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BRUNWASSER v. STRASSBURGER

May 29, 1980

ALLEN N. BRUNWASSER, Plaintiff,
v.
JUDGE EUGENE B. STRASSBURGER, III; ALEXANDER UNKOVIC, ESQUIRE; GRACE S. HARRIS, ESQUIRE; JOSEPH L. COSETTI, ESQUIRE; CHARLES C. KELLER, ESQUIRE; HERBERT MARGOLIS, ESQUIRE; CHESTER BYERLY, ESQUIRE; THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA, ALLEN B. ZERFOSS, ESQUIRE, Chief Disciplinary Counsel; and EDWARD A. BURKHARDT, ESQUIRE, Assistant Disciplinary Counsel, Defendants.



The opinion of the court was delivered by: COHILL

I. Factual Background

From 1974 to 1979 Allen N. Brunwasser, the plaintiff in this case, was the subject of a disciplinary investigation by the Disciplinary Board of the Supreme Court of Pennsylvania. During the course of this investigation, a committee was empanelled to hear the charges of unethical conduct pending against plaintiff. That committee later issued an opinion describing Mr. Brunwasser's "warrior"-like approach to legal practice and concluding that he "has played fast and loose with the legal system, bending it to his own purpose." *fn1" Public censure by the Supreme Court and probation were recommended to attempt to "cure (plaintiff's) apparent contempt for the law." Plaintiff responded to the opinion and recommendation by filing, inter alia, a "Motion to Dismiss Proceeding Because of Violation of the Doctrine of Fair Notice and Due Process of Law," in which he claimed his rights under the fifth, sixth, and fourteenth amendment were infringed, and a "Motion to Dismiss Proceedings Because of Lack of Separation of Judicial and Prosecution Functions." He reasserted his objections to the proceedings against him in a brief filed with the Disciplinary Board and at oral argument before the Board. Although the Board accepted the factual findings, it ultimately disagreed with the recommendation of the hearing committee and ordered a private reprimand of plaintiff.

 In its "Report and Recommendation," the Disciplinary Board reviewed the disposition of various of plaintiff's motions, including the denial of claims of unconstitutional bias, infringement of free speech, vagueness of disciplinary rules, invidious discrimination, prejudice and inexperience of the prosecutor, and lack of due process and fair notice. "Respondent attacked everything conceivable that might be attacked." (Defendants' Exh. A p. 15.) The Board concluded that the hearing committee had followed procedures that satisfied due process and that violations of nine Disciplinary Rules were amply established during the seven days of hearings. (Defendants' Exh. A. pp. 7 and 16.) The Board particularly deplored plaintiff's resort to "illegal action" in filing a "patently false" suit claiming to represent someone other than himself when he actually was representing himself in order to protect his personal property. (Id. p. 15.)

 Early in 1979, the case was certified to the Supreme Court of Pennsylvania. That Court affirmed the rulings of the Disciplinary Board and denied plaintiff's motion for oral argument. A petition for a writ of certiorari filed in the Supreme Court of the United States was denied.

 Having exhausted all avenues of relief in the state court, but while the petition for writ of certiorari was still pending, plaintiff filed this federal action. It purports to be an action under 42 U.S.C. §§ 1983, 1985, and 1986; 18 U.S.C. §§ 241, 242, and 371; 28 U.S.C. §§ 2201 *fn2" , 2254 and 1343(3); and under the first, fifth, eighth, ninth and fourteenth amendments to the United States Constitution. Plaintiff has also moved to amend to assert jurisdiction under 28 U.S.C. § 1331. Among those named as defendants are three individuals who complained to the Disciplinary Board about plaintiff's conduct or who were called as witnesses at the hearing, the Disciplinary Board itself, its chairman, its chief and assistant counsel, a review officer, and the members of the hearing committee that was empanelled to hear the charges against the plaintiff. The complaint incorporates by reference all the objections that were made before the Disciplinary Board of the Supreme Court (P J., p. 44). Relief requested by the complaint is "limited" to declaratory and injunctive relief. Among the orders sought are an injunction against defendants "so that what has happened will not happen again," an order requiring defendants "to undo the damage they have occurred and not to participate in similar conduct in the future," a declaration that the Disciplinary Board's chief counsel should no longer be permitted to prosecute cases, and a complete investigation into the state proceedings against plaintiff. At oral argument, plaintiff also requested that the defendants be enjoined from publishing or distributing copies of the confidential opinion and recommendation of the hearing committee. *fn3" The pith of the action is probably best articulated on the required summary form attached to the complaint (form JS-44a) wherein plaintiff explained that "(h)e respectfully asks that a private reprimand given by the State Disciplinary Board be revoked."

