Mckenna v. DeSisto et al

Filing 15

ORDER granting 10 Motion to Dismiss Complaint, without prejudice. So Ordered by Judge Steven J. McAuliffe (NH) on 9/27/2012. (Duhamel, John)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
Keven A. McKenna,
Plaintiff
v.

Case No. 11-cv-602-SJM-LM

Marc DeSisto, Debra Saunders,
J. Joseph Baxter, Deborah Walsh,
and Paul Suttell,
Defendants
O R D E R
Keven McKenna, a Rhode Island attorney, seeks to enjoin an
investigation into his finances by Rhode Island Assistant
Disciplinary Counsel Marc DeSisto.

He sues DeSisto and several

other officials of the state court system, including the Chief
Justice of the Rhode Island Supreme Court.

Defendants move to dismiss the complaint under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6), raising issues related
to judicial immunity, standing, abstention, and the legal
sufficiency of plaintiff’s claims (document no. 10).

McKenna

objects (document no. 12).

Although defendants urge dismissal on several grounds,
consideration of defendants’ motion need not move beyond the
abstention issue.

See Younger v. Harris, 401 U.S. 37 (1971).

The federal relief McKenna seeks would require federal
interference in an ongoing state administrative proceeding.
entire suit, therefore, is necessarily dismissed.

The

See Rossi v.

Gemma, 489 F.3d 26, 39 (1st Cir. 2007) (where district court
properly abstained from hearing federal claims for declaratory
and injunctive relief, its dismissal of state law claims under
its broad discretion to deny supplemental jurisdiction was also
proper).

Standard of Review
While it remains unresolved in this circuit “whether a
Younger motion to dismiss is properly viewed as a Rule 12(b)(1)
motion to dismiss for lack of subject-matter jurisdiction, or a
Rule 12(b)(6) motion to dismiss for failure to state a claim,”
Massachusetts Delivery Ass’n v. Coakley, 671 F.3d 33, 40 n.6 (1st
Cir. 2012) (declining “to resolve this question here”), because
the abstention issue can be resolved on the allegations of the
complaint and public records (of which the court may take
judicial notice), the court will apply Rule 12(b)(6)’s standard.1
See id. (“[T]he district court did not engage in any weighing of

1

Defendants refer to both Rule 12(b)(1) and Rule 12(b)(6).
See document no. 10, at pg. 1. In their brief, however, they
argue all grounds for dismissal, including abstention, under Rule
12(b)(6)’s “plausibility” standard. See Def. Br., document no.
10, at pg. 9.
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the evidence, but rather based its decision on the undisputed
facts, namely the complaint and certain public documents.”).

Accordingly, the court accepts the complaint’s properly pled
allegations as true.

See Ocasio-Hernandez v. Fortuno-Burset, 640

F.3d 1, 8 (1st Cir. 2011).

However, because conclusory

allegations and “‘naked assertion[s]’” will not “suffice,” the
complaint “must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Background
The following facts are drawn from the complaint and from
public records.

McKenna is an attorney who has practiced law in

Rhode Island since 1973.

For many years, McKenna was the sole

stockholder and officer of Keven A. McKenna P.C. (the “PC”).

In

2005, McKenna filed suit challenging the “constitutional ability”
of the then-Chief Justice of the Rhode Island Supreme Court, “to
hold dual state and federal judicial positions.”
document no. 1, at pg. 7.

Complaint,

In addition to his 2005 lawsuit,

McKenna, from 2008 through 2011, publically criticized the former
Chief Justice, and the current Chief Justice, “for usurping will
of the voters contained in the . . . . 2004 Separation of Powers

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Constitutional Amendment.”

Id.

According to McKenna, state laws

passed just months before approval of the 2004 Separation of
Powers Constitutional Amendments “are in conflict” with those
amendments because they assign the budgetary, hiring,
appointment, property management, and regulatory powers of the
legislature and the Governor to the Chief Justice and top
administrators of the Rhode Island Supreme Court.

Id. at 6-7.

According to public records, McKenna’s firm, Keven A.
McKenna, P.C., filed for bankruptcy protection in early 2010.
McKenna notified the Rhode Island Supreme Court that he would
practice law as a limited liability corporation.

