BOUIE v. CITY OF COLUMBIA, 378 U.S. 347 (1964)

378 U.S. 347

BOUIE ET AL. v. CITY OF COLUMBIA.
CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA

MR. JUSTICE BRENNAN delivered the opinion of the Court.

His suspension was decreed by the State Supreme Court over objections based upon the Due Process and Equal Protection Clauses of the Fourteenth Amendment

Question presented under the Equal Protection Clause, and under the Due Process Clause.

Petitioner claims that he was denied due process of law because his suspension were based on no evidence to support the charge.

It must be a fortiori so where the construction unexpectedly broadens a statute which on its face had been definite and precise.

Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one "that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action," or "that aggravates a crime, or makes it greater than it was, when committed." Calder v. Bull, 3 Dall. 386, 390. 4 If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the [378 U.S. 347, 354]   same result by judicial construction. Cf. Smith v. Cahoon, 283 U.S. 553, 565 .

The basic due process concept involved is the same as that which the Court has often applied in holding that an unforeseeable and unsupported state-court decision on a question of state procedure does not constitute an adequate ground to preclude this Court's review of a federal question. See, e. g., Wright v. Georgia, 373 U.S. 284, 291 ; N. A. A. C. P. v. Alabama, 357 U.S. 449, 456 -458; Barr v. City of Columbia, ante, p. 146.

When a state court overrules a consistent line of procedural decisions with the retroactive effect of denying a litigant a hearing in a pending case, it thereby deprives him of due process of law "in its primary sense of an opportunity to be heard and to defend [his] substantive right." Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 678 .

"If the result above stated were attained by an exercise of the State's legislative power, the transgression of the due process clause of the Fourteenth Amendment would be obvious," and "The violation is none the less clear when that result is accomplished by the state judiciary in the course of construing an otherwise valid . . . state statute." Id., at 679-680.

We think it clear that the Supreme Court, in applying its new construction of the statute to affirm these convictions, has deprived petitioners of rights guaranteed to them by the Due Process Clause.

It follows that they have been deprived of liberty and property without due process of law in contravention of the Fourteenth Amendment.

 [ Footnote 4 ] Thus, it has been said that "No one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a law at the time." Kring v. Missouri, 107 U.S. 221, 235 . See Fletcher v. Peck. 6 Cranch 87, 138; Cummings v. Missouri, 4 Wall. 277, 325-326.

[ Footnote 9 ] See Freund, 4 Vand. L. Rev., supra, at 540: "In applying the rule against vagueness or overbroadness something . . . should depend on the moral quality of the conduct. In order not to chill conduct within the protection of the Constitution and having a genuine social utility, it may be necessary to throw the mantle of protection beyond the constitutional periphery, where the statute does not make the boundary clear."

MR. JUSTICE BLACK, with whom MR. JUSTICE HARLAN and MR. JUSTICE WHITE join, dissenting.

Petitioners then appealed to the Supreme Court , which likewise affirmed over petitioners' objections that by convicting them the State was denying them due process of law and equal protection of the laws as guaranteed by the Fourteenth Amendment. 239 S. C. 570, 124 S. E. 2d 332. This [378 U.S. 347, 365]   Court granted certiorari to consider these questions. 374 U.S. 805 .

Petitioners also contend that they were denied due process of law because their conviction under the trespass statute was based on no evidence to support the charge, cf. Thompson v. City of Louisville, 362 U.S. 199 , [378 U.S. 347, 366 

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ABOUT JURIS DOCTOR -"JD"- IN NEW YORK]

SUPREME COURT OF NEW YORK 

COURT OF APPEALS

IN THE MATTER OF ROBERT T. ROWE

A SUSPENDED ATTORNEY

GRIEVANCE COMMITTEE FOR THE SECOND AND ELEVENTH JUDICIAL DISTRICTS

                                      Respondent,

ROBERT T. ROWE

                                       Appellant.

