in the supreme court of the united states€¦ · richard w. painter, michael stokes paulsen,...

No. 13-1104 ================================================================

In The

Supreme Court of the United States --------------------------------- ---------------------------------

PHILLIP D. KLINE,

Petitioner, v.

KANSAS DISCIPLINARY ADMINISTRATOR,

Respondent.

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On Petition For A Writ Of Certiorari To The Supreme Court Of Kansas

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MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE, IN SUPPORT OF

PETITIONER AND BRIEF AMICUS CURIAE OF NATIONAL LAWYERS’ ASSOCIATION,

MICHAEL S. ARIENS, WILLIAM W. BASSETT, ROBERT A. DESTRO, CARL H. ESBECK, EDWARD

MCGLYNN GAFFNEY, ROBERT P. GEORGE, RICHARD W. PAINTER, MICHAEL STOKES

PAULSEN, RONALD D. ROTUNDA, THOMAS L. SHAFFER, ROY D. SIMON, RICHARD T. STITH, SCOTT THOMPSON, AND DAVID VANDERCOY

IN SUPPORT OF PETITIONER

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EDWARD MCGLYNN GAFFNEY, JR. Counsel of Record VALPARAISO UNIVERSITY SCHOOL OF LAW 656 S. Greenwich Street Valparaiso, IN 46383 219.465.7860 [email protected]

Counsel for Amici Curiae

================================================================ COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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IN THE SUPREME COURT OF THE UNITED STATES

NO. 13-1104, KLINE V. KANSAS DISCIPLINARY ADMINISTRATOR

MOTION FOR LEAVE TO FILE A BRIEF AMICUS CURIAE

Amici – the National Lawyers’ Association and several professors of law identified below – respect-fully move this Court for leave to file the accompany-ing brief amicus curiae in support of granting the writ in this case. Amici provided the parties ten days’ written notice of intent to file a brief amicus curiae, and sought consent of their Counsel of Record to do so. Petitioner granted consent, but re-spondent did not, necessitating this motion.

The decision below cannot be reconciled with those of many other state tribunals on the following federal question: whether the provisions in Codes of Professional Responsibility known as “catch-all” pro-visions must be cabined within a narrowing construc-tion, or risk violating the requirement of adequate notice in the Fourteenth Amendment Due Process Clause. Pet. App. 29-40. This federal question is now in a state of open and direct conflict requiring the oversight of this Court. Pet. 15-31.

The failure of the court below to cite, discuss, or follow this Court’s teaching in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), constitutes a separate ground for granting the writ. Pet. 31-38. Amici add several of this Court’s precedents that must inform

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the law governing lawyers, none of which was cited or discussed in the opinion of the court below.

Amici also discuss the third reason offered by petitioner in support of granting the writ: whether the “fervid belief ” or commitment of an advocate to an unpopular cause may ever be taken to be an “ag-gravating circumstance” in a bar disciplinary hear-ing. Pet. 38-40.

Amici focus on the second and third point in the petition and offer this Court an analysis of its free speech jurisprudence that is relevant to instances in which a question about professional responsibility is deeply connected with constitutional meaning and value. We do so because the lower court failed to do so in its lengthy opinion. Pet. App. 1-211.

Respectfully submitted,



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TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE BRIEF AMI-CUS CURIAE ...................................................... 1

TABLE OF AUTHORITIES ................................... ii

BRIEF AMICUS CURIAE OF NATIONAL LAW-YERS’ ASSOCIATION ET AL. ........................... 1

STATEMENT OF INTERESTS ............................. 1

STATEMENT OF THE CASE ............................... 3

SUMMARY OF ARGUMENT ................................ 6

REASONS FOR GRANTING THE WRIT ............. 11

1. Conflict among state courts ....................... 11

2. The peril of ignoring Gentile ..................... 11

3. Overlooked precedents .............................. 14

4. Viewpoint discrimination .......................... 16

5. Representation of unpopular causes or disfavored clients ....................................... 18

CONCLUSION ....................................................... 23

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TABLE OF AUTHORITIES

Page

CASES

Alpha Med. Clinic v. Anderson, 128 P.3d 364 (Kan. 2006) ............................................................ 3, 4

Bradwell v. Illinois, 83 U.S. 130 (1872) ..................... 22

Brady v. Maryland, 373 U.S. 83 (1963) ..................... 15

Bridges v. California, 314 U.S. 252 (1941) ................ 13

Brown v. Bd. of Educ., 347 U.S. 483 (1964) ............... 21

Colegrove v. Green, 328 U.S. 549 (1946) ...................... 9

Connick v. Myers, 461 U.S. 138 (1983) ...................... 15

Connick v. Thompson, 563 U.S. ___, 131 S.Ct. 1350 (2011) .............................................................. 15

