Razatos v. Colorado Supreme Court

• Decision Date: 21 October 1982
• Docket Number: Civ. A. No. 82-Z-632.
• Citation: 549 F. Supp. 798
• Parties: Peter S. RAZATOS, Plaintiff, v. The COLORADO SUPREME COURT, P.V. Hodges, R.B. Lee, W.H. Erickson, L.D. Rovira, G.E. Lohr, J.E. Dubofsky, and J.R. Quinn, in their capacities as Justices of the Colorado Supreme Court, Defendants.
• Court: U.S. District Court — District of Colorado

549 F. Supp. 798

Peter S. RAZATOS, Plaintiff, v. The COLORADO SUPREME COURT, P.V. Hodges, R.B. Lee, W.H. Erickson, L.D. Rovira, G.E. Lohr, J.E. Dubofsky, and J.R. Quinn, in their capacities as Justices of the Colorado Supreme Court, Defendants.

Civ. A. No. 82-Z-632.

United States District Court, D. Colorado.

October 21, 1982.

Albert T. Frantz, Lakewood, Colo., and Jonathon B. Chase, South Royalton, Vt., and Erick K. Furedy, Denver, Colo., for plaintiff.

Jill A. Gross, Asst. Atty. Gen., Gen. Legal Services Section, Denver, Colo., for defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

WEINSHIENK, District Judge.

This case is brought pursuant to 42 U.S.C. § 1983. Plaintiff, a licensed attorney suspended from practice, is seeking a declaratory judgment that Colo.R.Civ.P. 252¹ violates the due process clause of the Fourteenth Amendment of the United States Constitution. He also seeks an injunction prohibiting the defendants from continuing the suspension of his license.

Plaintiff's license was suspended by the defendants on June 22, 1981. The charges leading to the suspension were first heard by the three-member Hearing Committee, which recommended the three-year suspension. The findings and recommendation of the Committee were referred to the nine-member Hearing Panel, three of the members of the Panel being members of the Committee. The Panel approved the findings of the Committee, and drafted a report which was adopted by the defendants. The plaintiff's petition for rehearing was denied, and he appealed to the United States Supreme Court, which dismissed the appeal. Razatos v. People, appeal dismissed, 455 U.S. 930, 102 S.Ct. 1415, 71 L.Ed.2d 639 (1982).

The case is now before this court on defendants' Motion to Dismiss and on plaintiff's Motion for Summary Judgment and Memorandum in Support of Motion for Summary Judgment. The issues have been extensively briefed by both sides and the Court is prepared to rule on these Motions. In his Motion for Summary Judgment, plaintiff asserts that there are no genuine issues of fact and that he is entitled to judgment as a matter of law. He claims that Colo.R.Civ.P. 252, which controls attorney discipline proceedings, constitutes a denial of due process because the final arbiters of fact, the Justices of the Colorado Supreme Court, do not personally hear the testimony of the accused attorney or other witnesses.

In support of their Motion to Dismiss, the defendants put forward three grounds: (1) that the Court lacks original jurisdiction since the only forum for review of decisions of the Colorado Supreme Court is the United States Supreme Court; (2) that the Court lacks subject matter jurisdiction because the plaintiff has failed to raise a federal question; and (3) that the plaintiff has failed to state a claim upon which relief can be granted. The plaintiff argues that he is not attacking the constitutionality of Rule 252 as applied in his particular case, but is attacking the constitutionality of the rule as a whole. He asserts that this raises a federal question which was not decided by the United States Supreme Court in denying his appeal.

The Tenth Circuit in Doe v. Pringle, 550 F.2d 596 (10th Cir.1976), addressed a similar claim by a plaintiff who claimed that the denial of his admission to the Colorado Bar was a violation of due process. The court in Doe drew the distinction between attacking a rule as applied to a particular plaintiff and attacking the rule itself. The plaintiff in the instant case attempts to rely on this distinction, urging that he is attacking the rule, rather than the Colorado Supreme Court's action pursuant to the rule in his particular case. The Court finds plaintiff's distinction to be unpersuasive because, as the court in Doe also found, plaintiff's action here is "in essence, an attempt ... to seek review in inferior federal courts of the entire state proceedings, including the order of the Colorado Supreme Court .... That function is one reserved exclusively to the United States Supreme Court." 550 F.2d at 599. Plaintiff took his claim of due process violation to the United States Supreme Court and his appeal was denied. Now, he attempts to bring a similar action in the United States District Court by wording his claim as an attack on the rule rather than its application to him. In substance, he continues to appeal his suspension from the practice of law, and this he cannot do.

Even if the claim is properly before the Court on the grounds that it attacks the constitutionality of Rule 252 rather than Rule 252 as applied to the plaintiff, the Court finds the case of Mildner v. Gulotta, 405 F.Supp. 182 (E.D.N.Y.1975), aff'd, 406 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1975), to be persuasive in considering plaintiff's claim. In Mildner, the New York procedures for attorney discipline were attacked as being a denial of due process for the same reason that plaintiff here attacks Rule 252. In both the New York and the Colorado disciplinary proceedings, the body making the final decision does not hear live testimony. The court in Mildner held that it is not "constitutionally required that the ... final arbiter of the facts have personally heard the accused attorneys or other witnesses ...." 405 F.Supp. at 195. It should be noted that Mildner was cited with approval in Doe v. Pringle, supra, as a case which reflects "a pronounced restriction of subject matter jurisdiction in the federal courts" in 42 U.S.C. § 1983 actions. 550 F.2d at 600. Therefore, even if plaintiff has framed his claim so that it raises a federal question, this Court agrees with the New York court and concludes that Rule 252 does not constitute a denial of due process.

Because original and exclusive jurisdiction over the discipline of attorneys lies with the Colorado Supreme Court, the United States Supreme Court being the sole forum for review, this Court does not have original jurisdiction over plaintiff's claim. In addition, plaintiff's assertion that he is raising a federal question is not persuasive, and, therefore, this Court does not have subject matter jurisdiction. Furthermore, Colo.R.Civ.P. 252 does not violate due process. For all of these reasons, it is

ORDERED that defendants' Motion to Dismiss is granted and that plaintiff's Motion for Summary Judgment is denied. It is

FURTHER ORDERED, in view of the above ruling, that Defendants' Cross Motion for Summary Judgment...