Moncier v. Jones et al (TV1)
Filing
18
MEMORANDUM, OPINION AND ORDER that Plaintiff's Request for Injunctive Relief 2 and 10 is DENIED. Signed by District Judge Thomas A Varlan on 7/19/11. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
HERBERT S. MONCIER,
Plaintiff,
v.
NANCY JONES, et al.,
Defendants.
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No.:
3:11-CV-301
(VARLAN/SHIRLEY)
MEMORANDUM OPINION AND ORDER
This civil action is before the Court on plaintiff’s request for injunctive relief [Docs.
2, 10].1 Defendants filed a response in opposition [Doc. 8], and plaintiff replied [Docs. 9,
10]. The Court then heard oral argument, at length, from all parties [Doc. 15]. The day after
the hearing, defendants filed a notice of supplemental authority [Doc. 16].
The Court has thoroughly considered the filings as well as the arguments advanced
orally by the parties. For the reasons stated herein, the Court denies plaintiff’s request for
injunctive relief.
I.
Background
This case comes to the Court with a long, complex, and in some ways unfortunate,
history. On July 30, 2008, defendant Nancy Jones, Disciplinary Counsel for the Board of
1
The Court notes that plaintiff currently is suspended from practicing before this Court. In
re Moncier, 550 F. Supp. 2d 768 (E.D. Tenn. 2008). Plaintiff received authorization from the
Honorable Curtis L. Collier, Chief United States District Court Judge, to commence this action. Id.,
No. 1:08-MC-9 (E.D. Tenn. June 17, 2011).
Professional Responsibility of the Supreme Court of Tennessee (the “Board”), filed a petition
for discipline against plaintiff [Doc. 8-1]. A hearing panel for the Board held a hearing and,
on January 13, 2010, the hearing panel issued its judgment, finding plaintiff had violated
certain rules of the Tennessee Rules of Professional Conduct, and imposed a forty-five day
active suspension, along with a ten-and-one-half month probationary period [Doc. 6 ¶ 10].
The hearing panel also required a practice monitor for plaintiff’s probationary period and that
plaintiff obtain an additional twelve hours of ethics continuing legal education during that
time [Id.]. Plaintiff filed post-judgment motions on January 19, 2010, pursuant to “Tenn.
Sup. Ct. R. 9, 23.2 and Tenn. R. Civ. P. 52.02, 54.02, 59.04 and 60.02 for relief from
multiple errors and mistakes in the [h]earing [p]anel’s judgment” [Id. at ¶ 11]. On February
13, 2011, the hearing panel held that it did not have the authority to consider plaintiff’s
motions [Id. at ¶ 12]. The Board considered the hearing panel’s judgment on March 12, 2010
[Doc. 8-1].2
Pursuant to Tennessee Supreme Court Rule 9 §§ 1.3 and 8.3 and Tenn. Code Ann. §
29-9-101 et seq., as well as “the routine and customary practice under those rules and
statutes,” plaintiff alleges that he timely filed a petition for judicial review with the Knox
County Circuit Court [Id. at ¶ 13]. On September 10, 2010, the Circuit Court held that
portions of the hearing panel’s order were not charged in plaintiff’s disciplinary complaint,
2
It appears that the Board endorsed the hearing panel’s judgment as it later requested that the
Tennessee Supreme Court enforce such judgment. See supra, p. 4.
2
dismissed those charges, and ordered a reconsideration of the appropriate discipline [Id. at
¶ 14; Doc. 8-1].
On December 20, 2010, a date on which plaintiff states his new hearing before the
hearing panel was pending, the Tennessee Supreme Court decided Board of Professional
Responsibility of the Tennessee Supreme Court v. Cawood, 330 S.W.3d 608 (Tenn. 2010),
which plaintiff contends “changed the routine and customary practice for obtaining judicial
review in Tennessee disciplinary proceedings” [Doc. 6 ¶ 15]. Plaintiff further contends that
the Tennessee Supreme Court incorporated into Rule 9 §§ 1.3 and 8.3 and Tenn. Code Ann.
§ 27-9-101 et seq. requirements from a different statute, Tenn. Code Ann. § 27-8-101 et seq.,
which “requires writs for constitutional certiorari to be under oath and contain the language
that the petition was the ‘first application for the writ’” [Id. at ¶ 16].
Thereafter, the Board filed a motion, pursuant to Rule 60.02 of the Tennessee Rules
of Civil Procedure, asking the Circuit Court to set aside its order affirming in part and
reversing in part the judgment of the hearing panel on the ground that plaintiff’s petition
failed to satisfy the requirements set forth in Cawood [Id. at ¶ 19; Doc. 8-1]. Plaintiff also
filed a Rule 60.02 motion on February 11, 2011, requesting that the Circuit Court grant
plaintiff relief by setting aside its earlier judgment and allow plaintiff to amend and
supplement his petition to conform to the requirements of Cawood [Doc. 6 ¶ 20].3 On
3
The Court notes that plaintiff alleges that he filed his motion on February 11, 2011, but the
order of enforcement of the Tennessee Supreme Court outlining the events at issue indicates that the
motion was filed on February 18, 2011 [Doc. 8-1].
3
February 18, 2011, the Circuit Court granted the Board’s motion and vacated its judgment,
and denied plaintiff’s motion [Id. at ¶¶ 21, 22]. Consequently, on March 9, 2011, the Board
filed a “Protocol Memorandum” in the Tennessee Supreme Court seeking to enforce its
original judgment and punishment [Id. at ¶ 30]. On March 10, 2011, plaintiff filed an appeal
of the denial of his Rule 60.02 motion, and, on March 14, 2011, he sought a stay of the
enforcement of discipline until the conclusion of his appeal [Id. at ¶ 23; Doc. 8-1]. The
Tennessee Supreme Court denied the request for a stay, but granted plaintiff’s alternative
request for an opportunity to respond to the Board’s proposed order of enforcement [Doc.
8-1]. Plaintiff subsequently filed a “lengthy response to the proposed order of enforcement,
formally raising fifteen issues,” as well as other motions [Id.]. One such motion requested
that the court consolidate plaintiff’s appeal of the February 18, 2011 order of the Circuit
Court with the Board’s request for enforcement [Id.].