According to

the complaint, defendants thereafter began “an otherwise
unfounded and unconstitutional pre-textual administrative
inquisition of the Plaintiff’s practice of law” as “retaliation
for his criticisms of the Rhode Island Supreme Court’s abuse of
the sole powers of the General Assembly and [their] . . . misuse
of the sole executive powers of the Governor.”

Complaint,

document no. 1, pg 7.

The “administrative inquisition” is alleged to have begun
contemporaneously with the Rhode Island Supreme Court’s ruling on
McKenna’s application to practice law as a limited liability
corporation.

Id.

By order dated February 23, 2011, the Court

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stated that it would reconsider McKenna’s application to practice
law as an LLC upon certification by McKenna that he had withdrawn
his professional corporation from pending cases and had notified
its clients that the bankrupt PC was no longer engaged in the
practice of law.

The Court further provided that “[i]f the

certification is not received by the Court within thirty (30)
days of this Order, the Court will deem the limited liability
entity license application . . . withdrawn and may refer this
matter to the Court’s disciplinary Counsel.”

Document No. 10-4.

McKenna thereafter withdrew his application “to do business
as a lawyer in a Limited Liability Corporation” and “then changed
the purpose and name of his Limited Liability Corporation to a
staff support corporation, McKenna Support Services, LLC, instead
of a litigating corporation.”

Complaint, document no. 1, pg. 9.

The investigation allegedly continued thereafter when, in
July of 2011, Chief Justice Suttell appointed Marc DeSisto as
Assistant Disciplinary Counsel to “inquir[e] about possible
bookkeeping errors in Plaintiff’s business accounts.”
pg. 8.

Id. at

In furtherance of the investigation, DeSisto, and Clerk

of the Court Saunders, issued subpoenas duces tecum to McKenna
and Sovereign Bank, on September 12 and October 18, 2011,
respectively, seeking McKenna’s business and bank records.

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McKenna responded to both subpoenas by filing a “motion to quash
before the R.I. Disciplinary Board.”

Id. at pg. 11.

In December 2011, McKenna filed this federal suit for
declaratory and injunctive relief.

At that time, the state

Disciplinary Board had not yet ruled on McKenna’s motions to
quash the subpoenas.

Id.

The complaint in this case requests the following
declarations: (1) that the investigation, including the issuance
of subpoenas, violates the state constitution, statutes, and
attorney disciplinary rules; (2) that certain attorney
disciplinary rules and state laws delegating powers to the Rhode
Island Judicial Branch2 violate the state constitution;3 and (3)

2

It appears that McKenna is suing Defendants Baxter and Walsh
only insofar as he challenges state statutes governing their
positions as State Court Administrator and State Director of
Court Finance, respectively.
3

Count II of the complaint, entitled “Unconstitutional
Statutes in Violation of State Separation of Powers,” seeks
declaratory relief only, and only on state constitutional
grounds. In this context, Count II is construed as stating
claims under state law only, notwithstanding its passing
reference to federal constitutional principles (which, in any
event, are not tied to any request for relief). See McCready v.
eBay, Inc., 453 F.3d 882, 890 (7th Cir. 2006) (complaint did not
state federal rescission claim under the Bankruptcy Code where
three paragraphs which mentioned the Bankruptcy Code were “buried
in Count X, which is entitled ‘Breach of Contract’”). Even if
Count II did state a federal claim for declaratory relief, the
court would decline to hear it pursuant to its broad discretion
under the Declaratory Judgment Act, 28 U.S.C. Sec. 2201(a).
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that the investigation, including the issuance of subpoenas,
violates McKenna’s federal constitutional rights to free speech,
freedom from unreasonable seizure of personal effects and papers,
and due process.4

The complaint also seeks an injunction

quashing the subpoenas and enjoining defendants from further
interfering with his state and federal constitutional rights.

Discussion
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court
held that, barring exceptional circumstances, federal courts
should not enjoin pending state criminal proceedings.

Id. at 41.

In subsequent decisions, the Court concluded that Younger applies
in the civil context as well, Ohio Civil Rights Comm'n v. Dayton
Christian Sch., Inc., 477 U.S. 619, 627 (1986), including state
administrative proceedings.

Middlesex County Ethics Comm. v.

Garden State Bar Ass'n, 457 U.S. 423, 433-34 (1982).

See

generally Massachusetts Delivery Ass’n, 671 F.3d at 40-42
(“Younger abstention has extended far beyond its original roots
of non-interference with state criminal prosecutions.”).

