McKenna v. DeSisto et al

Filing 22

ORDER DISMISSING CASE- So Ordered by Judge Joseph N Laplante on 7/31/14. (Barletta, Barbara)

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

Civil No. 14-cv-260

Marc DeSisto, J. Joseph
Baxter, and Paul Suttell
SUMMARY ORDER
In its Order of June 12, 2014, this court observed that
plaintiff Keven McKenna previously had filed two actions in this
court that, like this one, sought to enjoin an ongoing attorney
disciplinary proceeding brought against McKenna for his alleged
violations of the Rhode Island Code of Professional Conduct.

The

court noted that both those actions had been dismissed under the
doctrine announced in Younger v. Harris, 401 U.S. 37 (1971), and
ordered McKenna to show cause why “the court should not dismiss
this dispute for the same reasons set forth in the orders
dismissing his two previous actions, and the Court of Appeals’
order affirming the dismissal of the first action.”

McKenna has

obliged, and has filed a memorandum explaining why he believes
abstention under Younger is not warranted here.

The court is not

persuaded.
Under Younger and its progeny, a federal court must abstain
from exercising jurisdiction over a matter “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.”
Rossi v. Gemma, 489 F.3d 26, 34-35 (1st Cir. 2007).

McKenna

wisely does not dispute that the relief he seeks would interfere
with the pending disciplinary proceeding, or that this proceeding
constitutes “an ongoing state judicial proceeding” that
“implicates an important state interest.”1

See Brooks v. New

Hampshire Supreme Ct., 80 F.3d 633, 638 (1st Cir. 1996) (holding
that, for purposes of Younger abstention, “attorney disciplinary
proceedings are judicial proceedings” and that “regulating
attorney conduct comprises a significant state interest”).
McKenna instead trains his sights on the third requirement for
Younger abstention.

The disciplinary proceeding does not provide

him “an adequate opportunity” to present his claims, he argues,
because the Rhode Island Supreme Court, which ultimately will
decide whether to take disciplinary action, initiated the
proceeding itself, “in essence sua sponte,” and took what McKenna
claims is the unprecedented step of hiring an attorney to serve
as assistant disciplinary counsel and to investigate him and
recommend a course of action to the Disciplinary Board and the
Supreme Court.

The necessary conclusion, he argues, is that the

1

McKenna’s memorandum does argue that the proceeding also
“concern[s] federal interests,” but it does not deny the state
interest implicated therein.
2

Supreme Court is biased against him and cannot render a fair
decision.
McKenna is correct that a federal court should not abstain
from exercising its jurisdiction under Younger if the state
proceeding with which the federal case would interfere is pending
before a tribunal that has prejudged the facts or has a personal
interest in the outcome.2

See Gibson v. Berryhill, 411 U.S. 564,

577-79 (1973); Esso Standard Oil Co. v. Cotto, 389 F.3d 212, 21819 (1st Cir. 2004).

But “the 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.”
640.

Brooks, 80 F.3d at

McKenna has offered neither evidence nor allegations that

call into question the Rhode Island Supreme Court’s impartiality.
All that McKenna points to in support of his claim that the
Rhode Island Supreme Court is biased against him is, as just
described, the fact that the court (1) initiated the proceeding
itself, and (2) retained an attorney to investigate whether
McKenna had violated the Code of Professional Conduct.

These

events, however, whether viewed alone or in conjunction, do not

2

A claim that the state tribunal is biased is ordinarily
considered separately from Younger’s third requirement. See,
e.g., Brooks, 80 F.3d at 639-40. Because, however, McKenna has
collapsed the Rhode Island Supreme Court’s alleged bias and the
adequacy of his opportunity to present his claims to that court
into a single argument, this order follows suit.
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suggest that the court has prejudged the facts in a manner that
would deprive McKenna of his right to an impartial adjudication.
Indeed, the United States Supreme Court has specifically rejected
the contention that a party is denied that right when the entity
initiating proceedings and the adjudicator are one and the same.
Withrow v. Larkin, 421 U.S. 35, 46-55 (1975).

It has similarly

held that a party is not denied that right when the adjudicator
investigated the facts itself, see id.; it follows that the right
to impartial adjudication is not violated when the adjudicator
appoints an investigator.3
To be sure, facially innocuous practices and procedures can
still be employed in a way that deprives a party its right to an
impartial adjudication, as the Withrow Court recognized.

See id.

at 54-55 (commenting on the “possibilities of bias that may lurk
in the way particular procedures actually work in practice”).

In

the absence of some evidence that those practices and procedures
have in fact been employed in that manner, however, the mere fact
that they were used in the first place does not establish bias on
the part of the adjudicator.

Although McKenna characterizes the

Rhode Island Supreme Court’s conduct as “extraordinary,” “pre3

The court notes that Article III, Rule 5(a) of the Rhode
Island Supreme Court Rules of Disciplinary Procedure empower the
Rhode Island Supreme Court to appoint such assistant disciplinary
counsel “as may from time to time be required.” Those Rules are,
in turn, authorized by R.I. Gen. Laws § 8-1-2, which empowers the
Supreme Court to “regulate the admission of attorneys to practice
in all the courts of the state” “by general or special rules.”
4

textual,” “persecut[ory],” and “targeted,” he has not provided
any evidence to that effect, and “the presumption of judicial
impartiality cannot be trumped by free-floating invective,
unanchored to specific facts.”

Brooks, 80 F.3d at 640.

The court accordingly concludes that abstention is required
under Younger.

The case is dismissed.

SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

July 31, 2014

Samuel A. Kennedy-Smith, Esq.
Keven A. McKenna, Esq.
Marc DeSisto, Esq.
Michael W. Field, Esq.

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