*1 438 FLYNT
LEIS v. еt al. et al. January 15, 1979 Decided 77-1618.
No. Curiam. Per of Pleas Common of Court of the judges Petitioners, County prosecutor, Hamilton Ohio, and County, Hamilton of Court States United of decision relief seek upheld Appeals of Court Circuit. the Sixth Appeals prosecu- further forbids injunction Court District a Federal Inc., Magazine, Hustler Flynt and Larry respondents of tion are Paul Cambria Fahringer and Herald respondents until hac pro appear applications hearing tendered Hustler Flynt and of on behalf Pleas of Common in the the asserted contend Petitioners Magazine. court vice in appear lawyer to an out-of-state Due by the protected interests those among fall does we Because Amendment. Fourteenth Process Clause for certiorari petition grant we contention, this with agree Circuit.1 Sixth judgment reverse principles violates injunctiоn contend also Petitioners Harris, S. 37 Younger 401 U. v. decisions in our embodied abstention City Douglas (1951); and Minard, U. S. (1971); Stefanelli disposition of our (1943). Because Jeannette, U. S. that issue. unnecessary to consider case, it think we merits Flynt and Hustler Magazine were indicted on February 8, 1977, for multiple violations of Ohio Rev. Code Ann. § 2907.31 *2 (1975), which prohibits the dissemination of harmful material to minors. At the arraignment on February 25, local counsel Flynt and Hustler presented an entry of counsel form listed Fahringer and Cambria as counsel for both defendants. Neither lawyer was admitted to practice law in Ohio.2 The form was the one used by members of the Ohio Bar, and it neither constituted an application for admission pro hac vice nor alerted the court that Fahringer and Cambria were not to practice admitted in Ohio. The judge presiding the arraignment routinely endorsed the form but took no othеr action with respect to the two out-of-state lawyers.3 practice The of law in governed Ohio is by Ohio Rev. Code Ann. (1977), §4705.01 provides which pertinent part: person “No shall permitted practice as an.attorney and counselor at law, or to commence, conduct, or any defend action or proceeding in which he is not a party concerned, either using or subscribing name, his own or the name another person, he unless has been admitted to the bar order of supreme court in compliance prescribed with its published and rules.” I, Rule 8 (C), of § the Supreme Court Rules for the Government of the Bar of Ohio determines when attorneys out-of-state may-appear pro hac vice in Ohio courts: “Admission Without Examination. “(C) An applicant under this section shall not engage in the
law in this prior state filing application. his To do so cоnstitutes the unauthorized practice of and law will result in a applica- denial of the tion. This paragraph (C) does not apply to participation by a non- resident of Ohio in a cause being litigated in this state when such participa- tion is with leave judge hearing such cause.” 3The District Court found that Fahringer and appeared Cambria had on Flynt behalf of Magazine Hustler in other criminal proceedings before the Hamilton County Court of Pleas, Common apparently being without required to do more they than did here. 434 Supp. (SD Ohio Judge of course a matter transferred as case was indictment him another active before who had Morrissey, and Cambria Fahringer Magazine. Hustler Flynt against him or vice to pro hac application admission no made 9 Judge March pretrial conference At a judge. other lawyer neither out-of-state counsel that Morrissey local advised Magazine. Flynt or Hustler represent be allowed to would Mor- Judge before appeared person and Cambria Fahringer April 8, where hearing on motions first time at a rissey for the defendants. representing they expressed Respond- request. summarily Morrissey dismissed Judge Supreme in the mandamus action commenced a ents then *3 They also admission. the overturn denial seeking to Court Judge to remove prejudice seeking of bias filed affidavit the court The Ohio Morrissey the case. dismissed stating Morrissey, Judge did remove but action mandamus trial prejudice, of bias it no evidence