4

Because the complaint names state, not federal, defendants,
its references to the First and Fourth Amendments will be
considered references to the rights contained in those
amendments, as made applicable by the Fourteenth Amendment. See
Gitlow v. New York, 268 U.S. 652 (1925); Wolf v. Colorado, 338
U.S. 25 (1949).
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Under the Younger doctrine, a federal court must abstain
from hearing a case “‘when the requested relief would interfere
(1) with an ongoing state judicial proceeding; (2) that
implicates an important state interest; and (3) that provides an
adequate opportunity for the federal plaintiff to advance his
federal constitutional challenge.’”
at 34–35).

Id. (quoting Rossi, 489 F.3d

Whether the relief plaintiff seeks in federal court

would “interfere” with an ongoing state judicial proceeding “is a
‘threshold issue.’”

Id. (quoting Rossi, 489 F.3d at 35).

But “[e]ven if all these requirements are met, . . .
abstention is still not proper in certain “‘extraordinary
circumstances’ or ‘unusual situations.’”

Massachusetts Delivery

Ass'n, 671 F.3d at 41 (quoting Younger, 401 U.S. at 53–54).

One

such situation is “extreme bias” which “completely renders a
state adjudicator incompetent and inflicts irreparable harm upon
the petitioner.”

Esso Standard Oil Co. v. Lopez-Freytes, 522

F.3d 136, 144 (1st Cir. 2008).

A.

Interference
“A federal-court proceeding ‘interferes’ with a state-court

proceeding for Younger purposes when it ‘either enjoins the state
proceeding or has the practical effect of doing so.’”

Montgomery

v. Montgomery, 764 F. Supp. 2d 328, 333 (D.N.H. 2011) (quoting

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Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 70
(1st Cir. 2005).

Assuming that the Disciplinary Board’s consideration of
McKenna’s motions to quash the subpoenas is an ongoing judicial
proceeding, the relief he seeks in this court would plainly have
the effect of interfering with that proceeding.

For one thing,

relief McKenna seeks here is substantially the same relief he
seeks from the Disciplinary Board.

See Stein v. Quinn, 2006 WL

3091144, at * 3 (W.D. Wash. 2006) (finding “interference” for
purposes of Younger abstention where plaintiff, who challenged
seizure of his papers by state prison officials and requested
injunction for their return, sought “the same relief in state
court” that he was seeking in federal court).

In addition,

McKenna’s claim to a federal right to be free from the described
state disciplinary investigation is doubtful at best, but it is
sufficient for these purposes to recognize that enjoining the
investigation itself would substantially interfere with the
Board’s ability to adjudicate plaintiff’s motions to quash the
subpoenas, since the subpoenas are in aid of the investigation
(indeed, the complaint itself characterizes them as such).

The

Board would, thereby, be effectively prohibited from rendering
any contrary enforcement determination.

Cf. Rossi, 489 F.3d at

35 (federal court declaration that state law is unconstitutional

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would have the effect of rendering the continuation of the state
proceeding a violation of plaintiff’s due process rights).

Younger’s “interference” prerequisite is met in this case.

B.

Ongoing State Judicial Proceeding Implicating an Important
State Interest
In Brooks v. New Hampshire Supreme Court, 80 F.3d 633 (1st

Cir. 1996), the court of appeals made clear that state “attorney
disciplinary proceedings are judicial proceedings for purposes of
Younger abstention.”
433-34).

Id. at 638 (citing Middlesex, 457 U.S. at

Moreover, the court held, because states have a “vital

interest” in regulating attorney conduct, attorney disciplinary
proceedings meet Younger’s further requirement that a state’s
important interests be implicated.

Id.

Here, the pending administrative proceeding before the
Disciplinary Board, in which the Board will resolve the validity
of subpoenas issued by the assistant disciplinary counsel,
constitutes an ongoing judicial process that quite directly
implicates the state’s important interest in regulating attorney
conduct.

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C.

Opportunity to Raise Constitutional Challenges
For purposes of Younger’s third prong, a “federal plaintiff

alleging an inability to raise constitutional claims must
demonstrate that ‘state procedural law barred [the] presentation
of’” those claims.

Murphy v. City of Manchester, 70 F. Supp. 2d

62, 69 (D.N.H. 1999) (Barbadoro, J.) (quoting Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 14 (1987)).

