Inside the Supreme Court
Petition to Decision
Papers of Supreme Court Justices on Civil Rights Cases
David Achtenberg
Professor & Law Foundation Scholar
UMKC School of Law
Kansas City, MO 64110-2499
816-235-2382
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Bizarre History of Pembaur v. City of Cincinnati |
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Dr. Bertold Pembaur traveled a long, bizarre and convoluted road to the Supreme Court. He was born and studied medicine in Austria before being drafted into the German Army where he served in an artillery unit on the Russian front. After the war, he emigrated to Cincinnati, Ohio, where he established the Rockdale Medical Center. Most of the clinic's patients were indigent and relied on government assistance to pay their medical services. In the spring of 1977, a Hamilton County grand jury began investigating allegations that Dr. Pembaur had received payments from state agencies for medical services that had not been performed. As part of that investigation, police entered Pembaur's clinic on April 26 and executed a search warrant by seizing roughly 35,000 documents, almost all of which were returned within a few weeks. The seizure and return of these documents was widely publicized in the Cincinnati area media. During its investigation, the grand jury also subpoenaed a number of clinic employees, two of whom (Dr. Kevin Maldon and Ms. Marjorie McKinley) failed to appear. As a result of that failure, writs of attachment ("capiases") were issued for their arrest. About 2:00 on May 19, two Hamilton County deputy sheriffs entered the public area of the clinic to serve the writs, but Dr. Pembaur appeared and refused to permit them to enter the non-public portion of the clinic saying that he needed to protect his employees and the confidentiality of his patients and their records. He asserted that the capiases—unlike the April 26 warrants—did not authorize the deputies to enter his premises without a search warrant. (While this was an open legal question at the time, Dr. Pembaur turned out to be correct.) The scene became increasingly strange. Dr. Pembaur telephoned the Cincinnati police, various lawyers, two judges, and the media. At one point, he served the deputies tea. The reception area was soon filled with TV cameras, reporters, lawyers (including an assistant prosecutor), deputy sheriffs and police officers. Meanwhile, another clinic employee led Dr. Maldon and Ms. McKinley up a back stairwell to a hallway that was adjacent to, but outside of, the clinic. They remained there until the officers left. The police tried to convince Dr. Pembaur to permit the deputies to enter, but he remained adamant. The deputies eventually called the county prosecutor's office for advice and were advised to "go in and get [the two witnesses]." When Dr. Pembaur refused to open the door to the non-public areas, the deputies tried to force the door. When that failed, police officers chopped the door down with an ax they obtained from a nearby fire station. The deputies then detained two individuals who resembled Ms. McKinley and Dr. Maldon, only to discover later that they had arrested the wrong people. Ms. McKinley was arrested without incident at her home that evening, and Dr. Maldon the next day. On June 24, 1977, Dr. Pembaur was indicted on six counts, the last of which was for obstructing justice by preventing the deputies from entering his office. He was separately tried on that count first and was convicted. That conviction was upheld by the Ohio Supreme Court even though the Court agreed with Pembaur that the deputies did not have the right to enter the non-public areas of the clinic. The United States Supreme Court declined to review the criminal case with Justices Brennan and White dissenting without opinion. Meanwhile, two days before he was to be tried on the remaining five counts, Dr. Pembaur, who had been released on his own recognizance, left the country and traveled to Austria without notifying the prosecutor or seeking permission from the trial court. He remained in Austria for eight months either (depending on whose version you believe) receiving treatment for a heart condition or avoiding trial. When he returned, he was acquitted of the remaining five counts of the original indictment including the fraudulent billing allegations that had inspired the original investigation. As a result of his travels to Austria, he was also charged with violating the terms of his recognizance by failing to appear on the original trial date; but, after an initial conviction was overturned, he was acquitted on that charge as well. While the various criminal proceedings and appeals were taking place, Dr. Pembaur filed the civil rights suit that became known as Pembaur v. City of Cincinnati, seeking monetary damages for the illegal entry into his office. After the Supreme Court ruled in his favor, the case was remanded and after several hearings and further appeals, Dr. Pembaur was awarded $5,000. This award was ultimately affirmed in 1991—more than fourteen years after the incidents at the Rockdale Medical Center.
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