found that while appearance of the would avoid even judge different before a Supreme the Ohio judge ruled that The new trial impropriety. deny him to action bound of the mandamus Court’s dismissal Flynt and represent permission Fahringer and Cambria with them to work he did both of but allow Magazine, Hustler case. preparing counsel the in-state Dis- in the United States filed suit Respondents next further enjoin of Ohio to for the District Southern trict explain why lawyer did not might prior experience local 1977). This not Fahringer and were admitted Cambria alert the court that Judge’s first Ohio, indicate endorsement it not but does appearance. more, pro hac vice leave for a entry form, constituted without Fahringer the manner in found that which Although District Court comported the “cus- with sought appearance leave for an and Cambria ibid., court, finding that these tomary” it made no procedures of the procedures any explanation of these lawyers justifiably relied on official -they actually leave ground believing had received or had other appear. of the court to
441 prosecution of the criminal until case the state court trial a hearing held on the application. contested hac vice The court ruled lawyers’ representing Flynt and Hustler Magazine was constitutionally protected property right petitioners which infringed had without according lawyers procedural process. due 434 Supp. (1977). 481 prosecution Further Flynt Maga- Hustler zine enjoined therefore was petitioners until tendered Fah- ringer and requested Cambria the hearing. The Circuit Sixth affirmed, holding lawyers could be denied the privilege of appearing pro hac meaningful vice “without a hearing, application reasonably legal clear standard and the statement of a rational basis exclusion.” 574 F. 2d (1978). 879 874,
As this Court has observed on numerous occasions, Constitution does property not create interests. Rather it extends procedural various safeguards to certain interests “that independent stem from an source such as law.” state Board Regents Roth, 408 U. 564, (1972); S. see Light, Gas & Water Div. v. Memphis Graft, U. 1,S. (1978); Wood, Bishop v. 341, (1976); S. Paul v. U. Davis, 424 U. S. 419 U. S. 709-710 (1976); Lopez, Goss v. 565, 572-574 (1975); Perry Sindermann, 408 U. S. (1972). n. 7 Appeals The Court of evidently believed that lawyer’s an out-of-state *4 appearing interest in in pro hac vice an Ohio court stems some independent such source. It cited no authority state-law for this however, and proposition, indeed noted that “Ohio specific has no regarding standards pro admissions . . . .” 574 F. at 879. 2d, Rather the court prevalence referred to the of practice hac vice in American courts and history instances in our where counsel appearing pro hac vice distinguished have rendered service. question We do not practice that the of in courts most States is to allow an lawyer out-of-state the privilegе of appearing upon motion, especially when he is associated with a member of and high mobility bar, In of the local bar. view of the practice perhaps this is a specialization, the trend toward also by either right granted But it is encouraged. to be not founding or the Constitution. Since statute has been lawyers licensing regulation and Republic, of Columbia exclusively and the District to the States left prescribe respective jurisdictions. The States within standards and the qualifications admission to They responsible are conduct. also professional lawyers.4 discipline of enforceable, to be law,
A claim of
under state
entitlement
through
legal
rule or
must
derived from statute
Perry,
at 601-
mutually explicit understanding.
supra,
See
an
indication that
The record here is devoid
Ohio,
lawyer may claim
an
out-of-state
entitlement
Spanos
dissenting
heavily
v. Skouras
opinion
The
relies
on dictum in
1966).
Corp.,
(CA2
that case were
Theatres
Nor is there a basis for the argument
the interest
appearing pro hac vice has its source in federal
law. See
Paul
Davis,
supra, at 699-701. There
is no
origin
federal
permits
lawyers
appear
in state
courts without meeting that
bar
State’s
admission requirements.
