MATTER OF REINSTATEMENT OF LEAF, 93-MISC-59.

• Decision Date: 22 April 1994
• Docket Number: No. 93-MISC-59.,93-MISC-59.
• Citation: 849 F. Supp. 1284
• Parties: In re: The Matter of REINSTATEMENT OF Linda A. LEAF, Petitioner.
• Court: U.S. District Court — Eastern District of Wisconsin

849 F. Supp. 1284

In re: The Matter of REINSTATEMENT OF Linda A. LEAF, Petitioner.

No. 93-MISC-59.

United States District Court, E.D. Wisconsin.

April 22, 1994.

Charles L. Ollivier, Waukegan, IL, for petitioner.

Warren D. Weinstein, Asst. Atty. Gen., Dept. of Justice, Madison, WI, for Bd. of Attys. Professional Responsibility.

DECISION AND ORDER

RANDA, District Judge.

Petitioner, Linda A. Leaf ("Leaf"), moves this Court to reconsider its decision denying her petition for reinstatement to practice before this Court. Leaf's initial argument for reinstatement was, as stated in the Court's prior order,

... one that falls, if it falls at all, under the third condition cited in Selling, i.e., that a "grave reason" exists for this Court not to give effect to the order of the Wisconsin Supreme Court.¹

(Decision and Order dated March 1, 1994 at 7.) The Court concluded that the Wisconsin Supreme Court's decisions on disciplinary matters are given "great deference" and the Supreme Court's refusal to reinstate Leaf solely because of her failure to comply with an order of that court to pay costs was not a "grave reason" to disregard its decision. The Court also commented in a footnote that, from the record before it, Leaf had "ample notice and opportunity to be heard" and did not argue "that there was an infirmity of proof as to the facts found."

Leaf argues that the Court erred in stating that she did not raise any "due process" or "infirmity of proof" arguments in support of her petition for reinstatement. Leaf claims she expressly reserved such arguments until the Court first decided whether or not she must pay the costs assessed against her by the Wisconsin Supreme Court before gaining reinstatement to practice before this Court. Having thus reserved the right to so argue, Leaf further claims that the U.S. Supreme Court's decision in Selling requires the Court to conduct a full evidentiary hearing on the issues of "due process" and "infirmity of proof" before denying her petition.

Leaf misconstrues Selling. Selling does not automatically require an evidentiary hearing on such issues. In fact, in the vast majority of cases, Selling requires federal courts to accept a state court's determination of a lawyer's fitness to practice law as dispositive of the lawyer's fitness to practice before the federal courts. The presumption is against any independent review of the underlying state court disciplinary proceedings:

Meeting this situation, we are of the opinion that, on the case presented, our duty is not to review the action of the state court of last resort, — a power which we do not possess, — but wholly to abdicate our own functions by treating its judgment as the thing adjudged, excluding all inquiry on our part, and yet not, in considering the right of one to continue to be a member of the Bar of this court, to shut our eyes to the status, as it were, of unworthiness to be such a member which the judgment must be treated as having established, unless for some reason we deem that consequence should not now be accepted.

Selling, 243 U.S. at 50, 37 S.Ct. at 378. (Emphasis ours.) The only time a federal court is compelled to independently consider the fitness issue is when, upon "intrinsic consideration of the state record", the court finds one of the following deficiencies:

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, consistent 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.

Id., at 51, 37 S.Ct. at 379. (Emphasis ours.) Obviously, "an intrinsic consideration of the state record" cannot mean that a federal court is compelled to review the entire record of the state court proceedings, including complete hearing transcripts, pre-trial motions, discovery proceedings, etc., before deciding whether fresh consideration of the fitness issue is warranted. Such...