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) ............................................................... passim

Gideon v. Wainwright, 372 U.S. 355 (1963) ............... 21

Gonzales v. Carhart, 550 U.S. 124 (2007) .................... 6

Imbler v. Pachtman, 424 U.S. 409 (1976) .................. 15

In re Hinds, 90 N.J. 604, 499 A.2d 483 (1982) .......... 13

In re Kline, 298 Kan. 96, 311 P.3d 321 (2013) ............. 8

Landmark Communications, Inc. v. Virginia, 435 U.S. 839 (1978) ................................................. 12

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) ................................................................ 15

New York Times v. Sullivan, 376 U.S. 254 (1964) ................................................................. 14, 15

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TABLE OF AUTHORITIES – Continued

Page

Planned Parenthood of SE Pennsylvania v. Casey, 505 U.S. 833 (1992) ....................................... 6

Plessy v. Ferguson, 163 U.S. 537 (1896) .................... 21

Powell v. Alabama, 287 U.S. 45 (1932) ...................... 21

Rex v. Weems (Mass. Superior Ct. 1770), 3 Legal Papers of John Adams (L. Wroth & H. Zobel eds. 1965) ................................................................. 20

Roe v. Wade, 410 U.S. 113 (1973) ................................. 6

Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003) ......................................... 16

Scheidler v. National Organization for Women, Inc. (“Scheidler III”), 546 U.S. 1001 (2006) ........... 16

Stenberg v. Carhart, 530 U.S. 914 (2000) .................... 6

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) .......... 22

Wood v. Georgia, 370 U.S. 375 (1962) ........................ 12

Writs of Assistance case (1760) .................................. 20

CONSTITUTIONAL PROVISIONS

U.S. Const., amend. I ............................. 2, 8, 12, 14, 15

U.S. Const., amend. XIV .......................................... 2, 8

U.S. Const., art. I, § 2 ................................................... 9

STATUTES

42 U.S.C. §1983 .......................................................... 15

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Page

RULES

Supreme Ct. R. 10....................................................... 10

Supreme Ct. R. 37......................................................... 1

OTHER AUTHORITIES

Amy Leigh Campbell, Raising the Bar: Ruth Bader Ginsburg and the ACLU Women’s Rights Project (2004) ............................................... 22

Felix Frankfurter, The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen (1927; 1971) ............................................... 21

Lon Fuller and John Randall, “Report of the Joint Conference on Professional Responsi-bility of the Association of American Law Schools and American Bar Association,” 44 ABA J. 1159 (1959) ........................................... 20, 22

Whitney Harris, Tyranny on Trial: The Trial of the Major German War Criminals at the End of the World War II at Nuremberg Germany, 1945-1946 (1999) ..................................................... 21

Kevin Heller, The Nuremberg Military Tribu-nals and the Origins of International Crimi-nal Law (2011) ........................................................ 21

Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citi-zenship (1999) ......................................................... 22

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Page

Eric Lichtbau and Scott Shane, “Report Faults 2 Authors of Bush Terror Memos,” New York Times, Feb. 19, 2010 ............................................... 18

Bernard Lonergan, Insight: A Study of Human Understanding (1957) ............................................. 14

Alpheus Thomas Mason, Brandeis: A Free Man’s Life (1956) ..................................................... 21

J.M. McKay, “A Decalogue for the Administra-tion of Justice in the City Gate,” Vetus Testamentum, 311-325 (1971) ................................. 14

John Noonan, Bribes (1985) ....................................... 14

John Noonan and Richard Painter, Personal and Professional Responsibilities of the Law-yer 476-495 (2d ed. 2001) ........................................ 20

Mark Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961 (1994) ..................................................... 22

Melvin Urofsky, Louis D. Brandeis and the Progressive Tradition (1981) ................................... 21

Urofsky, Louis D. Brandeis: A Life (2009) ................. 21

C. Vann Woodward, The Strange Career of Jim Crow (2d ed. 1957) .................................................. 21

Mark Yudof, When Government Speaks: Poli-tics, Law, and Government Expression in America (1983) ........................................................ 16

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NO. 13-1104, KLINE V. KANSAS DISCIPLINARY ADMINISTRATOR

BRIEF AMICUS CURIAE OF NATIONAL LAWYERS’ ASSOCIATION ET AL.