Plaintiff informs the Court that he also filed a Rule 60.02 motion with the hearing
panel on February 12, 2011, seeking relief from its judgment and permission to re-file his
petition for judicial review under the requirements of Cawood, alleging that the Tennessee
Rules of Civil Procedure apply to the hearing panel disciplinary proceedings pursuant to Rule
25.1 of the Tennessee Supreme Court [Doc. 6 ¶¶ 24, 25]. On March 4, 2011, the hearing
panel held it did not have jurisdiction to grant plaintiff Rule 60.02 relief [Id. at ¶ 26].
Plaintiff contends that he filed an application for judicial review of that decision, but the
Circuit Court denied judicial review [Id. at ¶¶ 17, 28]. Plaintiff appealed that denial on April
29, 2011 [Id. at ¶ 29].
4
On February 11, 2011 plaintiff filed a request for habeas corpus relief in Knox County
Criminal Court [Doc. 8], requesting relief in the event the Circuit Court granted the Board’s
Rule 60.02 motion and the hearing panel denied plaintiff’s Rule 60.02 motion [Id.]. The
habeas proceeding was dismissed on May 10, 2011 [Id.]. On June 9, 2011, plaintiff filed a
notice of appeal of that order [Id.].
On June 1, 2011, after reviewing “the Board’s proposed order of enforcement,
[plaintiff’s] response, the Board’s reply, [plaintiff’s] motions, and the Board’s responses to
those motions,” the Tennessee Supreme Court issued an order of enforcement, concluding
“that the punishment imposed by the [h]earing [p]anel is neither inadequate nor excessive,
but rather . . . appropriate under the circumstances of this case and consistent with the goal
of attaining uniformity of punishment throughout the State” [Doc. 8-1; Doc. 6 ¶¶ 31, 32].
The Tennessee Supreme Court also entered judgment against plaintiff for approximately
$22,000 in attorney fees “for payment of Disciplinary Counsel’s prosecution of [p]laintiff
that had been reversed by the Circuit Court . . . [and] judicially defaulted by Cawood” [Doc.
8-1; Doc. 6 at ¶ 34]. It declined, plaintiff asserts, to address plaintiff’s claim that the hearing
panel and the subsequent disciplinary proceedings were conducted in violation of plaintiff’s
federal constitutional rights [Doc. 6 ¶ 33].
Plaintiff claims that the State of Tennessee and the Board currently are enforcing
plaintiff’s punishment “under color of Tennessee’s unconstitutional disciplinary
proceedings” [Id. at ¶ 35]. He asserts that the proceedings were quasi-criminal in nature
under In re Ruffalo, 390 U.S. 544 (1968), and are to be conducted in conformity with
5
constitutional due process [Id. at ¶ 36]. He further claims he has exhausted his state-court
remedies [Id. at ¶ 37].
Plaintiff alleges ten “counts” in his amended complaint. Count I alleges that the
practice monitor probation provision violates the Fourth, Fifth, and Fourteenth
Amendments.4 Plaintiff asserts that the Disciplinary Counsel did not request a practice
monitor from the hearing panel, but such condition was included in the hearing panel’s
judgment on its own initiative [Id. at ¶¶ 41, 42]. Plaintiff claims he has never had an
opportunity to be heard on the appointment or duties of a practice monitor [Id. at ¶ 43].
According to plaintiff, the Disciplinary Counsel’s duties are established by Tennessee
Supreme Court Rule § 7.2 and do not include appointing or establishing the duties of a
practice monitor and do not provide that the Disciplinary Counsel may dictate the terms and
conditions of plaintiff’s probation [Id. at ¶ 44]. Nevertheless, plaintiff asserts, defendant
Jones assumed the role of plaintiff’s probation officer without authority and is imposing
conditions upon plaintiff’s probation that have not been ordered by the hearing panel or the
Board, thus violating plaintiff’s rights under the Fourth, Fifth, and Fourteenth Amendments
[Id. at ¶ 45].
Plaintiff claims that he has attempted to obtain information about the practice monitor
provision from defendant Jones, including who the person would be, what the person’s duties
would be, what access the person would have to plaintiff’s office, plaintiff’s clients, attorney-
4
Plaintiff refers to the monitor as both a “probation monitor” and a “practice monitor”
throughout his filings. The term “practice monitor” is used for consistency.
6
client or attorney work product materials, information necessary to determine what plaintiff
does in court or with a client, and what access the person would have when plaintiff is
traveling or working outside of his office [Id. at ¶¶ 49, 50].5 Plaintiff also claims that only
after the filing of the original complaint in this action did defendant Jones inform him that
he would be required to pay for a practice monitor for all of his court appearances and that
plaintiff would not have to share any information with the practice monitor [Id. at ¶ 51].
Plaintiff contends that defendant Jones continues to decline to address the duties of the
practice monitor, both in and out of court [Id.]. Plaintiff asserts that the requirement of
paying a practice monitor to report any ethical violations plaintiff may commit duplicates the
duty of the attorney-judge, co-counsel, and opposing counsel to do the same thing pursuant
to Rule 8 § 8.3 of the Tennessee Supreme Court Rules and takes plaintiff’s property without
due process of law and the right to be heard [Id. at ¶ 52].
In sum, plaintiff alleges that the practice monitor provision invokes significant
constitutional considerations, including invasion of constitutionally protected attorney-client
and work product materials, the duplication of the duty to report misconduct, the taking of
property (the fees for the monitor) without due process of law, and compelled access of
Disciplinary Counsel to plaintiff’s office [Id. at ¶ 53]. He seeks an injunction pursuant to 42
U.S.C. §§ 1983 and 1988 against defendant Jones to preclude defendant Jones from
appointing or dictating the duties of a practice monitor and against Tennessee to provide
5
Some of the details regarding the practice monitor were revealed during the hearing before
this Court on plaintiff’s request for injunctive relief.
7
plaintiff notice and a meaningful opportunity to be heard by a hearing panel on the
appointment and duties of a practice monitor [Id. at ¶¶ 57, 58].
Count II alleges that plaintiff was denied fair notice of the requirements for judicial
review of the hearing panel disciplinary judgment in violation of the Fifth and Fourteenth
Amendments. Plaintiff claims that the Supreme Court’s construction of Tennessee Supreme
Court Rule 9 § 1.3 and Tenn. Code Ann. § 27-9-101 et seq. in Cawood is unconstitutionally
vague as applied to plaintiff and deprived plaintiff of liberty and property without notice and
a meaningful opportunity to be heard [Id. at ¶ 59].
