Jones v. Hulse

• Decision Date: 12 March 1968
• Docket Number: No. 18885.,18885.
• Citation: 391 F.2d 198
• Parties: F. Leland JONES, Appellant, v. Fred B. HULSE, General Chairman of Bar Committees of the Missouri Bar Administration, Forrest M. Hemker, C. Wallace Walter, Clyde J. Linde and James M. Reeves, Members of the Advisory Committee of the Missouri Bar Administration, and Hon. Marion Spicer, Clerk of the Supreme Court of Missouri, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

391 F.2d 198 (1968)

F. Leland JONES, Appellant, v. Fred B. HULSE, General Chairman of Bar Committees of the Missouri Bar Administration, Forrest M. Hemker, C. Wallace Walter, Clyde J. Linde and James M. Reeves, Members of the Advisory Committee of the Missouri Bar Administration, and Hon. Marion Spicer, Clerk of the Supreme Court of Missouri, Appellees.

No. 18885.

United States Court of Appeals Eighth Circuit.

March 12, 1968.

Charles F. Hamilton, St. Louis, Mo., for appellant, F. Leland Jones, atty., pro se, on the brief.

D. Jeff Lance, St. Louis, Mo., for appellees, Frederick H. Mayer, St. Louis, Mo., on the brief.

Before VAN OOSTERHOUT, Chief Judge, MATTHES, Circuit Judge, and HARRIS, Chief District Judge.

PER CURIAM.

This action is a sequel to a disciplinary proceeding in the Supreme Court of Missouri resulting in the suspension of F. Leland Jones, an attorney, from the practice of law in Missouri for a minimum period of three years. The facts underlying Jones' solicitation of personal injury claims, through the agency of and in conjunction with one Walter Candy, in violation of Rules 4.27 and 4.28 of the Supreme Court of Missouri, V.A.M.R., can be found in the opinion of the Supreme Court of Missouri, not officially published.

A petition for rehearing filed by Jones was denied by the Missouri Supreme Court on February 14, 1966. On February 15, 1966 that Court, in response to Jones' motion, ordered its mandate stayed for a period of 90 days. Thereafter, Jones, appellant herein, petitioned the Supreme Court of the United States for a writ of certiorari to review the order of suspension, which was denied on October 12, 1966. In re Jones, 385 U.S. 866, 87 S.Ct. 126, 17 L.Ed.2d 93 (1966).

Following the denial of certiorari Jones promptly filed this action on October 14, 1966 in the United States District Court for the Eastern District of Missouri. On the same day the Supreme Court of Missouri again stayed its mandate presumably until the outcome of the federal litigation. In response to Jones' second amended complaint, filed on February 28, 1967, defendants,¹ appellees herein, filed a motion to dismiss or alternatively for summary judgment.² The district court, Honorable Roy W. Harper, Chief Judge, granted appellees' motion to dismiss on the ground that it lacked jurisdiction over the subject matter of the action. Jones v. Hulse, 267 F.Supp. 37 (E.D.Mo.1967).

In brief appellant's second amended complaint alleges that the decision of the Supreme Court of Missouri resulted from and was an integral part of state disciplinary proceedings in which appellant's federal constitutional rights to due process of law and freedom of speech and association were violated.³

Appellant predicates the alleged deprivation of his constitutional rights on several premises. In particular he submits that the General Chairman and other members of The Advisory Committee, who prosecuted appellant's misconduct in a disciplinary proceeding before the Missouri Supreme Court, (1) knowingly and intentionally introduced and relied on the perjurious testimony of Walter Candy in their brief and oral argument before that Court, and (2) misrepresented to the Supreme Court of Missouri that they had voluntarily complied with appellant's motion to produce certain evidence, whereas in fact they had suppressed evidence favorable to appellant for fear that "Candy might implicate them in his giving of perjurious testimony." From these premises appellant argues that although the Supreme Court expressly disavowed any reliance on the perjurious testimony of Candy, the Court nonetheless either consciously or unconsciously was compelled to and did in fact predicate its judgment on such testimony and thereby deprived appellant of his constitutional right to a fair hearing.

In the nature of relief appellant prayed for an injunction (1) permanently enjoining the members of The Advisory Committee from initiating, taking or participating in any action or proceeding to enforce the mandate of the Supreme Court of Missouri, and (2) restraining the Clerk of the Supreme Court from issuing the mandate.

