Sullivan v. Alabama State Bar

• Decision Date: 28 April 1969
• Docket Number: Civ. A. No. 2820-N.
• Citation: 295 F. Supp. 1216
• Parties: Thomas W. SULLIVAN, Plaintiff, v. ALABAMA STATE BAR, a corporate body, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

295 F. Supp. 1216

Thomas W. SULLIVAN, Plaintiff, v. ALABAMA STATE BAR, a corporate body, et al., Defendants.

Civ. A. No. 2820-N.

United States District Court M. D. Alabama, N. D.

February 4, 1969.

Judgment Affirmed April 28, 1969.

Fred Blanton, Birmingham, Ala., for plaintiff.

Truman Hobbs, Hobbs, Copeland, Franco, Riggs & Screws, Montgomery, Ala., for the Bar, its Board of Commissioners and defendant officers.

MacDonald Gallion, Atty. Gen., Gordon Madison, Asst. Atty. Gen., State of Alabama, Montgomery, Ala., for the Justices of the Alabama Supreme Court.

Before RIVES, Circuit Judge, and JOHNSON and ALLGOOD, District Judges.

Judgment Affirmed April 28, 1969. See 89 S.Ct. 1486.

ON MOTION TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS

PER CURIAM:

This cause is submitted on a motion to dismiss and for judgment on the pleadings filed by the Chief Justice and Associate Justices of the Supreme Court of Alabama and on a like motion filed by the Alabama State Bar, its Board of Commissioners and officers.

There can be little or no dispute about the pertinent basic facts as disclosed by the complaint. The Board of Commissioners of the Alabama State Bar was first established in 1923.¹ The members in good standing of the Alabama State Bar in each judicial circuit of the State select one member of said Board of Commissioners, Sec. 22. Thus, there are 36 State judicial circuits and 36 members of the Board of Commissioners. There are wide variances among the judicial circuits both in total population and in the number of licensed lawyers.

At an annual meeting of the lawyers of Alabama held at such place and time as the Board of Commissioners designate and open to all members of the State Bar in good standing, a president and a first vice-president of the State Bar are elected by majority vote by the members of the State Bar present and voting. Sec. 24. Broad powers and authority are conferred on the Board of Commissioners, including the following:

"* * * (c) subject to the approval of the supreme court, to formulate rules governing the conduct of all persons admitted to practice, and to investigate, or cause to be investigated, and to pass upon, all complaints that may be made concerning the professional conduct of any person who has been, or may hereafter be, admitted to the practice of the law; (d) subject to the approval of the supreme court, to formulate rules governing the reinstatement of members of the bar who have been disbarred, and to pass upon all petitions for reinstatement; (e) to appoint one or more committees from the membership of the board, or from the membership of the entire bar, or partly from one and partly from the other, to take evidence in connection with any complaint filed against any attorney and forward the same to the board. * * * The board shall administer such discipline, by public or private reprimand, suspension from the practice of law, or exclusion and disbarment therefrom, as the case shall, in their judgment, warrant. A majority of the board shall constitute a quorum and the majority of those present (if a quorum be present) shall be empowered to act as and for the entire board. The supreme court may, and on petition of the party aggrieved must, in any case of suspension or disbarment from practice, review the action of the board, and may, on its own motion, and without the certification of any record, inquire into the merits of the case and take any action agreeable to their judgment." Sec. 25 (c), (d) and (e).

In May and June 1964, the Grievance Committee of the Alabama State Bar preferred charges against the plaintiff Sullivan, alleging violations of specified rules theretofore formulated by the Board and approved by the Supreme Court. Additional charges against Sullivan were preferred in 1966. On March 3, 1967, the Board of Commissioners found Sullivan guilty of certain of the charges and ordered his disbarment. Sullivan filed a petition in the Supreme Court of Alabama for certiorari and for a stay of execution of the judgment of disbarment. On March 13, 1967, the Supreme Court of Alabama entered the following order:

"Petitioner, having filed in this Court on March 7, 1967, a Petition for Certiorari directed to the Board of Commissioners of the Alabama State Bar to forward to this Court a full and complete record of proceedings in this case and to review, revise, reverse and hold for naught that certain judgment of disbarment rendered by the Board of Commissioners of the Alabama State Bar on, to-wit: the 3rd day of March, 1967, and Petitioner having filed a petition for stay of the execution of said judgment of disbarment pending this Court's determination of the matters to be presented, and said petition being duly submitted and examined and understood by the Court, it is ordered that the petition for stay be and the same is hereby denied;

"Provided, however, that upon the Petitioner filing in this Court within ten days from this date a sworn affidavit stating that pending the disposition of this matter in this Court he will not, directly or indirectly, either by himself or in association with another, act or appear as solicitor for complainant or respondent in any divorce proceedings now pending or hereafter filed, a stay of the order of disbarment of the Board of Commissioners of the Alabama State Bar will issue.