Here, McKenna does not assert that state law or procedural
rules preclude him from pressing his federal constitutional
arguments before the Disciplinary Board or the Rhode Island
Supreme Court.

Absent some clear reason to think otherwise, the

court must and does “‘assume that state procedures will afford an
adequate remedy.’”

Id. (quoting Pennzoil, 481 U.S. at 15).

For these reasons, Youngers’ three-prong test, and the
threshold “interference” requirement, are met in the present
case.

D.

Bias Exception
Although this case meets Younger’s requirements for

abstention, McKenna seeks to avoid that result by invoking the
doctrine’s bias exception.

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“[T]he baseline showing of bias necessary to trigger
Younger’s escape mechanism requires the plaintiff to offer some
evidence that abstention will jeopardize his due process right to
an impartial adjudication.”

Brooks, 80 F.3d at 640.

McKenna

asserts that he cannot obtain a fair hearing of his
constitutional grievances because DeSisto and Chief Justice
Suttell are biased against him, and structural bias infects Rhode
Island’s attorney disciplinary process.

See generally Esso

Standard Oil Co. v. Cotto, 389 F.3d 212, 219 (1st Cir. 2004)
(discussing actual and structural biases).

Neither argument is

supportable.

1.

Actual Bias

The Disciplinary Board, whose members are appointed by the
Rhode Island Supreme Court, consists of “eight (8) members of the
bar and four (4) members of the general public.”
Court Rules, Article III, Rule 4(a).

R.I. Supreme

Decisions by the

Disciplinary Board are subject to review by the Rhode Island
Supreme Court by means of a petition for writ of certiorari, R.I.
Gen. Laws Sec. 8-1-2, and a final recommendation by the
Disciplinary Board relating to disciplinary action must be
presented for Supreme Court review.
Art. III, Rule 6(d).

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R.I. Supreme Court Rules,

Although McKenna alleges that DeSisto, as assistant
disciplinary counsel, is biased against him, he does not allege
actual bias on the part of any of the twelve Disciplinary Board
members.

Moreover, even if McKenna had alleged such bias, his

decision to bring his claims before the Disciplinary Board
without, apparently, requesting disqualification of any members,
would undermine that allegation.

See Brooks, 80 F.3d at 640

(“The bias exception to the Younger abstention doctrine is
inapposite if an ostensibly aggrieved party fails to employ
available procedures for recusal of allegedly biased judges.”).

Similarly, McKenna has not presented allegations of actual
bias on the part of any justice other than Chief Justice Suttell.
With respect to his bias claims against the Chief Justice,
McKenna may, of course, seek recusal in the event the
Disciplinary Board’s ruling on McKenna’s motions to quash is
reviewed by the Rhode Island Supreme Court.

2.

Structural Bias

In support of his structural bias claim, McKenna contends
that Rhode Island’s Supreme Court Justices cannot fairly
adjudicate the validity of the court’s rules and procedures.
court of appeals in Brooks rejected a similar argument.
80 F.3d at 635.

In that case, plaintiffs argued that New

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The

Brooks,

Hampshire’s Supreme Court Justices were “predisposed to uphold
their own policies and rules” relating to attorney discipline.
Id.

Finding that plaintiffs had not established bias for Younger

purposes, the court reasoned that “an entire group of
adjudicators cannot be disqualified wholesale solely on the basis
of an alleged institutional bias in favor of a rule or policy
promulgated by that group.”

Id. (citing Doolin Security Savs.

Bank v. FDIC, 53 F.3d 1395, 1407 (4th Cir.)).

The same principle

controls here.

Accordingly, because McKenna’s “claims of general
institutional bias” are not “harnessed to a further showing . . .
such as a potential conflict of interest . . . or a pecuniary
stake in the outcome of the litigation,” Brooks, 80 F.3d at 635
(citations omitted), they must be rejected.

McKenna has not

adequately alleged either actual or structural bias sufficient to
avoid the requirements of Younger.

Conclusion
Defendants’ motion to dismiss (document no. 10) is granted.
Abstention under Younger v. Harris is required in this case.
case is dismissed without prejudice.

See Rossi, 489 F.3d at 37

(dismissal, not stay, is warranted where no money damages are
sought; dismissal of pendent state claims is proper).

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The

SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
September 27, 2012
cc:

Keven A. McKenna, pro se
Rebecca T. Partington, Esq.
Michael W. Field, Esq.

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