80 N.Y.2d 336, 604 N.E.2d 728, 590 N.Y.S.2d 179 (1992).
November 18, 1992

2 No. 237 - Decided November 18, 1992

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William M. Brooks, for Appellant.
Mark F. Dewan, for Respondent.

SIMONS, J., ACTING CHIEF JUDGE:

Respondent, an attorney licensed to practice law in this State since 1956, has been found guilty of eight charges of misconduct and disbarred. He raises two issues meriting discussion on this appeal. First, he claims that he cannot be found unfit to practice law because of acts committed while he was mentally ill and, second, he contends that the court cannot discipline him for publishing a law-related article during his suspension from practice. We conclude that the court properly considered respondent's conduct while he was ill when determining fitness but that its imposition of discipline for publication of the article interfered with respondent's constitutional right to free speech.                                    I

In 1978, respondent killed his wife and three children by beating them about the head with a baseball bat and was charged with four counts of second degree murder. A court found him not guilty by reason of mental disease or defect and ordered him placed in a psychiatric hospital. In 1980, respondent was discharged from the Creedmoor Psychiatric Center, and in 1988, he was discharged from mandated out-patient psychiatric care.

Following his acquittal respondent was suspended from the practice of law because of his mental disability. His subsequent applications for reinstatement were unsuccessful but in 1989, we reversed an Appellate Division order denying reinstatement and remitted the matter for a hearing to determine whether respondent's disability had been removed and whether, based on the record, he was fit to practice law (Matter of Rowe, 73 NY2d 336).

On remittal, Petitioner Grievance Committee for the Second and Eleventh Judicial Districts filed eight charges of misconduct against respondent and a Special Referee, appointed by the Appellate Division, found respondent guilty of all charges after a hearing. The court confirmed the Referee's report, rejected respondent's application for reinstatement and disbarred him. This appeal followed.                           II

The first four charges of misconduct relate to the four killings and allege respondent violated DR 1-102(A)(6) (now DR 1- 102[A][7]), which prohibits a lawyer from engaging in "conduct that adversely reflects on [the lawyer's] fitness to practice law." Respondent contends that he should not be disciplined for violating this rule because his conduct was not criminally culpable.

The Code of Professional Responsibility, promulgated by the American and New York State Bar Associations and implemented by the Rules of the Appellate Divisions, counsels that the continued existence of a free and democratic society depends on a concept of justice based upon the rule of law. Lawyers play a critical role in sustaining the rule of law and thus it is necessary that the legal profession maintain its unique ability to do so by earning the respect and confidence of society (Code of Professional Responsibility, Preamble and Preliminary Statement, Judiciary Law, Appendix). To this end, the courts are charged with the responsibility of insisting that lawyers exercise the highest standards of ethical conduct and insuring that only those fit to practice law are admitted to the Bar. Conduct that tends to reflect adversely on the legal profession as a whole and to undermine public confidence in it warrants disciplinary action (see, Matter of Holtzman, 78 NY2d 184, 191, cert denied ___US___, 112 S Ct 648; Matter of Nixon, 53 AD2d 178, 181-182; cf. Matter of Mitchell, 40 NY2d 153, 156).

Respondent contends that though he has committed four homicides he was not mentally responsible for his acts and therefore those acts should not be considered in judging his fitness to be reinstated to the Bar. His argument fails to recognize the distinction between conduct that is criminal and conduct that disqualifies an attorney from entitlement to practice law. That respondent was not criminally culpable for the four killings is not controlling (see, Matter of Samuels, 22 AD2d 564, 567, cert denied 383 US 954). A disciplinary proceeding is concerned with fitness to practice law, not punishment. Its primary concern is the protection of the public in its reliance on the integrity and responsibility of the legal profession (Matter of Levy, 37 NY2d 279, 282; Matter of Kahn, 38 AD2d 115, 124, affirmed 31 NY2d 752). Thus, the inquiry is not directed to the attorney's subjective mental processes, but to the objective and qualitative nature of the conduct, for it is the acts themselves which the public sees and which guide its perception of the Bar (see, Matter of Gould, 4 AD2d 174, 175, lv denied 3 NY2d 708; see generally, Note, Disbarment: Non- professional Conduct Demonstrating Unfitness to Practice, 43 Cornell LQ 489; 6 NY Jur 2d, Attorneys at Law, § 19). Although respondent was not criminally responsible for his acts, they tended to undermine public confidence in the Bar and, as such, they properly provided a basis for disciplinary action. Charges one through four were, therefore, properly sustained by the Appellate Division.