STATEMENT OF INTERESTS1

The National Lawyers Association, Inc. (NLA) is a national bar organization incorporated as a not-for-profit under the laws of the State of Missouri. The NLA is dedicated to the principle that the Founding Fathers of the government of the United States of America established a governmental structure for the Nation consisting of the Declaration of Independence and the Constitution; that the Constitution is to be interpreted in light of the principles and transcendent truths set forth in the Declaration of Independence; and that the legal community has a special responsi-bility to preserve and protect that structure. The NLA, while not taking a position on the veracity of the underlying facts of the present case, is concerned that this decision sets a dangerous precedent opening the door to potential abuses that would infringe the constitutional protections afforded to the citizens of

1 This brief is submitted in accordance with Rule 37 of this Court. Counsel of record for both parties received notice at least 10 days prior to the due date of the intention of the Amici to file this brief. Counsel for petitioner granted consent. Counsel for respondent did not, necessitating this motion above. No counsel for any party authored this brief in whole or in part, and no person or entity, other than Amici, their members, or counsel, made a monetary contribution to the preparation or submission of this brief.

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this Nation under the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment.

Michael S. Ariens is Professor of Law and Di-rector of Faculty Scholarship at St. Mary’s Uni-versity School of Law in San Antonio, Texas.

William W. Bassett is Professor of Law Emeritus at the University of San Francisco.

Robert A. Destro is Professor of Law and the for-mer Dean of the Catholic University of America.

Carl H. Esbeck is the Isabelle Wade & Paul C. Lyda Professor of Law at the University of Mis-souri in Columbia, Missouri.

Edward McGlynn Gaffney is Professor of law and former dean at Valparaiso University School of Law.

Robert P. George is the McCormick Professor of Jurisprudence and Director of the James Madi-son Program at Princeton University.

Richard W. Painter is the Walter Richey Profes-sor of Law at the University of Minnesota.

Michael Stokes Paulsen is Distinguished Univer-sity Chair and Professor of Law at University of St. Thomas School of Law.

Ronald D. Rotundais the Doy & Dee Henley Chair and Distinguished Professor of Jurispru-denceat the Dale E. Fowler School of Lawin Chapman University.

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Thomas L. Shaffer is Professor of Law emeritus and former Dean of the Notre Dame Law School.

Roy D. Simon is the Howard Lichtenstein Dis-tinguished Professor of Legal Ethics emeritus at Hofstra University School of Law.

Richard T. Stith III is Professor of Law at Val-paraiso University School of Law.

Scott Thompson is Professor of Legal Ethics at Liberty University School of Law.

David Vandercoy is Professor of Law and Director of Clinical and Skills Programs at Valparaiso University School of Law.

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STATEMENT OF THE CASE

Petitioner is the former Attorney General of Kansas (2003-2007), and District Attorney of Johnson County (2007-2010).2

In Alpha Med. Clinic v. Anderson, 128 P.3d 364 (Kan. 2006), two abortion clinics brought an original mandamus action in the Kansas Supreme Court, seek-ing to enjoin petitioner from any further investigation of facts relating to the law of Kansas on late-term

2 Amici are unaware of any prior instance of the suspension of a former Attorney General and District Attorney from the practice of law for speech-acts articulated or undertaken to carry out public responsibilities, including the investigation of an alleged crime.

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abortions and on reporting requirements relating to children under 16. The court ruled both that the executive branch has power to investigate and prose-cute alleged crimes, and that the court could issue protective orders to guard the privacy interests of the clinic’s clients.

During the course of the hearing in Alpha, peti-tioner sought the views of the court below on what he might attach to his brief as a sample of records he had discovered. The court did not offer any guidance, so petitioner attached to his brief records that had been sealed, which later became public. The court found that this violated the court’s order sealing the record, since petitioner knew the brief would ulti-mately be unsealed and the attachments would there-by become public. 128 P.3d at 381-382. The court acknowledged: “This is a highly unusual case, the first in memory when this court has required public briefs and oral argument on a sealed record.” Id. at 382. Although criticizing petitioner for doing this, Justice Beier said that “no prejudice has resulted from his conduct” and she declined to hold him in contempt. Id.

Seven years later, in the decision below, the court found that there was “prejudice” after all because Kline’s rationale for attaching the documents – to inform the public and dispel public concerns about the aims of his investigation – demonstrated a lack of respect for the court. Pet. 8-9, Pet. App. 65-67. In 2013 the same court ordered that petitioner “be indef-initely suspended from the practice of law in Kansas”

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and assessed the costs of the proceedings – hundreds of thousands of dollars – to the petitioner. Pet. App. 210.

