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December 15, 1983

OLIVER E. MATTAS, JR., Plaintiff,

The opinion of the court was delivered by: COHILL

 I. Factual Background

 The plaintiff, Oliver E. Mattas, Jr., is an attorney licensed by the Commonwealth of Pennsylvania. He has a private practice, and was recently elected (unopposed) to his second term as District Attorney of Blair County, Pennsylvania.

 In November, 1982, Mr. Mattas was served with a Petition for Discipline filed by the Office of Disciplinary counsel, in which he was charged with violating seven Disciplinary Rules of the Pennsylvania Code of Professional Conduct. See Pennsylvania Rules of Disciplinary Enforcement (Pa. R.D.E.) (1983).

 On February 22, 1983, a hearing on the charges was held before a three-lawyer Hearing Committee pursuant to Pa. R.D.E. 206(b)(1). At the hearing, Mr. Mattas was represented by counsel and afforded the opportunity to present testimony and cross-examine witnesses. See Pa. R.D.E. 208. Prior to the commencement of the hearing he was advised that the Committee's findings and recommendation of discipline would not be binding on the Disciplinary Board of the Supreme Court or the Pennsylvania Supreme Court, and that both the Board and the Supreme Court make de novo reviews of the evidence.

 Under the rules, after the hearing is concluded, the Hearing Committee makes a recommendation to the Disciplinary Board. Then, "The Board shall either affirm or change . . . the recommendation of the hearing committee . . ." Pa. R.D.E. 208(d)(2). If the Disciplinary Board decides to dismiss, informally admonish or privately reprimand, arrangements are made with the respondent-attorney to appear before the Board or before Disciplinary Counsel. Pa. R.D.E. 208(d)(2)(ii). If the Board determines that the matter should be concluded by probation, public censure, suspension or disbarment, the Board submits the entire record to the Chief Justice of the Pennsylvania Supreme Court. Pa. R.D.E. 208(d)(2)(iii).

 The Supreme Court may then accept the recommendation of the Board or change the discipline. Pa. R.D.E. 208(e). Thus the Hearing committee may recommend some very light discipline such as a private admonishment or reprimand (as it did here); the Board may recommend more drastic punishment (here it recommended public censure), and the Supreme Court may impose a suspension of up to five years or the ultimate punishment for a lawyer-disbarment (here it ordered a two-year suspension).

 In this case, the Hearing Committee filed a report finding that Mr. Mattas had violated Disciplinary Rule 5-105(B) of the Professional Code of Responsibility, *fn1" and, as previously noted, recommended some form of private discipline. *fn2" The report was then sent to the Disciplinary Board for action.

 Pursuant to Disciplinary Board Rule § 89.201(c), the Disciplinary Counsel filed a brief with the Disciplinary Board, taking exception to the Hearing Committee's finding of only one Disciplinary Rule violation and its recommended discipline. Mr. Mattas filed a brief in opposition. No additional testimony was taken, and there were no arguments made to the Disciplinary Board.

 On September 26, 1983, the Disciplinary Board filed its recommendation, finding that the plaintiff had violated Disciplinary Rule 7-103(A) *fn3" as well as Rule 5-105(B) (previously noted) and recommended public censure.

 The entire record, including the various reports and briefs, was then sent to the Pennsylvania Supreme Court for consideration. No oral arguments or hearings were held and additional briefs were not requested. The only time the attorney has an absolute right to argue his case to the Supreme Court is where the Supreme Court has voted to disbar. Pa. R.D.E. 208(e)(3).

 On October 6, 1983, upon consideration of the record and the Board recommendation, the Pennsylvania Supreme Court ordered that Mr. Mattas be suspended from the practice of law for two years for the violation of Disciplinary Rules 5-105(B) and 7-103(A) of the Code of Professional Responsibility. Justice Larson voted for disbarment. The suspension was to take effect 30 days after the entry of the order. See Pa. R.D.E. 217(c). No reasons were given, and no opinion accompanied the order.

 The plaintiff subsequently filed a Motion for Reargument and Reconsideration which was summarily denied by the Pennsylvania Supreme Court on October 27, 1983. The plaintiff did not petition the United States Supreme Court for a Writ of Certiorari but rather filed the instant lawsuit based on the Civil Rights Act of 1870, 42 U.S.C. § 1983.

 II. Procedural Background

 On November 4, 1983, one day before the suspension was to take effect, Mr. Mattas filed a complaint with this Court alleging violations of the Civil Rights Act of 1870, 42 U.S.C. § 1983 and requesting injunctive relief against the implementation of the suspension. In his eight-count complaint, the plaintiff alleged, inter alia, that the disciplinary procedural rules promulgated by the Pennsylvania Supreme Court violated his constitutional rights to due process and equal protection since he was not given a full hearing before a neutral decision-making body prior to the suspension order.

 The plaintiff personally presented the complaint to us on November 4, and we were informed by him that the defendants had not been notified of the suit or served with the complaint. We, therefore, contacted Edward A. Burkhardt, Esq., counsel for the Pittsburgh office of the Disciplinary Board, who appeared before us to receive a copy of the complaint. Through a Pittsburgh-Philadelphia telephone conference, attended by Messrs. Mattas, Burkhardt and the Court in Pittsburgh, we informed Charles Johns, Esq. in Philadelphia, counsel for the Pennsylvania Supreme Court, of the complaint. After hearing the positions of all parties, we granted a Temporary Restraining Order ("TRO") pursuant to Fed. R. Civ. P. 65(b), until November 7, 1983, the date set for the hearing on the preliminary injunction.

 At the preliminary injunction hearing, Mr. Johns, acting as counsel for all of the defendants, advised us that he had just filed a Motion to Dismiss which asserted that: 1) this Court lacked subject matter jurisdiction; 2) the suit was prohibited by the 11th Amendment; 3) the doctrine of res judicata was applicable; and 4) the plaintiff had failed to state a claim for which relief could be granted. We agreed with the defendants that the 11th Amendment bars suits against a state or any branch of the state and held that Mr. Mattas' complaint, which named the Pennsylvania Supreme Court, the Pennsylvania Disciplinary Board and the Pennsylvania Office of Disciplinary Counsel, as entities, not the individuals comprising them, was therefore invalid. Rather than dismissing the complaint, we granted the plaintiff leave to amend so as to name the individuals. We deferred ruling on the defendants' other arguments for dismissal.

 After hearing testimony and arguments, we granted a preliminary injunction pursuant to Fed. R. Civ. P. 65 on the grounds that serious questions existed with respect to the constitutionality of the Pennsylvania Disciplinary Rules. We stated, however, that the granting of the injunction did not in any way obviate the defendants' motion to dismiss.

 On December 1, 1983, a hearing on the permanent injunction was held, at which time testimony was introduced by the defendants, and arguments were made by both parties. We ordered that the preliminary injunction ...

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