We affirm. The limited circumstances under which a federal court can scrutinize a state disbarment proceeding have been clearly delineated by the United States Supreme Court in the landmark case of Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585 (1917). Although Selling is factually distinguishable in that it involved a proceeding instituted in the Supreme Court to strike Radford's name from the roll of attorneys of that Court, its teachings are apposite for the reason that the Supreme Court took into consideration the validity of a judgment of the Michigan Supreme Court disbarring Radford. In speaking to the effect of the state court action the Supreme Court narrowly circumscribed its scope of review of disbarment proceedings:

"We are of the opinion that we should recognize the condition created by the judgment of the state court unless, from an intrinsic consideration of the state record, one or all of the following conditions should appear: 1. That the state procedure from want of notice or opportunity to be heard was wanting in due process; 2, that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty accept as final the conclusion on that subject; or 3, that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice, we were constrained so to do." 243 U.S. at 50-51, 37 S.Ct. at 378-379.

The Supreme Court again had occasion to consider the effect of a state judgment disbarring an attorney in Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957). In this case the United States District Court for the Eastern District of Louisiana had ordered petitioner's name stricken from its roll of attorneys by reason of his disbarment by the Supreme Court of Louisiana for personal misconduct, despite his admitted mental incompetency at the time of the misconduct. The Court of Appeals affirmed, and the Supreme Court granted certiorari to review the propriety of the district court's action. The problem which confronted the Supreme Court concerned the recognition to be accorded the state court judgment and the jurisdiction of the federal courts to override that determination. The Supreme Court readopted the standards of Selling v. Radford, supra, stating, inter alia:

"It is not for this Court, except within the narrow limits for review open to this Court, as recently canvassed in Konigsberg v. State Bar of California, 353 U.S. 252 77 S.Ct. 722, 1 L.Ed. 2d 810, and Schware v. Board of Bar Examiners, 353 U.S. 232 77 S.Ct. 752, 1 L.Ed.2d 796, to sit in judgment on Louisiana disbarments, and we are not in any event sitting in review of the Louisiana judgment."⁴ 354 U.S. at 281, 77 S.Ct. at 1276.

The Supreme Court, however, found "grave reason" under the rationale of Selling v. Radford to refuse to extend recognition to the state court judgment in a federal disbarment proceeding. The Court intimated that acceptance of the state court mandate as binding on the federal courts under the facts of that case "`would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice, we were constrained so to do, Id. Selling v. Radford, at 51 37 S.Ct. 377." Theard v. United States, supra, 354 U.S. at 282, 77 S.Ct. at 1277. The district court's order of disbarment was accordingly reversed on the basis that "the principles of right and justice" did not require a federal court to enforce the disbarment of an attorney whose misconduct occurred during a siege of severe mental abnormality.

This Court has similarly adhered to the principles enunciated in Selling v. Radford, supra. See, e. g., In re Noell, 93 F. 2d 5 (8th Cir. 1937), where we refused to recognize as valid an order of suspension by the state court based on proceedings, which by reason of lack of notice and opportunity to be heard, were lacking in due process. Unlike the present situation, however, our review of a state suspension order in Noell arose as the result of a proceeding to strike the name of the attorney from the roll of the bar of this Court. See also In re Rhodes, 370 F.2d 411 (8th Cir. 1967), cert. denied 386 U.S. 999, 87 S.Ct. 1321, 18 L.Ed.2d 349 (1967). Other federal courts have similarly embraced the Selling v. Radford rationale in disbarment proceedings originating in the district court or Court of Appeals. See, e. g., In re Ruffalo, 370 F.2d 447 (6th Cir. 1966), cert. granted, 389 U.S. 815, 88 S.Ct. 30, 19 L.Ed.2d 66 (1967); Howard v. United States District Court for D. of C., 318 F.2d 521 (10th Cir. 1963); In re Crow, 283 F.2d 685 (6th Cir. 1960); In re MacNeil, 266 F.2d 167 (1st Cir. 1959), cert. denied, 361 U.S. 861, 80 S.Ct. 120, 4 L.Ed.2d 103 (1959); In re Bennethum, 196 F.Supp. 541 (D.Del.1961); cf. Saier v. State Bar of Michigan, 293 F.2d 756, 759-760 (6th Cir. 1961), cert. denied, 368 U.S. 947, 82 S.Ct. 388, 7 L.Ed.2d 343 (1961).⁵

Apart from Noell and Rhodes and other cases, which, as we have seen, involved proceedings to suspend or disbar attorneys in the federal courts, the Courts of Appeals have consistently refrained from entertaining an original action to review the validity of a state court judgment. Clark v. State of Washington, 366 F.2d 678 (9th Cir. 1966); Gately v. Sutton, 310 F.2d 107 (10th Cir. 1962).

The alleged denial of due process and violation of appellant's other constitutional rights as well as the deprivation of his civil rights, assertedly...