The court dismissed many findings by the disci-plinary board, but found petitioner in violation of Kansas Rules on Professional Responsibility by filing sealed documents with a public brief, Pet. 7-9; by al-legedly making misleading or incorrect statements of law to a citizens’ grand jury, Pet. 9-10; by filing a motion to enforce a grand jury subpoena, when the grand jury allegedly didn’t want him to file the mo-tion or wanted to see it first, Pet. 11; by making a misstatement about the investigation in a “motion to clarify,” Pet. 11-12; by making misstatements about “three summaries” of abortion records, Pet. 13; and by finding that Kline failed to correct a misstatement to the disciplinary administrator about his records being under “lock and key.” Pet. 37.

The court below explained that it chose not to follow the direction of numerous other states that have decided to cabin in their jurisdictions the paral-lel “catch-all” provisions on which Kansas relied to impose discipline in this matter. Pet. 15-31.

The court determined that the “fervid belief ” of petitioner in his “cause” was an aggravating factor that required the penalty of indeterminate suspen-sion of his license to practice law. Pet. App. 197.

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SUMMARY OF ARGUMENT

Bar disciplinary committees have a noble task to perform – guarding the integrity of the legal profes-sion. Complaints about lawyers by the general public do not normally implicate constitutional values. Such complaints may be as mundane as failure to answer phone calls, or as easy to comply with as opening a separate bank account to avoid commingling of assets of lawyers and clients.

But occasionally lawyer discipline cases may im-plicate fundamental constitutional values. This is such a case. Its concern for the integrity of the legal profession is inescapably commingled with profoundly important constitutional questions. When does hu-man life begin? When may or must life be surrounded with legal protection? Or, on the other hand, when must the State refrain from regulating intimate per-sonal decisions about when or how many children a particular person or couple may reasonably have and take care of ?

This Court has taught that some aspects of the decision to end a pregnancy are beyond the power of the several states to regulate. Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of SE Pennsylvania v. Casey, 505 U.S. 833 (1992). The Court has also held that other aspects of abortion are within the power of the states to regulate, Gonzales v. Carhart, 550 U.S. 124 (2007), modifying Stenberg v. Carhart, 530 U.S. 914 (2000). Whatever one’s views on this contentious issue, the country and this Court are narrowly and deeply divided on it.

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Reflecting this political reality, petitioner ran for office as Attorney General in 2002, offering his views on this contentious issue as a major reason for the citizens of Kansas to vote for him. In particular, he promised the voters that he would take very seriously the dimensions of abortion that this Court has con-cluded are permissible. The people of Kansas did so in 2002 and the people of Kansas voted petitioner out of office in 2006.

Amici do not insist that this political result in which the voice of the people controls is as good as it ever gets in the rough and tumble of American poli-tics. Nor do we brush aside legitimate concerns about the mistakes of an over-zealous prosecutor. But more than the error of a prosecutor and his staff is at issue in this case.

This case offers the Court a rare opportunity to assist its brother and sisters who sit in the highest tribunals of the several states – “The Court of Ap-peals” in Maryland and New York and “The Supreme Court” in Kansas and the other 47 states – in the important duties of administering the admission of candidates of good character to the bar and of effec-tuating wisely the administration of bar discipline when that is necessary.

As this Court has clarified on numerous occa-sions, whenever a bar discipline case implicates con-stitutional concerns, the disciplinary committee and state supreme courts to which they report must take into account the restraints on their power imposed by

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the First Amendment Free Speech Clause and the fundamental requirements of adequate notice and an unbiased tribunal at the heart of the Fourteenth Amendment Due Process Clause.

At first glance this case might seem intimidating or otherwise unattractive. In each instance, though, when critical reflection challenges hasty impressions of the case, this case emerges as an apt vehicle for the sort of constitutional instruction that the Court should now provide the Nation.

First, the complexity of the record seems daunt-ing. True, the Appendix is heftier than most. The final hearing report of the Kansas Board for Discipline of Attorneys runs to 241 pages. Pet. App. 212-439. The opinion of the Kansas Supreme Court, also reported at In re Kline, 298 Kan. 96, 311 P.3d 321 (2013), reviewing the final report of the Board for Discipline of Attorneys, runs to 211 pages. Pet. App. 1-211. This Appendix may be no longer than an appendix in a complex corporate matter presented in the final rul-ings of the Securities and Exchange Commission, and an opinion of comparable length from the Court of Ap-peals. The analysis offered below, however, suggests that this Court need not worry that, by granting the writ in this case, it will be sucked into the unenviable and completely unnecessary role of becoming the Bar Disciplinary Court of the United States.