Plaintiff alleges that he followed the “common and routine” practice in place for many
years for obtaining judicial review of the hearing panel’s judgment [Id. at ¶ 60]. Plaintiff
further alleges that Disciplinary Counsel did not raise any objection that would have afforded
plaintiff an opportunity to cure the deficiencies in his complaint, but joined issue with the
merits for plaintiff’s claims for judicial review [Id. at ¶¶ 61, 62]. And plaintiff submits, the
Circuit Court adjudicated plaintiff’s petition on the merits on the record de novo [Id. at ¶¶ 63,
65]. Thus, plaintiff claims that his petition was “as of right” and that any statement that it
was the “first application for a writ” was meaningless [Id. at ¶¶ 64, 66].
Plaintiff further claims that Cawood created a new and unforeseeable interpretation
of Rule 9 § 1.3 [Id. at ¶ 67]. Prior to Cawood, the writ requirements of Tenn. Code Ann. §§
27-8-104 and 27-8-106 did not apply, and were never applied, to attorney discipline appeals
[Id. at ¶ 68]. Plaintiff alleges that the plain language of Rule 9 § 1.3 fails to provide notice
that the requirements established by Cawood would be required for judicial review of hearing
8
panel judgments [Id. at ¶ 69]. Further, Tennessee statutory construction principles failed to
provide notice that the requirements of Cawood would be imposed [Id. at ¶ 70]. Plaintiff also
submits that Disciplinary Counsel was not placed on notice and did not foresee the
requirements imposed by Cawood, and thirty disciplinary appeal cases from 1982 through
2010 did not comport with Cawood’s requirements [Id. at ¶¶ 72, 74]. Plaintiff claims that
he was not seeking a writ, but judicial review of the judgment of the hearing panel, and that
other forms of review of state administrative proceedings do not require the requirements
established in Cawood [Id. at ¶¶ 75, 76].
Accordingly, plaintiff moves the Court to hold that Cawood’s construction of Rule
9 § 1.3 and Tenn. Code Ann. § 27-9-101 et seq. denied plaintiff fair notice of the
requirements for judicial review in violation of the Fifth and Fourteenth Amendments [Id.
at ¶ 77]. He also requests an injunction pursuant to 42 U.S.C. §§ 1983 and 1988 precluding
the application of Cawood to void plaintiff’s favorable judgment reversing the hearing panel
judgment and the denial of plaintiff’s access to Tennessee’s courts [Id. at ¶ 78].
Count III alleges that plaintiff was denied fair notice or that the rule in Cawood was
applied ex post facto in violation of the Fifth and Fourteenth Amendments. Plaintiff claims
that the Cawood decision constituted a change in the common and long-standing procedures
for obtaining judicial review of a hearing panel’s decision [Id. at ¶ 79]. Plaintiff also alleges
that it was decided after his successful judicial review and at a time while plaintiff’s case
remained in the “judicial pipeline” [Id. at ¶ 80]. Thus, he claims, retroactive application of
Cawood deprived him of a prior favorable judgment in violation of the ex post facto clause
9
set forth in Article I, Section 9, Clause 3 of the Constitution and the right to fair notice found
in the Fifth, Sixth, and Fourteenth Amendments [Id. at ¶¶ 81, 82]. Plaintiff moves for the
Court to hold that Cawood cannot be retroactively applied to void plaintiff’s favorable
judgment or prevent plaintiff from having access to Tennessee’s courts [Id. at ¶ 83]. He
seeks an injunction pursuant to 42 U.S.C. §§ 1983 and 1988 precluding Tennessee from
applying Cawood to void plaintiff’s favorable judgment and denying him access to the courts
[Id. at ¶ 84].
Count IV alleges that plaintiff was denied his right to petition for redress of grievances
in violation of the First and Fourteenth Amendments. Plaintiff claims that application of
Cawood to void his favorable judgment denied him his First Amendment right to petition for
redress of grievances, which is made applicable to Tennessee by the Fourteenth Amendment
[Id. at ¶¶ 85, 86]. He moves the Court to hold that Cawood cannot be applied to void his
favorable judgment or to deny him access to Tennessee’s courts [Id. at ¶ 87]. He seeks an
injunction pursuant to 42 U.S.C. §§ 1983 and 1988 precluding Tennessee from applying
Cawood to void plaintiff’s favorable judgment and denying him access to the courts [Id. at
¶ 88].
Count V alleges that plaintiff was denied his right to due process notice and a
meaningful opportunity to be heard in violation of the Fifth and Fourteenth Amendments.
Plaintiff claims that four of the hearing panel’s findings were not charged in the petitions and
did not comply with plaintiff’s Fifth and Fourteenth Amendment rights to due process and
notice and a meaningful opportunity to be heard [Id. at ¶ 89]. He submits that the Circuit
10
Court opinion found that plaintiff was not provided notice of the most serious misconduct
found by the hearing panel—that plaintiff did not obtain a written waiver or acknowledgment
of potential conflicts of interest from his client in United States v. Vassar—in the Board’s
petition for discipline [Id. at ¶ 90]. Plaintiff contends that, in fact, he did obtain such a
waiver and such was filed with the hearing panel [Id. at ¶ 91].
Plaintiff alleges that the hearing panel made its decision on the basis of eight
numbered acts of misconduct listed for the first time in the proposed findings and
conclusions of law filed after the December 20, 2009 hearing [Id. at ¶ 94]. And its judgment
divided those eight acts of misconduct into ten allegations of misconduct [Id. at ¶ 95].
Plaintiff claims that eight of those ten allegations of misconduct did not provide plaintiff
Fifth and Fourteenth Amendment due process notice or a meaningful opportunity to be heard
[Id. at ¶ 96]. Further, although the hearing panel found in plaintiff’s favor on five of the
Disciplinary Counsel’s charges, it based its decision on four of those allegations of
misconduct [Id. at ¶¶ 97, 98].
On review, the Circuit Court determined that two of the findings of misconduct were
not charged in the petition against plaintiff, reversed the hearing panel’s punishment, and
remanded the case back to the hearing panel [Id. at ¶ 99]. Plaintiff contends that he was
denied due process notice and a meaningful opportunity to be heard on four of the five acts
of misconduct in violation of the Fifth and Fourteenth Amendments as a result of Cawood
[Id. at ¶¶ 102, 103]. He accordingly moves the Court to hold that Cawood cannot be
retroactively applied to void plaintiff’s favorable judgment and keep plaintiff from having
11
access to Tennessee’s courts [Id. at ¶ 104]. He seeks an injunction pursuant to 42 U.S.C. §§
1983 and 1988 precluding Tennessee from applying Cawood to void plaintiff’s favorable
judgment and denying him access to the courts [Id. at ¶ 105].