                                                   III

The eighth charge alleges that respondent violated the Appellate Division's Order of Suspension by publishing an article in the Journal of Urban Psychiatry entitled "The Right to Refuse Treatment: Therapeutic Orgy or Rotting With Your Rights On?," and by identifying himself in the article as "Robert T. Rowe, J.D." The Appellate Division's order, which substantially restates the provisions required by section 90[2] of the Judiciary Law, directed respondent to desist and refrain " (1) from practicing law in any form ... (2) from appearing as an attorney or counselor-at-law before any court ... (3) from giving to another an opinion as to the law or its application, or any advice in relation thereto; and (4) from holding himself out in any way as an attorney and counselor-at-law .... " Respondent's article did not violate subdivision (1) of the order. The practice of law involves the rendering of legal advice and opinions directed to particular clients (see, El Gemayel v Seaman, 72 NY2d 701, 706; (Matter of New York County Lawyers Assn v Dacey, 28 AD2d 161, 173-174, [Stevens, J.P., dissenting], reversed on dissenting opinion below 21 NY2d 694). Respondent's article sought only to present the state of the law to any reader interested in the subject. Inasmuch as it neither rendered advice to a particular person nor was intended to respond to known needs and circumstances of a larger group, its publication did not constitute the practice of law.

The Appellate Division concluded that the publication violated subdivision (3) of its suspension order because the article "offered advice to readers on the significance and effect of certain court decisions concerning the legal rights of psychiatric patients who refuse treatment." As so applied, the court's order violated respondent's constitutional right to speak freely.

The courts may, in the public interest, prohibit attorneys from practicing law and that prohibition may incidentally affect the attorney's constitutional right to free speech by forbidding the giving of advice to clients. Where the individual is not practicing law, however, and "does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech...," but rather impermissibly interferes with that individual's First Amendment rights (see, Lowe v Securities and Exchange Commission, 472 US 181, 232 [White, J., concurring]; Thomas v Collins, 323 US 516, 544 [Jackson, J., concurring]). In this case, respondent was exercising his right to free speech by publishing his article (see, Matter of New York County Lawyers Assn v Dacey, 28 AD2d 161, 176, reversed on dissenting opinion below 21 NY2d 694, supra). The Appellate Division, by applying its order to foreclose him from doing so, improperly "... prohibit[ed] him from engaging in endeavors which he could have undertaken had he never been admitted to the Bar in the first place" (see, Matter of Rosenbluth, 36 AD2d 383, 384).

Finally, it is not clear from the Appellate Division's decision whether it concluded that respondent, by use of the letters J.D. following his name, had "[held] himself out as an attorney" in violation of subdivision (4) of its suspension order. If it did so, its determination was error. The letters identified him as one who had successfully completed a law school curriculum, not as a member of the Bar licensed to practice law.

We have reviewed respondent's other contentions and find them without merit.

Accordingly, the order of the Appellate Division should be modified, without costs, by denying petitioner's motion to confirm so much of the Special Referee's report as sustained the eighth charge of misconduct, granting respondent's motion to disaffirm that portion of the Special Referee's report, and remitting to the Appellate Division, Second Department, for reconsideration of the discipline to be imposed, and, as so modified, affirmed.

* * * * * * * * * * * * * * * * *

Order modified, without costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed. Opinion by Acting Chief Judge Simons. Judges Kaye, Titone, Hancock, Bellacosa and Smith concur.

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