Second, a related concern arises from point one. If the Court grants the writ in this case, that doesn’t mean that it must conduct a de novo review of a

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lengthy record. On the contrary, the Court must accept the facts as the court below found them, and remind that court and all state courts engaged in supervision of attorney discipline that they, too, must heed the teaching of this Court on many issues of constitutional significance that this Court has taught repeatedly. The court below overlooked or at least never included any of the cases we explore below in its explanation of its deliberations in an admittedly troubling case of attorney discipline.

Third, a related concern arises from point two. The contentious nature of this case may also super-ficially suggest that this case screams out the warn-ing “political thicket” more loudly than Justice Frankfurter’s caution against the Court’s deciding a legislative redistricting case in Colegrove v. Green, 328 U.S. 549, 556 (1946). This Court understood the point of Justice Frankfurter’s concern. But both on that occasion and in numerous cases since then it has reflected critically and calmly about redistricting, which now appears to be an ineluctable dimension of the constitutional requirement of a decennial census. U.S. Const., art. I, § 2. Similarly, the Court need not fear that reiterating traditional American concerns about free speech concerns in this case will suck the Court into the world of local politics. On the contrary, the Court’s serene articulation of the free speech values may help restrain local bars from using lawyer discipline as a sword rather than a shield.

Fourth, a related concern arises from point three. The Court does not need to carve out new law in this

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case. In fact, if that were the only reason for the Court to reach its decision to decide, this case might not be a good vehicle for doing so. But that is not the only reason this Court reaches the decision to decide a case. It also does so when a lower court “has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals” or “has decided an important federal question in a way that conflicts with relevant decisions of this Court.” Rule 10, Rules of the Supreme Court.

Fifth, a related concern arises from point four. The Court has already addressed and settled many important considerations that a state supreme court must take into consideration as it goes about its task of administering the rules governing admission to the Bar and discipline of attorneys who fail to observe the rules of professional responsibility. The lower court did not cite or discuss, much less distinguish the leading decision of this Court that is apposite to this case, Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). Neither did it discuss any of this Court’s ju-risprudence on political free speech, which Amici discuss below.

Sixth, a practical conclusion arises from all the prior points (1 to 5) taken together. The Court should grant the writ in this case, set the case for oral argu-ment, and dispose of the case it summarily in a per curiam order restating plainly and clearly the federal constitutional principles a state supreme court must take into consideration whenever it assesses a claim

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that a lawyer may be disciplined for his “fervid be-lief,” Pet. App. 197, on matters of public concern as controversial as the permissible and impermissible regulation of abortion.

In short, it is now necessary for this Court to remind the Nation of many decisions of this Court that are pertinent, even exigently so, to halt the slide into government by the Bar Disciplinary Committee.

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REASONS FOR GRANTING THE WRIT

1. Conflict among state courts on vague “catch-all” rules that remain uncabined. The petition skill-fully demonstrates a glaring conflict among cases decided by state supreme courts about the minimal constitutional standards of free speech and due process in cases involving discipline of lawyers in the wake of Gentile, which the court below never cited or discussed. Pet. 15-31.

2. The peril of ignoring Gentile. The Court has not taken the opportunity to address the application of constitutional standards to the speech and conduct of lawyers since 1991. The growing conflict among state courts about the relevance of Gentile has now reached the point where this Court’s guidance is again required. The petition offers additional reasons for granting the writ. Pet. 31-40. Without repeating these points, Amici offer either a different perspective on these considerations or additional reasons for granting the writ.

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The court below suspended petitioner indefinitely without any showing – required under the clear teaching of the Court in Gentile – that petitioner’s speech “is substantially likely to materially prejudice a proceeding.”

As Justice Kennedy explained in Gentile, the drafters of the ABA Model Rules thought of this stan-dard as constitutionally required because it closely resembles other ways of expressing what the First Amendment requires as a minimum:

The drafters of Model Rule 3.6 apparently thought the substantial likelihood of mate-rial prejudice formulation approximated the clear and present danger test. See ABA An-notated Model Rules of Professional Conduct 243 (1984) (“formulation in Model Rule 3.6 incorporates a standard approximating clear and present danger by focusing on the like-lihood of injury and its substantiality”; . . . Geoffrey Hazard & William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 397 (1985) (“To use traditional terminology, the danger of prejudice to a proceeding must be both clear (material) and present (substantially likely)”)).

