Getty v. Reed, s. 76-1633

• Citation: 547 F.2d 971
• Decision Date: 08 February 1977
• Docket Number: Nos. 76-1633,76-1701,s. 76-1633
• Parties: Richard J. GETTY, Plaintiff-Appellant, v. Scott REED et al., Defendants-Appellees. John W. COLLIS, Plaintiff-Appellant, v. Scott REED et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 971

547 F.2d 971

Richard J. GETTY, Plaintiff-Appellant, v. Scott REED et al., Defendants-Appellees.

John W. COLLIS, Plaintiff-Appellant, v. Scott REED et al., Defendants-Appellees.

Nos. 76-1633, 76-1701.

United States Court of Appeals Sixth Circuit.

Argued Oct. 12, 1976.

Decided Jan. 5, 1977.

Rehearing Denied Feb. 8, 1977.

Richard Alan Getty, Cleveland, Ohio, for plaintiffs-appellants.

Eugene Gressman, Van Arkel, Kaiser, Gressman & Rosenberg, Washington, D.C., for plaintiff-appellant in No. 76-1633.

Robert F. Stephens, Atty. Gen., H. N. McTyeire, Asst. Atty. Gen., Ben B. Fowler, Stites, McElwain & Fowler, Frankfort, Ky., for defendants-appellees.

Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge, and MILLER, Judge, U. S. Court of Customs and Patent Appeals. ^*

EDWARDS, Circuit Judge.

This consolidated appeal concerns two cases involving lawyers. One of them, Getty, was disciplined, and the other, Collis, was disbarred in state proceedings in Kentucky. After exhausting state remedies and having certiorari denied by the United States Supreme Court, each filed a civil rights complaint in the United States District Court which was dismissed for want of jurisdiction. Our appellate issues are narrow procedural problems under the three-judge court statute, 28 U.S.C. § 2281 (1970). In the midst of a welter of at least somewhat conflicting case precedent, and without ever getting close to the merits of the issues which are of such importance to the litigants, in the Collis case we affirm; in the Getty case we vacate and remand.

On the heels of Congressional decision to eliminate three-judge District Courts ¹ at least for most purposes these cases (filed before the repeal) serve to remind us of some of the reasons why most judges greatly favored the change.

These suits were brought in the United States District Court for the Eastern District of Kentucky attacking a Kentucky statute, K.R.S. § 30.170 (1975) ² and Part 3 of the Rules of the Kentucky Court of Appeals. Appellants sought declaratory and injunctive relief under 42 U.S.C. § 1983 (1970) for claimed federal due process violations. They invoke federal jurisdiction under 28 U.S.C. § 1343 (1970) which grants "original jurisdiction" to the United States District Courts to hear and determine claims founded on asserted deprivation of civil rights under the Federal Constitution and laws. In the District Court they sought the impaneling of a three-judge court under 28 U.S.C. § 2281 (1970) to consider their federal constitutional claims.

The District Judge in separate memorandum opinions ³ held that the District Court had no "jurisdiction" to hear the petitions for injunctive relief under 42 U.S.C. § 1983 (1970). It was his view that these cases represented attempts to appeal from a final decision of the then Kentucky Court of Appeals (now the Supreme Court of Kentucky) and that such an appeal could only be taken to the Supreme Court of the United States. He dismissed both suits without seeking the impaneling of the three-judge court.

The above-cited statute and rules provide a three tiered procedure for disbarment of Kentucky lawyers. At the first level there is a complete due process hearing before a trial panel which makes "advisory" findings and recommendations. At the second level the record made before the trial panel, together with its disciplinary recommendations, is presented to the Board of Governors of the Kentucky Bar Association, which thereafter makes its recommendation to the Court of Appeals of Kentucky. At the third level of review, the Court of Appeals hears argument on the record thus developed and makes its decision as to both guilt and penalty.

Getty was found guilty of abusive conduct and speech in four state court trials. Kentucky Bar Association v. Getty, 535 S.W.2d 91 (Ky.Ct.App.1975), cert. denied, 423 U.S. 1048, 96 S.Ct. 773, 46 L.Ed.2d 636 (1976). In the Getty case appellant attacks his six months suspension by the Court of Appeals on the ground that under due process the Court of Appeals was without power to find Getty guilty on all charges and administer a six months suspension after the trial committee had found him not guilty on all charges, and the Board of Governors had found him not guilty on all counts, except one, with the recommendation of a one month suspension. He also claims that the suspension was based upon speech which is protected by the First Amendment.