This Court, on several occasions, has sustained state bar
rules that excluded out-of-state
practice
counsel from
alto
gether or on a case-by-case basis. See
& Western
Norfolk
R. Co. v. Beatty,
The writ lawyer’s argues that a dissenting opinion MR. The SteveNS Justice . . . calling protected the Due Process Clause right “pursu[e] his post, him, at 445. the State that licensed he the border” of when crosses “reinforce” “protected” interests that identifies two Mr. Justice SteveNS pro in hac These are said to be “the 'nature’ of the each other. inhering 'implicit promise’ in Ohio custom.” vice admissions [and] Post, at 456. “discharg- lawyer’s first is described as that of these “interests” justice
ing responsibility in our for the fair administration of [his] adversary system.” is, the Post, important as this interest at 453. As lawyer practice right suggestion that the Constitution assures the of a by any authority every one, supported in court of is a State novel right brought attention. flies in the face of to our Such asserted authority traditional be admitted to of state courts to control who supra; Beatty, B. Co. v. before them. See & Western Norfolk Enforcement, Special Disciplinary Prob- ABA Committee on Evaluation of (Final Disciplinary and Enforcement 13-14 lems Recommendations 1970). accepted, Draft If the constitutional rule advanced the dissent- ing opinion prevent hac would those States that have chosen to bar all see, g., appearances continuing so, vice e. Cal. Bus. & Prof. to do (West 1978); Supp. Code Ann. 1974 and under- would §§ policy reciprocity mine the of those States which do not extend to out-of- lawyers, see, g., Sup. (c) I; state e. Ariz. Ct. Rule 28 Fla. Rules of Sup. Relating Bar, I, Ct. to Admissions to the Art. 1.§ ground process protection
The second dissent- for due identified in the ing opinion “implicit promise” past practice is the inherent in Ohio’s “assur[ing] they practitioners out-of-state are welcome Ohio’s Post, courts. . . .” recall that a We no other claim constitu- by estoppel merely wholly tional can be created —as if because a — exрressly discretionary privilege granted generously state has been past. courts, setting in the That some the standards for admission jurisdiction, required within their showing denying have of cause before appear pro provides leave to support proposition no for the imposes requirement the Constitution this “cause” on state courts that reject have chosen to it.
of the Sixth reversed, Circuit is and the case is remanded proceedings further opinion. consistent with this
It is so ordered. grant Me. Justice White would certiorari and case set the argument. for oral
Me. Justice Stevens, with whom Me. Justice Beennan *7 and Me. Justice Maeshall dissenting. join, lawyer’s
A by interest in his pursuing protected is calling the Due Process Clause of the Fourteenth The Amendment.1 question presented by lawyer this case is whether a abandons protection that when he crosses the border of the State which issued practice. his license to
The Court holds lawyer constitutionally pro- that a has no tected in practice. interest his In the view, out-of-state its lawyer interest of the is so trivial no obli- judge a has gation give any to of a consideration whatsoever to the merits pro vice request, lawyer any hac or to give opportunity advance reasons in support application. of his The Court’s square is holding Due Four- Process Clause simply teenth Amendment apply does not to this kind of by ruling a state judge.2 trial 1 Konigsberg Bar, 252; v. State 353 U. Schware Board Bar S.
Examiners, 232, 238-239, 353 U. S. and 5.n. 2 Although it, the Court does presents not address this case also question by representation whether a defendant’s interest nonresident any counsel is entitled protection. clients, constitutional The as well as lawyers, parties litigation. are Moreover, judge to this trial perfectly ruling defendants, made it clear that his was directed at the and mеrely striking appearances Fahringer their counsel. After Cambria, judge the trial stated: you then, Flynt. “I will tell Mr. 2d case is set for the [T]he May, only thing you having 1977. . . . The is that will be restricted to attorney that’s admitted to in the State Ohio.” Tr. of premises holding briefly for this can be stated. A lawyer no of either or right, nonresident has as a matter state