis:

Well, if you look at the–

I mean other than this is an administrative proceeding.

Morton Stavis:

–No, no.

No, no.

I’m leaving aside the question as to whether it’s an administrative proceeding.

Because under the rules of discipline in New Jersey, after the statement of charges there is a hearing at which the District Ethics Committee determines whether to make a charge.

I’m sorry.

I think it’s extremely important that that distinction be absolutely.

That is not the presentment.

It is not the charges.

It is an internal consideration of the matter within the district Ethics Committee.

Well, why is it served on the respondent then?

Morton Stavis:


It’s a letter of the prosecutor to an individual saying I’m thinking of making a charge against you under such and such a statute, and I’d like you to come in and talk to me about it, and at the conclusion of talking to me about it I will decide whether to file an indictment.

It is not an indictment.

It is not a presentment.

It is in that precise prosecutive stage that I suggested, and that’s what the rules say and that’s what the Court of Appeals of the District of Columbia found.

Now, I just want to conclude by making what I think is the most fundamental point here, and that is that when the Congress adopted the Civil Rights Act and adopted 1331 and 1343, it provided, intended to provide that the litigants would have the choice of forum in adjudicating federal constitutional issues.

You decided Monroe against Pape.

You’ve never departed from Monroe against Pape.

And that is that litigants who feel threatened in the exercise of their federal constitutional rights have the option of going to the federal or the state courts to have those matters adjudicated.

I do not believe that there is a prayer of a suggestion that Younger against Harris applied to this case at the time that the case started in the federal district court.

Now, federal jurisdiction is not a shell game.

Morton Stavis:

Federal jurisdiction is not something that here you see it and here you don’t.

Federal jurisdiction–

Well, neither is state… neither is state jurisdiction over its lawyers.

Morton Stavis:

–Nor is state jurisdiction over its lawyers.

And the Court of Appeals for the Third Circuit was singularly sensitive to that point and said to the Supreme Court of New Jersey do your thing.

It may very well be that you’ll limit this whole matter, and this whole case may disappear.

But not for that reason, not for that reason does it seem to me that the original choice of forum made by the litigant in accordance with Monroe against Pape is to be dismissed.

And the Third Circuit said that we have to be, we have to determine this on the basis of that choice of forum made on the facts that that’s what you’ve–

Warren E. Burger:

Your time is expired now.

Morton Stavis:

–Thank you very much.

Warren E. Burger:

Do you have anything further, Ms. Burgess?

Mary Ann Burgess:

Yes, Mr. Chief Justice.

I would like to respond initially to the–

Will you keep your voice up?

We’re having difficulty–

Mary Ann Burgess:

–To the characterization–

–You can stay right in the center.

Just keep your voice up.

Mary Ann Burgess:

–To the characterization of the issuance of the statement of charges.

In the Hinds case an initial complaint had been received.

An investigation had been authorized.

A report was made to the entire committee, and they then in fact authorized the official issuance of a statement of charges which was served upon Mr. Hinds in that matter.

That generated what we view as the adjudicative part of the process.

A hearing would result, and a determination based on the facts elicited at that hearing would lead to a recommendation either to dismiss, to impose minor discipline, or to forward the matter on for major discipline.

So it is our contention that we are not in a pre-prosecutorial stage but rather the judicial portion of it had been commenced by the official filing of charges.

Ms. Burgess, what’s your answer to the argument that whatever may be true of the Hinds case, that doesn’t affect the standing of the three organizations?

Mary Ann Burgess:

That precise issue is not briefed in the Third Circuit.

Well, are the claims of these three organizations, constitutional or otherwise, before the New Jersey Supreme Court?

Mary Ann Burgess:

It is my understanding that there was… that Mr. Hinds certainly has participated in the Supreme Court.

There was an application by another group, which is in none of the groups involved, in the district court, a federal matter, to participate as amicus.

Mary Ann Burgess:

So these three groups are not involved in the state court proceeding.

However, it is our position that their rights are merely derivative or so intertwined with Mr. Hinds’ rights that they cannot interfere with that ongoing state proceeding.

Well, even if they aren’t parties, are the issues… the issues are the same.

Mary Ann Burgess:

They are precisely the same.

Precisely the same issues.

Mary Ann Burgess:


And even if it’s in the prosecutorial stage, if a constitutional issue is raised at this stage, whatever it is, that happens at the same time to be pending in the New Jersey Supreme Court, that does pose a Younger question.

Mary Ann Burgess:


Regardless of the stage of the proceeding.

Mary Ann Burgess:


And they could be remitted to resolve that issue within the pending state proceeding, certainly, because the state Supreme Court does permit the participation of amicus groups.

Because there’s nothing tentative… there’s nothing tentative about what’s going on in the New Jersey Supreme Court.

Mary Ann Burgess:

No, Your Honor.

It’s very real, and there should be some sort of resolution to our claim.

I would just like to emphasize–

But on page 10 of your brief you say specifically that it was

“to bring the constitutional claim of Lennox Hinds, Esq. “

“directly before the Supreme Court. “

“It doesn’t say anything about– “

Mary Ann Burgess:

–Your Honor, it was the charge involving Lennox Hinds which was before the district Ethics Committee.


–Well, I gathered from this–

Mary Ann Burgess:

–That was the only… was the only individual involved in the New Jersey proceeding.

–So the two–

Mary Ann Burgess:

There are non… that’s right… there are non-state/federal litigants in this matter.

–The other organization… the organizations are not included.

Mary Ann Burgess:

That’s right, Your Honor.

But they could move to participate in the matter.

They could be remitted to participate in the–

John Paul Stevens:

Well, I could, too, make a motion to participate.

John Paul Stevens:

May I ask another question about your procedure?

Would it be consistent with New Jersey’s procedures just as a possible disposition of the case pending in the New Jersey Supreme Court for that court to say, number one, there’s no merit to the charges against Mr. Hinds for whatever reason might be; number two, even though there’s no controversy remaining, we will now give an advisory opinion that we think our rule is a perfectly valid constitutional rule?

Mary Ann Burgess:


That would be possible.

Mary Ann Burgess:


And then nobody could review that determination up here.

Mary Ann Burgess:

That’s right.

The Supreme Court has original jurisdiction to review the constitutionality of either its disciplinary rules or its court rules absent an actual disciplinary proceeding, and our brief indicates instances where in fact it has done that.

It will entertain a petition for review.

And if they segregated the Lennox Hinds’ matter as applied from that, they could still move on to adjudicate the constitutionality of those particular rules.

Thank you.

Warren E. Burger:

Thank you, counsel.

The case is submitted.