Collis was found guilty and disbarred for improper handling of funds belonging to several different clients. Kentucky Bar Association v. Collis, 535 S.W.2d 95 (Ky.Ct.App.1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 795, 46 L.Ed.2d 637 (1976). As to the Collis appeal the due process claim is that review by the Board of Governors in a closed proceeding in and of itself violates federal due process standards.

The function of the District Judge in whose court a cause of action seeking a three-judge court is brought is limited indeed. Basically it is to notify the Chief Judge of the Circuit Court of the pendency of the litigation and ask his designation of the other members of the court. He can and should, however, screen the pleading filed and dismiss it if 1) the District Court has no jurisdiction over the action (Gonzalez v. Employees Credit Union, 419 U.S. 90, 100, 95 S.Ct. 289, 42 L.Ed.2d 249 (1974); Ex parte Poresky, 290 U.S. 30, 31, 54 S.Ct. 3, 78 L.Ed. 152 (1933)) or 2) the federal claims are " wholly insubstantial" and obviously frivolous and without merit within the meaning of Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1972). See also Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Ex parte Poresky, supra.

Our review of these two complaints indicates that appellants did clearly allege that K.R.S. § 30.170 and Part 3 of the Rules of the Kentucky Court of Appeals violate the Federal Constitution's due process clause. These rules are rules adopted by Kentucky's highest court and are applicable statewide in disciplinary matters pertaining to Kentucky lawyers. Appellants seek both injunctive and declaratory relief. As noted above, they claim a right of action under § 1983 and assert federal jurisdiction under § 1343 and seek three-judge court adjudication under § 2281. Without reference at this point to such questions as the substantiality of the claims or to such defenses as res judicata and collateral estoppel, we hold that the District Court had jurisdiction of the complaints.

We note, of course, the District Judge's reliance upon the Ginger and Coogan cases in this court. Ginger v. Circuit Court for the County of Wayne, 372 F.2d 621 (6th Cir.), cert. denied, 387 U.S. 935, 87 S.Ct. 2061, 18 L.Ed.2d 998 (1967); Coogan v. Cincinnati Bar Association, 431 F.2d 1209 (6th Cir. 1970). These cases do, as the District Judge observed, stand for the proposition that the District Court has no appellate jurisdiction as to final decisions of a state supreme court or, a fortiori, the United States Supreme Court. However, the instant complaints are original claims which allege state law violation of the Federal Constitution.

In neither the Ginger nor Coogan cases was there an attack on the federal constitutionality of a state statute and regulation. In neither instance did the complainant seek the convening of a three-judge court to determine the federal constitutional claim. In neither case was the District Court decision or that of the Court of Appeals founded on lack of jurisdiction. Neither case is precedent for our instant appeal.

If, for example, the rules adopted by the Kentucky Court of Appeals had been such as to permit filing of secret complaints against lawyers and in camera hearings and disbarment as a result of said complaints without written statement of charges or opportunity for a public hearing and confrontation of witnesses and our current complainants had been disbarred in such a proceeding with final affirmation of that decision by the state's highest court, would there be doubt that under the Fourteenth Amendment and the supremacy clause the three-judge court would have "jurisdiction"? We think not.

We believe these principles have been established by precedents of this court: Calloway v. Briggs, 443 F.2d 296 (6th Cir.), cert. denied, 404 U.S. 916, 92 S.Ct. 230, 30 L.Ed.2d 190 (1971); Protestants and Other Americans United for Separation of Church and State v. United States, 435 F.2d 627 (6th Cir. 1970), cert. denied, 403 U.S. 955, 91 S.Ct. 2277, 29 L.Ed.2d 865 (1971); Noe v. True, 507 F.2d 9 (6th Cir. 1974).

In Noe v. True, supra, we said:

The complaint filed sought an injunction restraining enforcement of a state statute, and is thus governed by 28 U.S.C. §§ 2281 and 2284. Section 2281 provides:

"An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title."

The single-judge district court was thus without power to dismiss the complaint on its merits for failure to state a cause of action, unless the constitutional attack was insubstantial. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). A claim is insubstantial for purposes of avoiding the three-judge court requirement:

only if "its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave (open) no room for the inference that the questions sought to be raised can be the subject of controversy." Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1972).

...