appear federal in an law, Ohio court. Absent mutual explicit enforceable based on an rule or entitlement, understanding, lawyer’s interest making may grant is appearance “privilege” a mere that Ohio judges. withhold the unrestrained discretion of individual lawyer protection The conclusion that a has no constitutional against capricious major- exclusion so seems obvious Proceedings County, Ohio, Court, in Common Pleas Hamilton in No. Apr. 8, 1977, p. (emphasis added). B77-0341 on adequate representation “perhaps A defendant’s interest in is his most important Alabama, privilege” protected the Constitution. Poweü v. scope lawyer’s practicing U. S. 70. Whatever the of a Friendly surely be, Judge stating in other States correct in representation by the client’s interest in out-of-state counsel is entitled protection: some measure of constitutional persuaded, however, are “We that where a has been conferred law, guarantee against federal abridgment citizens the constitutional its necessary appropriate must be read to include what is for its asser- *8 age specialization mobility In an high bar, tion. of increased of the comprehend bring attorney this must to to the of an assistance lawyer any admitted in 'public the resident state a licensed act’ of thought task, other state who is fitted for best and to allow him to effective, only in subject serve whatevеr manner is most rules to valid City courts as Hattiesburg, to before them. Cf. Lefton v. 333 280, (5 1964). Indeed, F. 2d 285 Cir. in instances where the federal claim unpopular, is lawyer advice and assistance defense an out-of-state only Spanos be the means available for vindication.” v. Skouras Corp., (en banc) (CA2 1966). Theatres 2d dispute capricious In this case is no there about the character of the Notwithstanding Ohio court’s action. professional unblemished ca Fahringer reers of and Cambria —in Ohio and elsewhere—their adherence application procedures they to the successfully same had followed past, familiarity and their demonstrated with the issues involved in the litigation, Judge Morrissey pro appear refused to allow them to hac vice. full, Judge Morrissey
In Fahringer ruled: “Mr. and Mr. Cambria attorneys try are not of record in this permitted case and will not be Aрr. 8, 1977, supra, this case.” Tr. of at 3. shows, So far as the record ity argument question of the is unnecessary. Summary reversal is the order day.
A
years
few
ago repudiated
syllogism
a similar
which had long supported the conclusion
parolee
that a
has
no constitutionally protected
status.4 Accepting
his
this was the second official action
respect
taken with
to the
applications of Fahringer and
first,
Rupert
Cambria.
In the
Judge
A.
Doan,
presided
Flynt’s
who
arraignment,
designating
two
issued
orders
lawyers
both
counsel “of record” in case
B77-0341,
eventually
No.
the case
assigned
Judge
Morrissey for
(E)
trial. According to Rule 10
of the-
Rules of Local Practice of the Court of
Pleas,
Common
County,
Hamilton
Ohio, under
Judges
which
Morrissey
Doan and
operating,
were
once a
designation order
filed,
attorney
“such
attorney
shall become
of rec-
ord . . . and
pеrmitted
shall not be
except upon
withdraw
written motion
good
and for
cause
Despite
shown.”
(E),
Rule 10
objection
no
appearance
Fahringer
Cambria,
any argument
nor
either for or
against
request,
was heard in advance of
ruling.
point
the final
In
of fact, nothing in the record
legitimate
identifies a
judge’s
for the
reason
action.
The record
suggest,
does
and in
holding
case the Court’s broad
certainly
would
encompass,
explanation
one
Judge
Morrissey’s unusual
ruling,
hardly
but
it can
legitimate.
characterized as
This is an
obscenity case. Conceivably Judge Morrissey
strong
has
about the
views
distribution of pornographic
lawyers
materials minors and about
who
specialize
defending
activity.
Perhaps these are not the kind of
lawyers that he wants practicing in
Judge
his courtroom.
Morrissey
That
reportedly referred to Fahringer as a “fellow
of pomographers
traveler”
is at least consistent
speculations.
with these
Post,
Cincinnati
Feb.
1977, p.
Indeed,
denying
after
respondents’ request
Judge
to have
Morrissey removed from the case
bias,
Supreme
Court of Ohio
explanation
without
ordered that
judge
another
County
of the Hamilton
Court of
try
Common Pleas
the case.
syllogism
That
had its adherents well into
century.