The Court has frequently thought in a similar way when it has offered guidance to determine whether a statement “poses a sufficiently serious and imminent threat to the fair administration of justice.” See, e.g., Landmark Communications, Inc. v. Virginia, 435 U.S. 839, 844 (1978); Wood v. Georgia, 370 U.S. 375 (1962);

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Bridges v. California, 314 U.S. 252, 273 (1941). So have state courts following the lead of this Court. See, e.g., In re Hinds, 90 N.J. 604, 622, 499 A.2d 483, 493 (1982) (substantial likelihood of material prejudice standard is a linguistic equivalent of clear and pre-sent danger). See also Pet. 34-37.

The Court should take this case in order to re-emphasize that the Gentile standard is not optional, as several courts seem to believe, but is required by the Constitution. In so doing, the Court need not invent a new test or standard. The same standard the Court announced in Gentile for evaluating extrajudi-cial utterances by lawyers also applies to the speech and conduct of petitioner in this case. When an At-torney General or a District Attorney seeks to inves-tigate the existence of a potential crime and, if there is probable cause to believe that a crime occurred, to prosecute, the question that should loom large is whether the lawyer’s speech or conduct is standard announced in Gentile: “substantially likely to materi-ally prejudice a proceeding”?

The court below effectively answered the ques-tion in the negative. Gentile requires the opposite. The Court now should insist both that this question must be faced in cases such as this one, and that the normal answer to what is meant by such “prejudice” is the classic contradiction of justice through outright financial inducements or bribes, or through more subtle means of “persuasion” that pushes the enve-lope of fair administration of justice.

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From the ancient world (see Exodus 23:1-3, 6-8; Deuteronomy 16:18-20; 17:8-13; J.M. McKay, “A Dec-alogue for the Administration of Justice in the City Gate,” Vetus Testamentum, 311-325 (1971)) to the present, the classical meaning of “prejudice” has re-ferred to the corruption of justice that occurs whenev-er pre-judgment or prejudice substitutes for attentive, intelligent, and reasonable judgment based on relia-ble evidence. See, e.g., Bernard Lonergan, Insight: A Study of Human Understanding (1957). In its most overt form, such corruption is itself a crime: bribery, the attempt to induce or to support the general or group bias of a fact-finder. See, e.g., John Noonan, Bribes (1985).

3. Overlooked precedents. The court below did not even cite Gentile in the portion of its opinion squarely controlled by that precedent. Pet. App. 77-83. Neither did the court cite or discuss any of the follow-ing cases, each of which may be distinguished on the ground that the case does not involve bar discipline, but each of which shifted the law dramatically in the direction of free speech, and all of which must be heeded in any decision by any branch of government that deals with political speech, which is at the very core of the First Amendment.

In New York Times v. Sullivan, 376 U.S. 254 (1964), this Court found a constitutional dimension in the tort of libel, and ruled that public officials bringing libel actions against political opponents may be held to a higher standard of proof than other plaintiffs injured by a libel. The Court made this momentous

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shift not to encourage lies about political servants, but to surround the political process with greater protection by defining the “core meaning of the First Amendment” is that “debate on public issues should be uninhibited, robust, and wide-open.” Id. at 269-270 (1964).

In Imbler v. Pachtman, 424 U.S. 409 (1976) this Court conferred absolute immunity from damages on prosecutors, even if they knowingly use false testi-mony or withhold exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), or if prosecu-torial misconduct results in a wrongful conviction. See also Connick v. Thompson, 563 U.S. ___, 131 S.Ct. 1350 (2011); and Connick v. Myers, 461 U.S. 138 (1983). On numerous occasions this Court has con-ferred absolute immunity from liability for damages under the civil rights statute, 42 U.S.C. §1983, upon state prosecuting attorneys acting within the scope of their authority and duty to investigate and to prose-cute, where necessary, an alleged crime.

In NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) this Court mandated exacting standards for the protection of First Amendment rights of boy-cotters who used threatening language, but did not engage in violent activity in a boycott of merchants intended to secure compliance by both civic and bus-iness leaders with demands for equality and racial justice and which was supported by speeches and nonviolent picketing boycott activity. The right to associate does not lose all constitutional protection merely because some members of the group may have

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participated in conduct or advocated doctrines that are not protected.

In Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003), this Court held that abor-tion protesters could not be liable under the federal racketeering law (RICO) since they did not acquire any of the property of the clinics they had picketed. In Scheidler III, 546 U.S. 1001 (2006) the Court again ruled that abortion protest does not implicate the Hobbs Act, since Congress did not intend to create in the Hobbs Act a freestanding physical violence offense.

