Phelps v. Kansas Supreme Court, 79-2297

• Decision Date: 19 November 1981
• Docket Number: No. 79-2297,79-2297
• Citation: 662 F.2d 649
• Parties: Fred W. PHELPS, Sr., Plaintiff-Appellant, v. KANSAS SUPREME COURT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 649

662 F.2d 649

Fred W. PHELPS, Sr., Plaintiff-Appellant, v. KANSAS SUPREME COURT, et al., Defendants-Appellees.

No. 79-2297.

United States Court of Appeals Tenth Circuit.

Argued Sept. 15, 1980.

Decided Oct. 5, 1981.

Rehearing Denied Nov. 19, 1981.

Charles S. Fisher, Jr., Topeka, Kan. (Fisher, Ochs & Heck, Topeka, Kan., with him on the brief), for plaintiff-appellant.

Philip A. Harley, Topeka, Kan. (Scott, Quinlan & Hect, Robert T. Stephan, Atty. Gen. of Kansas and Bruce E. Miller, Deputy Atty. Gen., Topeka, Kan., with him on the brief), for defendants-appellees.

Robert F. Bennett of Bennett, Lytle, Wetzler, Winn & Martin, Prairie Village, submitted brief of amicus curiae Kansas Bar Association.

Before McWILLIAMS, BREITENSTEIN and McKAY, Circuit Judges.

BREITENSTEIN, Circuit Judge.

This civil rights action was brought under 42 U.S.C. § 1983, with jurisdiction asserted under 28 U.S.C. § 1343. Plaintiff-appellant Phelps, a lawyer, was disbarred by the defendant-appellee Kansas Supreme Court. The members of that court and its disciplinary administrator were joined as defendants. Phelps claims that he was denied his constitutional right to due process. The federal district court denied plaintiff's motion for a preliminary injunction and sustained the defendants' motion to dismiss. We affirm.

By stipulation the trial court received and considered the entire record before the Kansas Supreme Court in the disbarment proceedings. State v. Phelps, 226 Kan. 371, 598 P.2d 180, cert. denied, 444 U.S. 1045, 100 S.Ct. 732, 62 L.Ed.2d 731, and also the record on appeal of the Kansas state court case of Robinson v. Brady. The disbarment proceedings were based on the conduct of the plaintiff in Robinson v. Brady. The pertinent facts are detailed in the opinion of the Kansas Supreme Court, 598 P.2d 180-183, and need not be repeated.

Kansas has comprehensive procedures for the discipline of attorneys. See Rules of the Supreme Court Discipline of Attorneys 224 Kan. LXXXI et seq., Deft.'s Exs. C & D. Complaints or reports of alleged misconduct are filed with the Disciplinary Administrator who makes recommendations to a Review Panel. If formal disciplinary action is instituted by the Administrator, a complaint is served on the respondent who has opportunity to answer. The Review Panel conducts a hearing after notice. Respondent is entitled to representation, cross-examination of witnesses, and submission of evidence. If the Review Panel recommends discipline, respondent may present exceptions which are heard by the Kansas Supreme Court. Provision is made for briefing and argument after preparation and service on respondent of a transcript of the hearing before the Review Panel. The court then imposes "such discipline as may be deemed just and proper."

The Review Panel stated the charges against plaintiff as: (1) violation of his attorney's oath; (2) dishonest conduct in violation of DR 1-102(A)(4); (3) conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5); (4) false statements in violation of DR 7-102(A)(5); and (5) signing a pleading in bad faith in violation of Kansas statute KSA 60-211. The Review Panel found violations of items (2) through (5) and recommended public censure.

On plaintiff's exceptions to the report of the Review Panel the Kansas Supreme Court said, 598 P.2d at 186:

"We have carefully and painstakingly reviewed the voluminous transcripts and exhibits and conclude there is clear and convincing evidence to support the panel's finding that respondent violated (the four items mentioned above)."

The Supreme Court also said, Id. at 187:

"Additionally, we find the entire record before us clearly supports a violation of DR 7-102(A)(1)."

The last mentioned disciplinary provision says that a lawyer shall not take action on behalf of a client "when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." After noting that plaintiff had been previously suspended from law practice, because of unprofessional conduct in 1969, see 598 P.2d 187, the court changed the penalty from that recommended by the Review Panel to that of disbarment. This action was in accord with an earlier ruling that the recommendations of the Review Panel "are advisory only and not binding on this court." State v. Johnson, 219 Kan. 160, 546 P.2d 1320, 1322.