Count VI alleges that plaintiff was denied his right to due process and a fair hearing
and is being punished for conduct for which he is actually innocent of committing based on
a mistake of the hearing panel in violation of the Fifth, Sixth, and Fourteenth Amendments.
Plaintiff claims that the hearing panel found that plaintiff violated Rule 1.7 of the Rules of
Professional Conduct by not obtaining a written waiver and acknowledgment regarding
conflicts from Michael Vassar, but that such was a mistake because the hearing panel
overlooked the exhibit containing the waiver that was introduced at the hearing [Id. at ¶¶ 106,
107]. Plaintiff asserts that the Circuit Court reversed the hearing panel’s finding because it
was not charged in the petition for discipline [Id. at ¶ 108].
Plaintiff thus claims he is being punished for conduct of which he is innocent in
violation of due process of law and the opportunity to be heard as a result of Cawood in
violation of the Fifth, Sixth, and Fourteenth Amendments [Id. at ¶¶ 109, 110]. He moves the
Court to hold that Cawood cannot be retroactively applied to void plaintiff’s favorable
judgment and keep plaintiff from having access to Tennessee’s courts [Id. at ¶ 111]. He
seeks an injunction pursuant to 42 U.S.C. §§ 1983 and 1988 precluding Tennessee from
applying Cawood to void plaintiff’s favorable judgment and denying him access to the courts
[Id. at ¶ 112].
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Count VII alleges that plaintiff was denied his right to confrontation in violation of
the Sixth and Fourteenth Amendments. Plaintiff claims the hearing panel considered facts
and opinions from statements made out of court by Judge Greer, Judge Workman, Judge
Collier, and the Sixth Circuit, all of whom did not testify and were not available for crossexamination [Id. at ¶ 113]. Plaintiff contends their statements were testimonial in nature and
were hearsay and consideration of such violated his Sixth and Fourteenth Amendment right
to confrontation [Id. at ¶ 114]. Plaintiff also alleges that, over plaintiff’s objection, the
hearing panel “permitted an agent of the FBI to testify for the [Board] after the [g]overnment
denied [p]laintiff’s CFR request, which deprived [p]laintiff of a meaningful opportunity to
establish bias” on cross-examination [Id. at ¶ 115].
Plaintiff thus claims that his liberty to practice law has been unconstitutionally taken
from him by a decision of the hearing panel that considered facts and opinions from out-ofcourt declarants for which plaintiff was denied the right of confrontation and crossexamination [Id. at ¶ 116]. He requests the Court to hold that Cawood cannot be applied to
prevent plaintiff from having access to Tennessee’s courts [Id. at ¶ 117]. He seeks an
injunction pursuant to 42 U.S.C. §§ 1983 and 1988 precluding Tennessee from applying
Cawood to deny plaintiff access to the courts [Id. at ¶ 118].
Count VIII alleges that plaintiff was denied his right to equal protection of the law in
violation of the Fifth and Fourteenth Amendments. Plaintiff alleges that Tennessee law
provides that the Tennessee Rules of Civil Procedure applied to plaintiff’s disciplinary
proceedings and thus provided him a right to move to correct the judgment pursuant to Rules
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52.02, 54.02, 59.04, and 60 [Id. at ¶¶ 119, 120]. Plaintiff further alleges that he filed timely
motions pursuant to those rules and the hearing panel held that it did not have jurisdiction to
grant his post-judgment motions [Id. at ¶¶ 121, 122].
On judicial review, the Circuit Court held that the hearing panel’s failure to consider
plaintiff’s post-judgment motions was harmless error because the Circuit Court would review
those errors [Id. at ¶ 123]. In reviewing such, the Circuit Court reversed the hearing panel
on two of plaintiff’s post-judgment claims [Id. at ¶ 124]. After the Circuit Court judgment
was judicially defaulted, however, plaintiff claims it was no longer able to review the errors
[Id. at ¶ 125].
Plaintiff filed a Rule 60.02 motion for the hearing panel to correct its denial of
plaintiff’s post-judgment motions, but the hearing panel again held that it did not have
jurisdiction to do so [Id. at ¶¶ 126, 127]. Plaintiff alleges that the Circuit Court granted the
Board’s Rule 60.02 motion and voided its judgment, a decision plaintiff appealed to the
Tennessee Supreme Court [Id. at ¶ 128]. Plaintiff claims that the Tennessee courts afforded
the Board the right to correct a judgment pursuant to Rule 60.02 but denied plaintiff his
constitutional right to equal protection of the laws by denying him consideration of timely
and proper motions to correct errors made by the hearing panel and the opportunity to
comply with Cawood’s new rule [Id. at ¶¶ 129, 130]. Plaintiff thus moves the Court to hold
that Cawood cannot be applied to deny plaintiff due process or equal protection of
Tennessee’s rules and statutes [Id. at ¶ 131]. He seeks an injunction pursuant to 42 U.S.C.
14
§§ 1983 and 1988 precluding application of Cawood to deny plaintiff due process or the
equal protection of Tennessee’s rules and statutes [Id. at ¶ 132].
Count IX alleges that plaintiff was denied the rights provided by Tennessee pursuant
to the Rules of Civil Procedure in violation of the Fifth and Fourteenth Amendments.
Plaintiff alleges that Tennessee law provided him a right to a one-level appeal from the
Circuit Court judgment denying his Rule 60.02 motion and from the Circuit Court affirming
the hearing panel’s decision to deny plaintiff Rule 60.02 relief [Id. at ¶¶ 133, 134]. Plaintiff
claims he was denied such right in violation of the Fifth and Fourteenth Amendment rights
to due process of law and equal protection of Tennessee’s law [Id. at ¶ 137]. He moves the
Court to hold that Cawood cannot be applied to deny plaintiff due process or equal protection
of Tennessee’s rules and statutes [Id. at ¶ 138]. He seeks an injunction pursuant to 42 U.S.C.
§§ 1983 and 1988 precluding application of Cawood to deny plaintiff due process or the
equal protection of Tennessee’s rules and statutes [Id. at ¶ 139].
Count X alleges that plaintiff was denied the right to present a complete defense.