4. Viewpoint discrimination. The opinion of the court below suggests that the court either imposed or increased a penalty on petitioner for his political viewpoint. Pet. 38-40. The Kansas court let the cat out of the bag when it acknowledged that it was acting as it did because it found that petitioner held and acted upon a “fervid belief,” Pet. App. 197, re-garding a political issue that remains one of the most controversial issues in American public life.

Reasoning of this sort is precisely why the Court should put this case on its docket. Americans on all spectrums of political thought can or should agree that government officials – chosen by the People to serve the common good of all, with divided and separated powers in our republican form of government – may promote their own ideas in the respective branches of the United States and of the several states. See Mark Yudof, When Government Speaks: Politics, Law, and Government Expression in America (1983).

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By the same token, Americans on all spectrums of political thought can or should agree that no branch of government (legislative, executive, or ju-dicial) at any level (federal, state, or local) may single out one political perspective over a competing view, either to confer a benefit on a person holding that view, or to impose a penalty on its expression.

Holding both of these perspectives in healthy tension enables our society to experience the demo-cratic dimension of our republic. The People choose representatives, who must be free to set policies that can have practical effect. The normal limits for the exercise of such responsibility by representatives are the terms specified in federal and state constitutions.

Government may have its own watchdogs to guard the integrity of the lawyers who work in the public sector. Congressional committees routinely exercise oversight of executive branch officials. In rare instances corruption may lead to the extra-ordinary remedy of impeachment and removal of a federal official from office.

Each federal agency typically has an Inspector General. The U.S. Department of Justice maintains an independent investigative Office of Professional Responsibility to evaluate the integrity of its attor-neys.3 And the constitutionally secured institution of

3 David Margolis – a senior prosecutor in the Criminal Di-vision of the Department of Justice – was placed in charge of the final review of the legal work of Jay Bybee and John Yoo on the

(Continued on following page)

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a free press may also engage in investigative journal-ism and disclose what it discovers.

This allocation of political freedom and responsi-bilities has not always worked well. Even so, this case affords the Court an opportunity to raise an alarm if the republic is beginning to drift away from elected terms in office towards government by bar discipli-nary committees. If a State Bar decides to use its considerable authority to take on the task of political watchdog, then it must evaluate the quality of the performance of an elected official such as the peti-tioner with some respect for the obvious reality that some government attorneys are deliberately selected and appointed precisely because they are committed, perhaps “fervidly,” to implementing policies they support.

5. Representation of unpopular causes or dis-favored clients. The history of the legal profession in America confirms the wisdom of the rule in Gentile and the tissue of cases discussed above, but ignored by the Court below. If left uncorrected, the decision

“Torture Memos” prepared in the Office of Legal Counsel. Margolis concluded that while the memos reflected “poor judgment,” they did not rise to the level of a violation of professional standards such as failure in the duty of candor. The Office of Professional Responsibility in the DOJ had concluded that the legal advice given by Bybee and Yoo warranted the sterner conclusion and thus, possible disbarment or suspension. Margolis overruled that judgment, and Attorney General Holder accepted Margolis’s conclusion. See Eric Lichtbau and Scott Shane, “Report Faults 2 Authors of Bush Terror Memos,” New York Times, Feb. 19, 2010.

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below could have a profoundly regressive effect in the long term on brave lawyers who have spoken out boldly on behalf of their clients throughout the na-tion’s history and who have had a great impact in shaping or changing some important dimension of the constitutive meaning of our society.

The genius of the common law is that it acknowl-edges that each situation of lawyering is unique. Hence Amici do not suggest any specific comparison between petitioner and various other lawyers in American history. Instead, we simply call to the Court’s attention a risk of leaving this case unre-viewed: subsequent lawyers may be exposed to need-less burdens of defending themselves if their speech and actions were subjected to the sort of review that occurred in the decision below.

We offer several examples of lawyering that were deemed controversial when various lawyers under-took representation of unpopular causes or disfavored clients. Now nearly all would regard their efforts as having contributed truly significant dimensions to our legal culture and constitutional order. As in the situation below, some of the stories in the historical cases we summon to memory are not picture perfect. For the very reason that few of us are perfect, the standard for constitutional evaluation cannot be perfection, but must be the one announced by this Court in Gentile and discussed in point 3 above: is a lawyer’s speech or conduct “substantially likely to materially prejudice a proceeding”?