"Done this 13th day of March, 1967.

"Livingston, C. J., Lawson, Goodwyn, Merrill & Harwood, J. J., concur.

"Simpson and Coleman, J. J. would grant a stay of execution of the judgment of disbarment, pending review of the same, without condition as has heretofore been done in disbarment proceedings."

Sullivan's petition for reconsideration was ordered stricken. He unsuccessfully applied to the Honorable Hugo L. Black, Associate Justice of the Supreme Court of the United States, for a stay of execution. Thereafter, he filed the prescribed affidavit, and the Supreme Court of Alabama, on April 3, 1967, issued the following order:

"WHEREAS, on March 13, 1967, this Court did enter an order denying the stay of execution of the judgment of disbarment entered by the Board of Commissioners on March 3, 1967, and "WHEREAS, the order of March 13, 1967, did provide that a stay of execution would be granted provided the petitioner would not directly or indirectly either himself or in association with another act or appear as solicitor for complainant or respondent in any divorce proceeding now pending or hereafter filed, and

"WHEREAS, petitioner did, on March 28, 1967, file an affidavit called for in the Court's order of March 13, 1967, and through his attorney has petitioned the Court to treat such affidavit as being timely filed in view of the fact that petitioner sought relief in the Supreme Court of the United States by petition, and said petition being denied by Mr. Justice Hugo L. Black on March 24, 1967,

"NOW, THEREFORE, IT IS ORDERED that the judgment of disbarment entered by the Board of Bar Commissioners on March 3, 1967, be and the same is hereby stayed pending the disposition of the PETITION FOR REVIEW in this Court."

The petition for review of Sullivan's disbarment was argued and submitted to the Supreme Court of Alabama in May 1968, and on January 30, 1969 that Court rendered its opinion and decision affirming the judgment of disbarment.

On November 15, 1968, before the disposition of the petition for review, the President of the Board of Commissioners and the General Counsel of the Alabama State Bar filed in the Supreme Court of Alabama a petition for an order to show cause why Sullivan should not be held in contempt of court for participating in certain named divorce actions. On December 11, 1968, an order to show cause issued from the Supreme Court of Alabama and the date set for hearing was Wednesday, January 8, 1969.

On January 3, 1969, Sullivan filed his complaint in this Court praying for a restraining order, interlocutory injunction and permanent injunction restraining further prosecution or consideration of the contempt proceeding against Sullivan. On the same day, the district judge denied Sullivan's motion for a temporary restraining order. The contempt proceeding is now set for hearing before the Supreme Court of Alabama on February 24, 1969.

Sullivan injects federal constitutional questions by seeking an injunction restraining the enforcement of Sections 22 and 24 of Title 46 of the Code of Alabama. He claims that Section 22 violates the equal protection clause of the Fourteenth Amendment because of malapportionment of the Board of Commissioners arising from the wide disparity in population and in numbers of lawyers in the various State judicial circuits. He attacks Section 24 as denying the equal protection of the laws, because he and other lawyers are required to travel great distances and markedly different distances from their respective homes or places of practice in order to vote for a president and a first vice-president of the State Bar. Sullivan had made these same attacks as a part of his defense in the disbarment proceeding, and in affirming the judgment of disbarment the Supreme Court of Alabama ruled adversely to Sullivan on these questions.

In addition to individual relief as a defense to the contempt proceeding, Sullivan appears in this Court individually and as a champion of the entire State Bar—"on behalf of himself and all other members in good standing of the Alabama State Bar"—and prays: "That in the event the constitutional deficiencies inherent in the Alabama State Bar as now constituted are not remedied forthwith that the Court proceed to correct the deficiencies."

The foregoing statement of this case has necessarily been disproportionately long, and its decision can be relatively brief.

28 U.S.C. § 2283 provides:

"A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to

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