State v. Russo

630 P.2d 711, 230 Kan. 5, 1981 Kan. LEXIS 249
CourtSupreme Court of Kansas
DecidedJune 29, 1981
Docket47,563
StatusPublished
Cited by41 cases

This text of 630 P.2d 711 (State v. Russo) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Russo, 630 P.2d 711, 230 Kan. 5, 1981 Kan. LEXIS 249 (kan 1981).

Opinions

Per Curiam:

In these original proceedings, Anthony R. Russo, a former attorney disbarred by consent, petitions the Supreme [6]*6Court seeking reinstatement as an attorney and readmission to the bar of Kansas.

The petitioner was first admitted to the practice of law in Kansas in 1962 and thereafter practiced law in Wyandotte County until he voluntarily surrendered his certificate and privilege to practice law on June 17, 1976, following the institution of disciplinary proceedings. On November 14, 1973, petitioner was charged in a grand jury indictment in the United States District Court for the District of Kansas with conspiracy to violate the Kansas laws against prostitution and bribery as precluded by the criminal laws of the United States, 18 U.S.C. § 1952 and 18 U.S.C. § 371. The charge grew out of the operation of certain houses of prostitution in Wyandotte County by a client of the petitioner and allegations that the client conspired with Mr. Russo to bribe certain police officials and thereby obtain protection from raids upon the houses of prostitution, and the enforcement of the criminal laws relating to prostitution. Mr. Russo went to trial before a jury and was convicted. His conviction was affirmed by the United States Circuit Court of Appeals, Tenth Circuit, in United States v. Russo, 527 F.2d 1051 (1975), cert. denied 426 U.S. 906 (1976).

Following his conviction in federal district court, the disciplinary administrator filed a complaint against Mr. Russo on June 12, 1974. Proceedings on the complaint were held in abeyance pending the outcome of an appeal. After exhausting his appeals, Mr. Russo voluntarily surrendered his certificate to practice law in Kansas and the same was accepted by the Supreme Court on June 24, 1976. In re Russo, 220 Kan. 181, 551 P.2d 787 (1976). Petitioner served approximately seventeen months at the United States Penitentiary in Leavenworth and was released November 22, 1977. Petitioner also paid a $10,000.00 fine.

On February 13, 1980, Mr. Russo filed a petition with this court seeking reinstatement to practice law pursuant to Rule 219 (225 Kan. lxxxix). The matter was then referred to the disciplinary administrator and assigned to a panel of the Kansas Board for Discipline of Attorneys for investigation and recommendation. On June 13, 1980, a hearing was held before the panel in the Municipal Office Building at Kansas City, Kansas. No objections were made to the notice of hearing, the composition of the hearing panel or the proceedings before the panel. Numerous [7]*7reputable citizens appeared before the panel to urge the reinstatement of the petitioner and to vouch for his good character and reputation. No evidence or testimony adverse to the petitioner was presented by the disciplinary counsel. The transcript of the proceedings covers 251 pages of testimony presented by twenty-five witnesses for the petitioner, including his testimony. It would serve no useful purpose to detail the testimony and suffice it to say it was all favorable to petitioner. Nine exhibits were offered and admitted on behalf of the petitioner and the disciplinary administrator introduced four exhibits.

On September 12, 1980, the hearing panel filed its report detailing the evidence presented together with its findings and unanimously recommended that petitioner be reinstated to the practice of law in Kansas upon the successful passing of the Kansas bar examination. As the report of the panel was favorable, the petitioner filed no exceptions to the report and took no further action, all as contemplated by Rule 219(c).

On October 31, 1980, this court issued its order denying the petition for reinstatement. On November 10, 1980, the petitioner filed a motion for rehearing or modification which was considered by the court and denied on December 10, 1980. On December 24, 1980, petitioner filed a motion for an order allowing him to file a brief presenting constitutional questions alleging that his constitutional rights to due process and equal protection had been violated. This motion was granted, petitioner and the office of the disciplinary administrator have filed briefs, the complete transcript of the proceedings before the panel has been made a part of the record and the court has now studied and considered the petition for a third time, along with the complete record. A majority of the members of this court remain of the opinion the petition of Mr. Russo for reinstatement should be denied.

At the outset we note that the reports and recommendations of the Board for Discipline of Attorneys and its hearing panels are advisory only and not binding upon the court. Rule 212(f), 227 Kan. xxvii; State v. Phelps, 226 Kan. 371, 598 P.2d 180 (1979), cert. denied 444 U.S. 1045 (1980); In re Dunn, 223 Kan. 9, 569 P.2d 366 (1977).

Petitioner argues that the orders of this court entered October 31, 1980, and December 10, 1980, were arbitrary and discrimina[8]*8tory because the court did not have, and obviously had not considered, an actual transcript of the proceedings held on June 13,1980, before the panel. Thus, it is contended petitioner’s right to due process of law was violated. Petitioner also contends his constitutional rights to equal protection of the laws have been violated. We do not agree. The report of the hearing panel reviewed in detail and itemized the thirteen documentary exhibits, identified the twenty-five witnesses who testified and summarized at length the testimony of the witnesses. An actual detailed examination and consideration of the entire transcript and documentary evidence merely confirms that the court was fully cognizant of the proceedings before the panel and the nature and extent of the evidence considered by the panel. Petitioner’s claim that he has been denied due process of law is without merit.

The fundamental question raised by petitioner is whether this court in a disciplinary or reinstatement proceeding may make a determination contrary to the recommendations of the hearing panel. While the evidence before the panel indicates that many respected members of petitioner’s community sincerely believe that he has been totally rehabilitated and should be again admitted to the practice of law, it is this court’s duty to determine whether the readmission of Mr. Russo to the practice of law would be in the best interests of justice and the people of the State of Kansas.

Petitioner, to avoid further disciplinary proceedings, voluntarily relinquished the privilege to practice law which had been granted to him in 1962. Such action was not taken lightly by petitioner and did not come about until over two years had elapsed from the time of his conviction and the filing of the complaint by the disciplinary administrator. During such period petitioner was involved in appealing his conviction as he had every right to do. However, once that conviction became final, it is conclusive upon this court and this court will not look behind the conviction or attempt to weigh the evidence leading to that conviction. Rule 202 (225 Kan. lxxxi);

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Bluebook (online)
630 P.2d 711, 230 Kan. 5, 1981 Kan. LEXIS 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-russo-kan-1981.