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By assisting James Otis in the Writs of Assis-tance case (1760), John Adams laid the groundwork for the Fourth Amendment right of the People to security in their dwellings. By claiming a duty to defend Captain Preston and other British soldiers accused of unlawfully killing five American colonists in Boston on March 5, 1770, Adams laid the ground-work for the rights to trial by jury (rather than by a lynch mob) and to effective assistance of counsel secured in the Sixth Amendment. See Adams’s sum-mation in Rex v. Weems (Mass. Superior Ct. 1770), 3 Legal Papers of John Adams (L. Wroth & H. Zobel eds. 1965), http://www.john-adams-heritage.com/ summation-boston-massacre-trial/; and see John Noonan and Richard Painter, Personal and Professional Re-sponsibilities of the Lawyer 476-495 (2d ed. 2001).

By committing a very large portion of his time to zealous pro bono advocacy on behalf of many unpopu-lar clients, Louis Dembitz Brandeis laid the ground-work for “making legal services available to all who need them.” See, e.g., Lon Fuller and John Randall, “Report of the Joint Conference on Professional Re-sponsibility of the Association of American Law Schools and American Bar Association,” 44 ABA J. 1159 (1959) (“If there is any fundamental proposition of government on which all would agree, it is that one of the highest goals of society must be to achieve and maintain equality before the law. Yet this ideal remains an empty form of words unless the legal profession is ready to provide adequate legal repre-sentation for those unable to pay the usual fees.”);

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see Powell v. Alabama, 287 U.S. 45 (1932); Gideon v. Wainwright, 372 U.S. 355 (1963); Alpheus Thomas Mason, Brandeis: A Free Man’s Life (1956); Melvin Urofsky, Louis D. Brandeis and the Progressive Tradition (1981); Urofsky, Louis D. Brandeis: A Life (2009).

By supporting two Italian immigrants – Nicola Sacco and Bartolomeo Vanzetti – who were accused of homicide in Boston, Professor Felix Frankfurter chal-lenged the overt nativist prejudice against “outsiders” that prevailed at the time. See Felix Frankfurter, The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen (1927; 1971).

As Chief Prosecutor at the Nuremberg Inter-national Military Tribunal, Robert H. Jackson co-ordinated the American legal team that amassed enormous proof of the last century’s most deplorable conspiracy to commit mass murder, thereby contrib-uting to a body of international law on universal hu-man rights and international criminal law. See, e.g., Whitney Harris, Tyranny on Trial: The Trial of the Major German War Criminals at the End of the World War II at Nuremberg Germany, 1945-1946 (1999); Kevin Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (2011).

As Director of the NAACP “Inc. Fund,” Thurgood Marshall coordinated a litigation strategy that led to the dismantling of Jim Crow. See, e.g., C. Vann Woodward, The Strange Career of Jim Crow (2d ed. 1957); contrast Plessy v. Ferguson, 163 U.S. 537 (1896) with Brown v. Bd. of Educ., 347 U.S. 483

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(1964); and see Mark Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961 (1994).

As director of the ACLU Women’s Rights Project, Professor Ruth Bader Ginsburg coordinated a litiga-tion strategy that led to the emergence of a body of equal protection cases establishing the lawlessness of centuries of official gender-based discrimination. See, e.g., Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (1999); contrast Bradwell v. Illinois, 83 U.S. 130 (1872), with Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); and see Amy Leigh Campbell, Raising the Bar: Ruth Bader Ginsburg and the ACLU Women’s Rights Project (2004).

Most of these instances of legal advocacy of con-troversial causes were unpopular at the time of the advocacy, even among leaders of the Bar and learned academics. In hindsight we now look to the work of these lawyers as splendid examples of courage and wisdom. See, e.g., Fuller and Randall, “Report of AALS and ABA,” supra, 44 ABA J. 1159 (1959) (“One of the highest services the lawyer can render to so-ciety is to appear in court on behalf of clients whose cause are in disfavor with the general public.”)

Among the examples noted above, all but John Adams served later on this Court. None of these generous and skillful advocates did anything that can rightly be understood to be “prejudicial to the administration of justice.” Hundreds of lawyers like

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those named above are unnoticed and unsung heroes who take enough risks in advancing the causes of unpopular clients as it is, without adding needless disciplinary proceedings raised years after the speech and conduct in question.

Bar disciplinary committees and the state su-preme courts to which they report may maintain rigorous compliance with ethical standards under the balance struck by this Court in Gentile, and in the tissue of cases explored in section 3 above. This Court should reaffirm the principles established in that case, lest courageous lawyers be forced into dubious battle with State agencies and courts that openly dis-regard Gentile and refuse to accept this Court’s guid-ance on free speech and due process rights of lawyers.

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CONCLUSION

For the reasons stated above and in the Petition, the Court should grant the writ.

Respectfully submitted,



in the supreme court of the united states€¦ · richard w. painter, michael stokes paulsen,...

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