Curtis
See
Bennett,
I
arbitrary and
judge has
that a state trial
The notion
lawyer permission to
nonresident
power
unlimited
to refuse a
bygone
of a
a remnant
nothing but
in his courtroom is
appear
Board in re-
(“In
the Parole
Chappell,
a real sense
“Nonresident Hamilton, Andrew example, For celebrated cases. most Peter John bar, defended Philadelphia a leader most America’s in in colonial York New Zenger ap- Clarence Darrow freedom-of-speech case. famous unpopular of an many plead the cause peared in states trial Tennessee including Scopes the famous client, out-of-state law- well-known, opposed he another where lawyers Bryan. Jennings Great William yer, Evans Daniel to Charles Alexander Hamilton and Webster for admitted specially were Hughes and John Davis W. A in other states. small important the trial of cases inspired and hac vice lawyers appearing pro group In a stages. early rights movement its initiated the civil South, throughout brought in courts series of cases Mot- Constance lawyers Thurgood Marshall, out-of-state appointments ley before Spottswood Robinson, developed legal principles which to the federal bench, gave rights to the civil movement. rise for this tradition. a number of reasons
“There are society’ our mobility and the ‘The demands business American Bar Association given are the reasons Resрonsibility. the Code of Professional Canon 3 of limitations’ discourages Canon ‘territorial That 9Spanos Corp., 2d, at 170. Skouras Theatres 10Ibid. law, including trial practice. There are other
reasons in addition to business reasons. A client may want particular a lawyer particular a kind of case, and a lawyer may want to take the case because of the skill required. Often, as in the case Andrew Hamilton, Darrow, Bryan Thurgood .and lawyer par- Marshall, a ticipates in a case out of justice. sense He feel of duty sense to defend an unpopular defendant and in this way give expression to his own moral sense. These important are values, lawyers both and clients, and should not be arbitrarily.” denied 2dF. (CA6 878-879 1978) (footnotes omitted).11 *12 The modern examples by identified Judge Merritt, though more illustrious typical than the pro hac vice appearancе, are not rare exceptions to general a custom of excluding nonresi- dent lawyers from practice. local On the contrary, appear- by ances out-of-state counsel have been routine throughout the country for at quarter least a of century.12 a The custom is so well recognized that, Judge Friendly as in 1966, observed there “is slightest not the reason suppose” to qualified a that lawyer’s pro hac vice request will be denied.13
This case involves a application by qualified legal specialists;14 legitimate no reason denying 11 Judge See also Soper’s Ades, discussion in re Supp. 467, In 6 F. (Md. 1934). 475-476 supra Loh, 12 Brakel & 8, 702, 9; n. Note, Attorneys: and n. Inter state and Practice, Federal 1711, 80 Harv. L. (1967). Rev. 1716 13Spanos v. Skouras Corp., supra, Theatres at 168. 14Both Fahringer and Cambria are York, members of the Bar of New specialize who obscenity defense and lаw. In criminal the former received the Outstanding Practitioner of the Year award from the New York State Bar Association. The latter received legal his education in Ohio University at the of graduated Toledo Law School where he first in his class. school, While law he was admitted of Ohio State as legal practiced intern and Municipal as such in the Prosecutor’s office in Toledo. 452 retained had been They by the record.15 suggested
request is be might that trial litigant unpopular to defend classic It is and attitudes.16 prejudices by local affected be served justice would the interests in which situation his by counsel represented to be the defendant allowing choice. merely is to vindicate lawyers seek these interest attempt every individual’s that motivates goal pecuniary profession’s It calling.17 his pursue Cam- [Fahringer and against disciplinary actiоn any “No evidence Court, there nor is presented has been by any bar association
bria] are contemplated. Both presently action is to believe reason persons qualified representation in the and experienced competent, 1977). (SD Ohio Supp. charged crimes.” with “War, The entitled Flynt’s publication respondent charged that Ann. contrary youth Ohio Rev. Code Obscenity,” is harmful Real Federal based on the are Among his defenses several (1975). §2907.31 vagueness over- and is “void 2907.31 He claims § Constitution. and publication on the impermissible prior restraint breadth, imposfes] an Amend by the First and Fourteenth protected of materials circulation relation or reasonable Constitution,” “bears no rational and ments Preliminary Per Complaint for legitimate interest.” ship to a state Act. C-T-77- Declaratory Judgment, in Civ. No. Injunction manent (SD pp. 19-21. Ohio, 14,1977), June people, there can be no doubt for a 'free In a Constitution Regents Roth, ‘liberty’ indeed.” Board must broad meaning *13 “liberty” protected 564, Although the boundaries of 572. 408 U. S. surveyed, conclusively it been have never by Amendment the Fourteenth bodily merely they freedom from encompass “not [the] is clear that specific provisions Constitu of the rights conferred restraint” and “ long ‘privileges Nebraska, 390, 399, but also the Meyer 262 U. S. tion, v. orderly pursuit happi of to the as essential recognized at common law ” quoting Meyer 651, 673, v. Ingraham Wright, U. v. 430 S. ness.’ Organization Families, Foster Smith supra, v. Nebraska, at 399. See specific privileges right Among is “the to hold 816, those 431 U. S. McElroy, v. profession," Greene follow a chosen and to private employment v. Board of law.” Schware including practice “the 492, 360 U. S. S., at 238. Examiners, 353 U. Bar denial of rely fact that way on the in no Fahringer and Cambria
453 discharging its responsibility for thе fair administration of justice in our system. adversary The nature of that surely worthy of the protection afforded the Due Process Clause of the Fourteenth Amendment.