Plaintiff alleges that he had a constitutional right to present a complete defense in the quasicriminal disciplinary proceeding [Id. at ¶ 140]. He submits that he presented several defenses
that were not considered by the hearing panel [Id. at ¶ 141]. He also submits that the judicial
default created by Cawood denied him the opportunity to present a complete defense with
respect to the hearing panel’s decision [Id. at ¶ 142]. Plaintiff accordingly moves the Court
to hold that Cawood cannot be applied to deny plaintiff his right to present a complete
defense for relief from the hearing panel’s judgment and requests an injunction pursuant to
15
42 U.S.C. §§ 1983 and 1988 precluding application of Cawood to deny plaintiff the right to
present a complete defense [Id. at ¶¶ 144, 145].
Count XI alleges that a judgment for $22,000 in attorney fees for the Disciplinary
Counsel was entered against him as a result of Cawood and plaintiff being denied access to
Tennessee courts [Id. at ¶ 146]. He further alleges that, but for Cawood, he may have been
entitled to an award of attorney fees [Id. at ¶ 147]. Plaintiff therefore moves the Court to
hold that Cawood cannot be relied upon by Tennessee to collect a judgment against him for
attorneys fees for the Disciplinary Counsel [Id. at ¶ 148]. He seeks an injunction pursuant
to 42 U.S.C. §§ 1983 and 1988 precluding application of Cawood to take plaintiff’s property
without providing plaintiff access to the Tennessee courts [Id. at ¶ 149].
In light of these claims, and for his ultimate relief, plaintiff requests that the Court take
the following action:
1.
hold that Tennessee’s construction in Cawood of Rule 9 § 1.3 and Tenn. Code
Ann. § 27-9-101 et seq. for the requirements for judicial review of the hearing
panel’s judgment is unconstitutional;
2.
issue an injunction that Tennessee cannot apply the unconstitutional
construction in Cawood of Rule 9 § 1.3 and Tenn. Code Ann. § 27-9-101 et
seq. to deny plaintiff the benefit of the favorable judgment plaintiff obtained
overruling the hearing panel’s judgment;
3.
issue an injunction that Tennessee cannot apply the unconstitutional
construction in Cawood of Rule 9 § 1.3 and Tenn. Code Ann. § 27-9-101 et
seq. to deny plaintiff the benefit of Tennessee’s rules and statutes to obtain
relief from the hearing panel’s judgment; and
4.
issue an injunction against Nancy S. Jones to preclude her from appointing or
dictating the duties of a practice monitor.
[Doc. 6].
16
In the alternative, plaintiff requests a writ of habeas corpus freeing plaintiff from the
restraints on his liberty to practice law pursuant to Tennessee’s unconstitutional construction
in Cawood of Rule 9 § 1.3 and Tenn. Code Ann. § 27-9-101 et seq. that judicially defaulted
plaintiff’s favorable judgment reversing the hearing panel’s judgment and denying plaintiff
relief under Tennessee’s rules and statutes [Id.].
At the same time plaintiff commenced this action, plaintiff filed an Application for
Temporary Restraining Order on Notice pursuant to Rule 65 of the Federal Rules of Civil
Procedure [Doc. 2]. Pursuant to his request for injunctive relief, plaintiff seeks:
1.
to return to the active practice of law prior to the expiration of the
current 45-day suspension, which expires July 28, 2011; and
2.
to prohibit Disciplinary Counsel Jones from appointing or dictating the
duties of a practice monitor prior to the Board providing plaintiff notice
and a meaningful opportunity to be heard on the appointment and duties
of the practice monitor
[Id.]. Plaintiff subsequently amended this request to request a “temporary injunction” in
addition to temporary restraining order [Doc. 10].
II.
Analysis
Rule 65 of the Federal Rules of Civil Procedure permits a party to seek injunctive
relief if he believes he will suffer irreparable harm or injury during the pendency of the
action. Fed. R. Civ. P. 65. A temporary restraining order “is meant to preserve the status
quo until a court can make a reasoned resolution of a dispute.” Black v. Cincinnati Fin.
Corp., No. 1:11-CV-210, 2011 WL 1640962, at *1 (S.D. Ohio May 2, 2011) (citing Procter
& Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226 (6th Cir. 1996)). A temporary
17
restraining order may be issued without notice to the adverse party and is of short duration
(generally no more than fourteen days), tending to terminate with a ruling on a preliminary
injunction. Id. (citing Workman v. Bredesen, 486 F.3d 896, 922 (6th Cir. 2007)); Fed. R.
Civ. P. 65(b). If a defendant is on notice, however, a request for a temporary restraining
order may be treated as a motion for a preliminary injunction. Id.; Fed. R. Civ. P. 65(a)(1).
Although he initially requested a temporary restraining order on notice, plaintiff later
recognized the distinction between a temporary restraining order and a preliminary injunction
and, pursuant to his amended request for injunctive relief [Doc. 10], requested a “temporary
injunction” in addition to a temporary restraining order because defendants were put on
notice.
Whether treated as a motion for a temporary restraining order or a
temporary/preliminary injunction, however, in determining whether to grant plaintiff’s
request for injunctive relief the Court must consider four factors: (1) whether the movant
would suffer irreparable harm without the injunction; (2) whether issuance of the injunction
would cause substantial harm to others; (3) whether the public interest would be served by
the issuance of the injunction; and (4) whether the movant has demonstrated a strong
likelihood of success on the merits. Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305
F.3d 566, 573 (6th Cir. 2002) (citation omitted); Tumblebus, Inc. v. Cranmer, 399 F.3d 754,
760 (6th Cir. 2005) (citing PACAAR Inc. v. TeleScan Techs., L.L.C., 319 F.3d 243, 249 (6th
Cir. 2003)). The factors are to be balanced and are “not prerequisites that must be met.”
Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th
18
Cir. 2007) (citation omitted). A stronger showing of likelihood of success on the merits is
required if the other factors militate against granting relief, but a lesser showing of likelihood
of success on the merits is required when the other factors support granting relief.
Performance Unlimited, Inc. v. Questar Publ’rs, Inc., 52 F.3d 1373, 1385–86 (6th Cir. 1995)
(citations omitted). Further, “a district court is not required to make specific findings
concerning each of the four factors . . . if fewer factors are dispositive of the issue.” Jones
v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003).
A.
A.
Likelihood of Success on the Merits
Defendants assert various reasons why plaintiff has not, and apparently cannot, show
a strong likelihood of success on the merits. For the reasons that follow, the Court agrees.
1.