Plaintiff claims that the action of the Kansas Supreme Court finding a violation of a disciplinary standard not charged in the proceedings before the Review Panel deprived him of due process because he had no notice of, or opportunity to defend against, that specific charge. In taking its action the Kansas court had before it, and considered, only the evidence adduced in support of the violations charged in the complaint before the Review Panel. That evidence was confined to the misconduct of the plaintiff in the Robinson v. Brady litigation. The case at bar is distinguishable from In Re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117. That case involved two different, distinct, and unrelated incidents of misconduct and the respondent lawyer had notice only of one. We are concerned with one continued and integrated pattern of misconduct, plaintiff's actions in the Robinson v. Brady litigation. Plaintiff had full knowledge that his actions in that litigation were the basis for the disciplinary proceedings and full opportunity to present his defense. The Kansas court concluded that the misconduct in Robinson v. Brady violated another ethical standard in addition to the standards considered by the Review Panel.

Plaintiff argues that the district court erred in granting the defendants' motion to dismiss. The record shows that the case was heard on its merits with stipulated evidence. The lower federal courts do not have subject matter jurisdiction to review state disbarment proceedings. Selling v. Radford, 243 U.S. 46, 50, 37 S.Ct. 377, 378, 61 L.Ed. 585; Doe v. Pringle, 10 Cir., 550 F.2d 596, 599, see also, Theard v. United States, 354 U.S. 278, 282, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342. The United States Supreme Court reviews state disciplinary proceedings on appeal from and on certiorari to the state supreme court. See e. g. Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444; Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574. Certiorari was sought and denied in this case. 444 U.S. 1045, 100 S.Ct. 732, 62 L.Ed.2d 731.

We have recognized the difference between a particularized attack on state action affecting an individual attorney and an attack on the state's general rules and regulations pertaining to the law practice. Younger v. Colorado State Board of Law Examiners, 10 Cir., 625 F.2d 372, 375-376. In the case at bar plaintiff attacks the general rules and their application to him. The district court held that the general rules were constitutional and we agree. The attack on those rules borders on the frivolous.

The question is the application of those rules to plaintiff. In effect the district court held that the rules were not unconstitutionally applied. Hence, there was no deprivation of a constitutional right and a claim could not be sustained under § 1983.

The Kansas Supreme Court could have disbarred Phelps on any one of the charges heard and considered by the Review Panel and sustained by the court. The issue narrows to whether, by finding plaintiff in violation of an ethical standard not specified in the complaint against him, the disbarment must fail because of denial of due process. On the other charges, plaintiff does not assert a due process claim. Indeed, he cannot because he had notice and full opportunity to be heard.

The record does not disclose whether plaintiff raised the due process claim on the additional charge either by way of petition for rehearing to the Kansas Supreme Court or in his petition to the Supreme Court of the United States for certiorari review. Under Kansas Disciplinary Rule 219(a) he could have, and still can, apply for reinstatement by showing that "he has rehabilitated himself or that he is entitled to have the order of discipline vacated, terminated or modified." (Emphasis supplied.) Instead of doing so he sought § 1983 relief in federal court. We doubt whether § 1983 relief is available when a complainant does not exhaust the state remedy which is available to him. The United States Supreme Court has not decided this issue. See e. g. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 415 n. 5, 66 L.Ed.2d 308. We decline to decide it here because the case can be disposed of on other grounds.

The Kansas court found one statutory and three ethical standard violations. Any one of these sufficed to sustain the disbarment sanction. These violations were free from any claim of unconstitutionality. Plaintiff says that the disbarment must be enjoined because on the same evidence the court found violation of another ethical standard, and in so doing deprived plaintiff of his due process rights. We disagree.

In the criminal law field, the Supreme Court has held that when several concurrent sentences are within the legal maximum and not legally deficient, a court in the exercise of its judicial discretion may decline to consider a separate charge which may not be legally supportable. See Roviaro v. United States, 353 U.S. 53, 59 n. 6, 77 S.Ct. 623, 627, 1 L.Ed.2d 639; and Barnes v. United States, 412 U.S. 837, 841, 93 S.Ct. 2357, 2360, 37 L.Ed.2d 380. The Court has applied the same principle when a trial on several counts is followed by a general sentence. That sentence may be upheld if conviction on any one of the counts is supportable. Barenblatt v. United States, 360 U.S. 109, 115, 79 S.Ct. 1081, 1087, 3 L.Ed.2d 1115.

Benton v. Maryland, 395 U.S. 784, 789-790, 89 S.Ct. 2056, 2059-2060, 23 L.Ed.2d 707, says that the concurrent sentence doctrine does not remove the elements needed to create a justiciable...