II In the past, Ohio implicitly has prac- assured out-of-state titioners they that are welcome in Ohio’s courts unless there is a valid, articulable reason for them. excluding Although the Ohio Supreme Court respondents’ dismissed petition for an extraordinary writ of mandamus it not case, this has dispelled that because assurance it did purport pass merits their my claim.18 In opinion the assur- State’s ance is adequate to create interest that qualifies “prop- as erty” within the meaning of the Due Process Clause.
The District Court found as a fact
judges
that Ohio trial
routinely permit out-of-state counsel
appear pro
vice.19
regular
This
pursuant
is conducted
Rules
the Supreme
Ohio,20
Ohio’s Code
Professional
applications
their
“might make them somewhat less attractive” to clients
and might
compromise
otherwise
Bishop
professional
reputations.
Cf.
Wood,
426 U.
S.
348-350.
only
The
record of
Supreme
the Ohio
Court’s actions in this
is a
case
journal notation
it
was “dismissed.” The record indicates
petitioners argued to the Supreme Court in their written submissions that
the court could not
extraordinary
entertain an
writ
in this matter but
respondents’
remedy lay
post-trial
in a
appeal
assuming Flynt was
—
newly
convicted.
assigned
judge
Flynt’s case,
only
trial
Ohio
court of which we are
interpreted
aware that has
Supreme
the Ohio
Court’s
matter,
actions
concluded that the dismissal
not on the
was
respondents’
merits of
claim of a
explanation
to an
being
before
denied admission.
It
instead concluded that
“apparently
claim
is an
you
issue that
will have to
resolvе
appellate
normal
procedures if
and when
opportunity
presents
May 10,
itself.” Tr. of
1977, p. 16.
Supp.,
at 483.
Ross,
See State App.
185, 188,
2d
“[T]he lawyer handle the upon right of a to limitations territorial imposes to opportunity a client obtain upon the client or legal of his affairs presentation including the in all matters lawyer choice a of his services lawyer is not which a tribunal before matter contested of a practice.” to admitted permanently of Common Practice of the Court 10(E) Local the Rules of Rule attorney accepts “[a]ny who Ohio, requires County, Pleas, Hamilton Once specified form. file a case” to employment in criminal private here, attorney becomes judge, a as ocсurred form' is endorsed except upon to withdraw permitted be “attorney who “shall not of record” supra. 3,n. good shown.” and for cause See motion written supra. Boss, State v. attorney recognized that an 24 “lt however, been has, generally may state, good standing in another practice Ohio, but to admitted person representing a purpose of specially admitted specially or not criminal. so case, be it civil or Whether particular Ohio, practice in but admitted attorney not admitted permit party in a state, represent standing in another good and in trial the sound discretion of the action, lying within is a matter particular (cid:127) has been an abuse whether there must determine Thus, we court. 2d, Ross, supra, 188, 304 N. E. at State instance.” in this discretion in dicta that have held or stated admission courts appellate Other jurisdiction not be without denied courts within their vice to trial
455
In
Ross,
State v.