Eleventh Amendment Immunity
Defendants contend that plaintiff is not likely to succeed on the merits because two
defendants—the State of Tennessee and the Board—should be dismissed from this action as
a result of having immunity under the Eleventh Amendment. The Eleventh Amendment
provides that “[t]he Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI. The Supreme Court has made clear that sovereign immunity extends to actions
brought against a state by its own citizens, as well as against “‘state instrumentalities’ [or]
. . . those government entities that act as ‘arm[s] of the State.” S.J. Hamilton Cnty., 374 F.3d
416, 419 (6th Cir. 2004) (citations omitted); see also Hans v. Louisiana, 134 U.S. 1, 15
19
(1890). The immunity is far reaching—it extends to “all suits, whether for injunctive,
declaratory or monetary relief.” Thiokol Corp. v. Dep’t of Treasury, 987 F.2d 376, 381 (6th
Cir. 1993) (citation omitted).
Although it is without question that sovereign immunity applies with respect to
defendant the State of Tennessee, whether the Board is entitled to immunity requires more
consideration. In Tennessee, “[i]t is well settled that the licensing and regulation of attorneys
practicing law in courts of Tennessee is squarely within the inherent authority of the judicial
branch of government.” Smith v. Cnty. Educ. Ass’n v. Anderson, 676 S.W.2d 328, 333
(Tenn. 1984) (citation omitted). Furthermore, the “Supreme Court has original and exclusive
jurisdiction to promulgate its own [r]ules,” and “[i]ts rule making authority embraces the
admission and supervision of members of the Bar of the State of Tennessee.” Id. (citation
omitted). Pursuant to that power, the Tennessee Supreme Court created the Board, which
it has described as its agency. Danner v. Bd. of Prof’l Responsibility of the Tenn. Supreme
Court, 277 F. App’x 575, 578 (6th Cir. 2008) (citations omitted); Doe v. Bd. of Prof’l
Responsibility of the Supreme Court of Tenn., 104 S.W.3d 465, 470, 472, 474 (Tenn. 2003)
(citation omitted); Brown v. Bd. of Prof’l Responsibility of the Supreme Court of Tenn., 29
S.W.3d 445, 449 (Tenn. 2000) (citation omitted). Accordingly, the Court finds that
defendants the State of Tennessee and the Board most likely are entitled to Eleventh
Amendment immunity. Accord Warren v. Burdi, No. 10-11775, 2011 WL 572424, at
*15–17 (E.D. Mich. Jan. 26, 2011) (finding that the Michigan Attorney Grievance
Commission is an arm of the Michigan Supreme Court, which is immune pursuant to the
20
Eleventh Amendment, and thus “entitled to Eleventh Amendment immunity in discharging
its ‘constitutional responsibility’ to supervise and discipline attorneys”); Quatkemeyer v. Ky.
Bd. of Med. Licensure, No. 3:09-CV-746, 2010 WL 774195, at *4 (W.D. Ky. Feb. 26, 2010)
(noting that “the Sixth Circuit has repeatedly held that boards created by a state to review
professional conduct and licensing are entitled to Eleventh Amendment immunity” and citing
examples); Butcher v. Mich. Supreme Court, No. 07-14940, 2008 WL 2067028, at *2 (E.D.
Mich. May 15, 2008) (finding that the plaintiff’s claim against the Michigan Supreme Court,
the Michigan Attorney Grievance Commission, and the Michigan Attorney Discipline Board
for injunctive relief from an order suspending his license to practice law issued by a hearing
panel for the Michigan Attorney Discipline Board barred by the Eleventh Amendment).
“There are[, however,] three exceptions to a State’s sovereign immunity: (a) when the
State has consented to suit; (b) when the exception first set forth in Ex Parte Young, 209 U.S.
123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), applies; and (c) when Congress has properly
abrogated a State’s immunity.” S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir.
2008) (citation omitted). None of the exceptions applies to defendants the State of Tennessee
or the Board. First, neither defendant has consented to suit; indeed, defendants raised the
Eleventh Amendment in opposition to plaintiff’s motion for injunctive relief. Second, the
Ex Parte Young exception, which provides that “a federal court can issue prospective
injunctive and declaratory relief compelling a state official to comply with federal law,” id.
(citation omitted), does not apply because neither the State of Tennessee nor the Board is a
21
state official.6 Third, Congress has not abrogated the State of Tennessee’s immunity. See,
e.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (noting that a state is not a
person under 42 U.S.C. § 1983).
The Court pauses to address plaintiff’s points regarding the Eleventh Amendment.
Plaintiff argues that Whitfield v. Tennessee, 639 F.3d 253, 257 (6th Cir. 2011), held that the
State of Tennessee, the Tennessee Department of Mental Health and Developmental
Disabilities (“DMHDD”), and the commissioner of DMHDD “were properly named
defendants for injunctive relief under the ADA” [Doc. 9]. Plaintiff, however, misreads
Whitfield. The Sixth Circuit held, instead, that the plaintiff’s complaint contained an Ex
Parte Young action for reinstatement pursuant to Title I of the ADA because it construed the
complaint as suing the commissioner in her official capacity and seeking reinstatement. 639
F.3d at 257. It did not hold that the State of Tennessee or DMHDD were properly named
defendants or that they could be enjoined. In addition, the Court finds plaintiff’s reference
to Skinner v. Switzer, 131 S. Ct. 1289 (2011), and the contention that the Supreme Court
“clearly approved injunctive relief to Texas state officials under § 1983,” inapposite [Doc.
9].7
6
The Court notes that, with respect to defendant Jones, who presumably is sued in her official
capacity, the exception set forth in Ex Parte Young seems to apply as plaintiff seeks prospective
injunctive relief against her.
7
In his reply, plaintiff argues that defendants fail to distinguish Skinner, where the Supreme
Court “clearly approved injunctive relief to Texas state officials under § 1983” [Doc. 9]. The Court
finds Skinner inapposite because it did not address whether the State of Texas or any agency or arm
of the State of Texas was entitled to Eleventh Amendment immunity.
22
In conclusion, the Court finds that defendants the State of Tennessee and the Board
most likely are entitled to Eleventh Amendment immunity, which compels the additional
finding that plaintiff is not likely to succeed on the merits of his claims against them.
2.
Subject-Matter Jurisdiction
Defendants assert that plaintiff is not likely to succeed on the merits because the Court
lacks subject-matter jurisdiction under the Rooker-Feldman doctrine. In Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923), the Supreme Court held that, pursuant to 28 U.S.C. § 1257,
federal district courts lack subject-matter jurisdiction to directly review state-court decisions.8
It later reaffirmed this holding in District of Columbia Court of Appeals v. Feldman, 460 U.S.