 All defendants, citing numerous grounds, have moved to dismiss the complaint under Fed.R.Civ.P. 12(b).

 II. Jurisdiction

 The defendants have asserted that this Court is without subject matter jurisdiction to hear this case.

 Although the myriad claims raised by the plaintiff in his complaint were viewed as "many novel theories relating to the practice of law" when they were raised before the hearing committee and again before the Disciplinary Board (Defendant's Exh. A p. 15), he is not alone in turning to federal court for relief from an adverse state disciplinary action. Many frustrated attorneys, as well as many disappointed bar applicants, have taken their causes to the federal district courts. In most of these cases the federal courts have been reluctant to interfere with the operations, or alter the results, of state bar proceedings. A body of case law is emerging from decisions of several of the circuit courts of appeal which, at least in part, supports the defendants' position that this Court lacks jurisdiction.

 A 1969 decision of the Court of Appeals for the Ninth Circuit, responding to a lawyer's action seeking to enjoin his suspension from practice by the Alaska Supreme Court, took a straightforward approach to the jurisdictional issue. In MacKay v. Nesbett, 412 F.2d 846 (9th Cir. 1969), cert. denied 396 U.S. 960, 90 S. Ct. 435, 24 L. Ed. 2d 425 (1970), the per curiam opinion stated:

 
(Orders) of a state court relating to the admission, discipline, and disbarment of members of its bar may be reviewed only by the Supreme Court of the United States on certiorari to the state court, and not by means of an original action in a lower federal court. The rule serves substantial policy interests arising from the historical relationship between state judicial systems and the members of their respective bars, and between the state and federal judicial systems. We are persuaded that it is sound.

 412 F.2d at 846.

 Two years after MacKay, the Eighth Circuit confronted a similar jurisdictional question in a § 1983 suit by an unsuccessful bar applicant. The plaintiff in Feldman v. State Board of Bar Examiners, 438 F.2d 699 (8th Cir. 1971), challenged the Arkansas testing procedures, claiming he was discriminated against on the basis of his religion and mental disability, and asked the federal court to review his test to determine if he had, in fact, passed. The district court dismissed Feldman's complaint as premature since he had not sought review in the state supreme court prior to instituting his federal action. In affirming, however, a panel of the Eighth Circuit held that the district court was permanently rather than temporarily unable to hear the suit: the plaintiff's only remedy was in pursuing his claim to the state's highest court and thereafter to the United States Supreme Court on a petition for certiorari. The circuit court explained, "(a)s the trial court properly stated, it is not an appellate court and cannot in such a case as this review state court actions." 438 F.2d at 704. However, the Feldman decision was complicated by the fact that the circuit court, while discussing jurisdiction, did also reach the merits of plaintiff's claims. It distinguished the plaintiffs' case from other cases stating legitimate constitutional claims:

 
Undoubtedly, could plaintiff show an invidious and purposeful effort to discriminate against him or perhaps an actual discrimination even without such an intent, on any of the grounds he specifies or on any other grounds such as fraud, he well might assert a violation of his constitutional rights. There is little question but that an applicant for admission to the bar as an attorney is entitled to ...

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