36
App.
Ohio
185,
2d
Either with custom in Ohio inhering promise” “implicit the sions an create to sufficient is admissions to those respect of each Moreover, Clause. Process Due the by protected the other. reinforces conclusions these years in recent by the employed analysis of mode “liberty” of concepts Amendment Fourteenth the has treated exclusive, mutually they defined though as “property” and shedding neither interests, with of categories closed the in some Indeed, other. the meaning the light only property that not implied it has opinions recent Court’s state specific apart not exist does liberty itself but Rights.29 the Bill guarantee express or an authorization lies action case, the state In S., 577. at Roth, 408 Regents U. is multi- promise implied '‘'understanding” or the relevant the source judges, Ohio trial practice past the consistent In addition faceted. sufficient found conduct of administrative course analogous is which case rules and local by state supported promise is Morrissey, that law. conferred, not procеss ... is procedural due 28 “[T]he legislature guarantee. While by constitutional grace, but legislative may employment, it in federal property interest confer may not to elect interest, once deprivation of constitutionally authorize have our cases safeguards. As procedural appropriate conferred, without depriva statutory procedures adequacy of recognized, consistently analyzed in consti interest must property statutorily created of a tion concurring in J., S., at 167 (Powell, Arnett, 416 U. terms.” tutional omitted). (footnote part) Fano, U. S. 693; Meachum Davis, 424 S.U. Paul v. See Rights nor Bill of that “neither the view to adhere continue I In my judgment this is not way majestic language
the Fourteenth Amendment should be read.
As is
demonstrated
cases
Meyer
like
v. Nebraska, 262
U. S. 390, 399; Morrissey v. Brewer, 408 U. S. 471; Bell v.
Burson, 402 U.
S.
539, and Mr. Justice Frankfurter’s
classic
opinion
concurring
in Joint Anti-Fascist Refugee Com-
mittee v. McGrath,
IY
It is ironic that this litigation should end as it began —with
*17
judicial
ruling on the merits before
parties
have been
heard on the merits. Pursuant
to Rules 19, 23, and 24 of this
Court,
the only issue
discussed
the petition for certiorari
and in respondents’ brief memorandum in reply is whether
“a Writ of Certiorari should issue to review the judgment and
opinion of the Sixth Circuit in this matter.”
Pet. for Cert.
19. This surely is
case that should be decided before
respondents have been given an opportunity to address the
merits. Summary reversal “should be reserved for palpably
clear
cases
. . . error.” Eaton v. Tulsa, 415
S. 697,
U.
707
laws of sovereign States
liberty
create the
which the Due Process Clause
protects. The relevant
provisions
constitutional
are limitations on the
power of the sovereign to infringe on
liberty
of the citizen. The
relevant state laws either
property
create
rights,
they
curtail
freedom of the citizen who must live in
ordered society.
Of course,
law is essential to the exercise
enjoyment
liberty
individual
in a
complex society. But
it is not the source of liberty,
surely
not the
exclusive source.” Id., at 230 (Stevens,
J., dissenting).
egregiously
reversals are
dissenting).
Such
J.,
(Rehnquist,
a “novel constitutional
facing
when the Court
improvident
Mimms,
U. S.
Pennsylvania (Ste-
question.”
I
dissent
respectfully
Accordingly,
dissenting).30
J.,
vens,
great
a question
summary disposition
from the Court’s
administration
justice.
importance to the
summary dispositions
Although
previous
three
the Court cites
nothing
to do with
decision,
whatsoever
two have
Court
in favor of its
preventing out-
with rules
hac vice
Both are concerned
admissions.
they
up permanent practices in
where
lawyers
setting
States
of-state
Supreme
Virginia,
414 U. S.
Brown v.
were not licensed.
Oinsburg,
(ED
1973);
summarily
Kovrak
aff’g
Supp.
Va.
question, appeal
federal
52, dismissing, for want of substantial
358 U. S.
chal
*18
(1958). The third case involved a
Pa.