462 (1983), a case where “the plaintiff challenged the District of Columbia’s rule for bar
admission in the district court after being denied permission to sit for examination by the
8
Section 1257 provides:
(a) Final judgments or decrees rendered by the highest court of a State in which a
decision could be had, may be reviewed by the Supreme Court by writ of certiorari
where the validity of a treaty or statute of the United States is drawn in question or
where the validity of a statute of any State is drawn in question on the ground of its
being repugnant to the Constitution, treaties, or laws of the United States, or where
any title, right, privilege, or immunity is specially set up or claimed under the
Constitution or the treaties or statutes of, or any commission held or authority
exercised under, the United States.
(b) For the purposes of this section, the term “highest court of a State” includes the
District of Columbia Court of Appeals.
28 U.S.C. § 1257.
23
District of Columbia Court of Appeals.” Coleman v. Governor of Mich., 413 F. App’x 866,
870 (6th Cir. 2011) (citing Feldman, 460 U.S. at 468–69). In Feldman, the district court
dismissed the plaintiff’s claim for lack of subject-matter jurisdiction and the Supreme Court
affirmed, finding that “[i]f the constitutional claims presented to a United States District
Court are inextricably intertwined with the state court’s denial [of a claim] in a judicial
proceeding . . . then the District Court is in essence being called upon to review the state
court decision,” which the district court may not do. Feldman, 460 U.S. at 482 n.16.
Together, these decisions are referred to as the Rooker-Feldman doctrine, which precludes
federal district courts from reviewing state-court decisions. Coleman, 413 F. App’x at 870;
see also In re Cook, 551 F.3d 542, 548 (6th Cir. 2009) (“The Rooker-Feldman doctrine
embodies the notion that appellate review of state court decisions and the validity of state
judicial proceedings is limited to the Supreme Court . . . and thus that federal district courts
lack jurisdiction to review such matters.” (footnote omitted)).
In Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 283–84 (2005),
the Supreme Court noted that some federal courts had extended the doctrine “far beyond the
contours of the Rooker and Feldman cases” and narrowed the doctrine to apply only to those
“cases of the kind from which the doctrine acquired its name: cases brought by state-court
losers complaining of injuries caused by state-court judgments rendered before the district
court proceedings commenced and inviting district court review and rejection of those
judgments.” When an individual, however, makes a claim independent from the state
proceeding, “albeit one that denies a legal conclusion that a state court has reached in a case
24
to which he was a party,” the Supreme Court indicated that such does not strip the court of
subject-matter jurisdiction “and state law determines whether the defendant prevails under
principles of preclusion.” Id. at 293. The Supreme Court also reiterated that “a district court
could not entertain constitutional claims attacking state-court judgments . . . when the
constitutional attack was ‘inextricably intertwined’ with the state court’s judgment.” Id. at
286 n.1 (citing Feldman, 460 U.S. at 482 n.16).
The Sixth Circuit correspondingly “distinguished between plaintiffs who bring an
impermissible attack on a state court judgment—situations in which Rooker-Feldman
applies—and plaintiffs who assert independent claims before the district court—situations
in which Rooker-Feldman does not apply.” Kovacic v. Cuyahoga Cnty. Dep’t of Children
and Family Srvs., 606 F.3d 301, 309 (6th Cir. 2010) (citations omitted). It has explained that
the relevant inquiry is whether the “source of the injury” upon which the plaintiff bases his
federal claim is the state-court judgment, “not simply whether the injury complained of is
‘inextricably intertwined’ with the state-court judgment.” Id. (discussing McCormick v.
Braverman, 451 F.3d 382, 394–95 (6th Cir. 2006)).
Rather, the term “inextricably
intertwined,” it has noted, “describes the conclusion that a claim asserts an injury whose
source is the state court judgment, a claim that is thus barred by Rooker-Feldman.” Id. at 310
(citing McCormick, 451 F.3d at 394–95); see also In re Cook, 551 F.3d at 548 (stating that
“the pertinent question in determining whether a federal district court is precluded under the
Rooker-Feldman doctrine from exercising subject-matter jurisdiction over a claim is whether
25
the source of the injury upon which plaintiff bases his federal claim is the state court
judgment” (citation and internal quotation marks omitted)).
Very recently, on March 7, 2011, the Supreme Court again addressed the RookerFeldman doctrine. In Skinner v. Switzer, 131 S. Ct. 1289 (2011), a state prisoner, who had
been convicted of capital murder and sentenced to death, filed a section 1983 action, alleging
that the district attorney’s refusal to allow him access to biological evidence for purposes of
DNA testing violated his right to due process. Prior to his section 1983 action, however,
plaintiff twice unsuccessfully sought relief in state court and appealed to the Texas Court of
Criminal Appeals pursuant to Article 64, a statute allowing prisoners to gain post conviction
DNA testing in limited circumstances. 131 S. Ct. at 1295.
The district court dismissed Skinner’s section 1983 action, observing that post
conviction requests for DNA evidence are cognizable only in habeas corpus, and the Fifth
Circuit affirmed. Id. at 1296. The Supreme Court, however, reversed. In doing so, the
Supreme Court addressed an argument raised by the district attorney: whether “Skinner’s
challenge is ‘[j]urisdictionally [b]arred’ by . . . the Rooker-Feldman doctrine.” Id. at 1297.
After a discussion of the Supreme Court’s previous decisions regarding the RookerFeldman doctrine, the Supreme Court reiterated that the doctrine occupies a “narrow ground”
and “is confined to cases of the kind from which the doctrine takes its name: cases brought
by state-court losers . . . inviting district court review and rejection of [the state court’s]
judgments.” Id. (citing Exxon Mobile, 544 U.S. at 284) (internal quotation marks omitted).
It then found that Skinner’s litigation “encounter[ed] no Rooker-Feldman shoal” because he
26
did not “challenge the adverse [Texas Court of Criminal Appeals] decisions themselves;
instead, he target[ed] as unconstitutional the Texas statute they authoritatively construed.”
Id. at 1297–98. In so deciding, the Supreme Court noted that Exxon Mobil explained that “a
state-court decision is not reviewable by lower federal courts, but a statute or rule governing
the decision may be challenged in a federal action.” Id. at 1298.
Before the Court turns to its analysis of the Rooker-Feldman doctrine to this case, it
notes that if defendants the State of Tennessee and the Board would be dismissed pursuant
to the Eleventh Amendment, then very little would remain of plaintiff’s complaint.
Defendant made this point during the hearing and plaintiff never opposed it. Indeed, it
seems, at best, only plaintiff’s claim that the practice monitor probation provision violates
the Fourth, Fifth, and Fourteenth Amendments (Count I) would survive.
With respect to Count I, the Court appears to lack subject-matter jurisdiction over the
claim because it directly challenges the decision of the hearing panel imposing upon plaintiff
the condition of a practice monitor, which was adopted by the Tennessee Supreme Court in
its June 1, 2011 order of enforcement, a final decision that was rendered before this action
was commenced. The Rooker-Feldman doctrine would expressly prohibit review of this
claim because it invites this Court to review and reject the decision to impose the practice
monitor. Thus, if the Court were to find that Eleventh Amendment immunity applies as
discussed above, then a finding that the Court lacks subject-matter jurisdiction over Count
I would seem to address the entirety of plaintiff’s complaint. Consequently, the Court
concludes that plaintiff’s likelihood of success on the merits is very slim.
27
Assuming that the defendants the State of Tennessee and the Board are not entitled
to Eleventh Amendment immunity or that granting immunity would not eradicate most of
plaintiff’s claims, the Court turns to whether it would have subject-matter jurisdiction over
the remaining claims.9 Although there are ten additional claims, they are, for purposes of this
discussion, one in the same because they assert one proposition, which plaintiff clarified (and
repeated multiple times) during the hearing: whether Supreme Court Rule 9 § 1.3 and Tenn.
Code Ann. § 27-9-101 as applied in Cawood and the May 2, 2011 amendment to Rule 9 §
1.3, adding the Cawood requirements to that rule, are unconstitutional as applied to plaintiff
in the state-court proceedings related to his current suspension [See also Doc. 14 (setting
forth this challenge)].
Plaintiff’s claim is an “as applied” challenge and is therefore likely barred by the
Rooker-Feldman doctrine. See Coleman, 413 F. App’x at 871–72 (providing examples of
“as applied” challenges and applying the Rooker-Feldman doctrine to the plaintiffs’ “as
applied” constitutional challenges to a provision of Michigan law); Loriz v. Connaughton,
233 F. App’x 469, 475 (6th Cir. 2007) (applying the Rooker-Feldman doctrine because the
relief sought by plaintiffs—“a declaration that the state courts reached an improper result
based on a faulty application of the law—is not a general challenge to the constitutionality
9
The Court notes that the day after the hearing regarding plaintiff’s request for injunctive
relief, plaintiff filed a motion to amend the complaint to name “proper parties” and “for declaratory
relief,” recognizing that he “now understands that the Board . . . [and the State of Tennessee],
although [proper parties] for the habeas corpus relief sought, [are] not a ‘person’ under § 1983”
[Doc. 14]. Accordingly, the Court finds it appropriate to consider whether it would have subjectmatter jurisdiction over the entirety of plaintiff’s complaint.
28
of the state law, but rather a specific grievance over specific decisions”); Berry v. Schmitt,
No. 3:09-60-DCR, 2011 WL 1376280, at *2–4 (E.D. Ky. Apr. 12, 2011) (applying the
Rooker-Feldman doctrine to plaintiff’s as applied challenge to a Supreme Court Rule because
it would require the court to conduct a detailed review of the Inquiry Commission’s decision
that he violated that rule).
Plaintiff’s source of injury here, at heart, originates from the Circuit Court’s
application of Cawood to plaintiff, and plaintiff, although not expressly, calls upon the Court
to determine that such application was improper. Indeed, plaintiff is launching a direct attack
on the decision applying Cawood, which he claims stripped him of his “favorable judgment”
reversing part of the hearing panel’s disciplinary decision. The hearing panel’s disciplinary
decision was put into effect by the Tennessee Supreme Court’s June 1, 2011 order of
enforcement, thus making the source of his injury and his constitutional challenge
“inextricably intertwined” with that final order.10
Plaintiff, consequently, is a state-court loser complaining of an injury caused by a
state-court decision and is inviting this Court to review and reject that decision. Indeed,
during the hearing, plaintiff outlined for the Court how a favorable judgment in this case
would void or vacate the decision applying Cawood and how he would return to state court
10
Although plaintiff’s allegations have been compressed into one point—whether Supreme
Court Rule 9 § 1.3 and Tenn. Code Ann. § 27-9-101 as applied in Cawood and the May 2, 2011
amendment to Rule 9 § 1.3, adding the Cawood requirements to that rule, are unconstitutional as
applied to plaintiff—the Court notes that all of the various unconstitutional conduct complained of
by plaintiff in the amended complaint is “inextricably intertwined” with the Tennessee Supreme
Court’s June 1, 2011 order of enforcement finalizing plaintiff’s discipline.
29
to challenge that decision under Rule 60.02 of the Tennessee Rules of Civil Procedure.
Although plaintiff has been quite careful in not requesting that this Court review or reverse
any state-court decision, “the Court cannot allow artful pleading or argument to obscure what
the practical effect of any potential judgment would be—a review and modification of the
[decision applying Cawood].” Brown v. Bowman, No. 1:09-CV-346, 2011 WL 1296274, at
*9–10 (N.D. Ind. Mar. 31, 2011) (applying the Rooker-Feldman doctrine to preclude review
of the plaintiff’s section 1983 claims, which the court found were inextricably intertwined
with an order of the Indiana Supreme Court finding that the plaintiff was not eligible for
admission to the bar and would require the court to confirm or reject that court’s judgment).
In addition, it appears that it is possible to distinguish Skinner, the case upon which
plaintiff primarily relies, from the instant case. In Skinner, the Supreme Court noted that
Skinner did “not challenge the prosecutor’s conduct or the decisions reached by the [Texas
Court of Criminal Appeals] in applying Article 64 to his motions; instead he challenge[d] as
denying him procedural due process, Texas’ post conviction DNA statute ‘as construed’ by
the Texas courts.” Skinner, 131 S. Ct. at 1296. Plaintiff, it seems, falls into the former as
opposed to the latter category. He does not challenge Rule 9 § 1.3 as unconstitutional in
general, as Skinner challenged the Texas’ post conviction DNA statute. Rather, he makes
a challenge of the law as applied to him, and only him.
30
Finally, although plaintiff indicated that he was not challenging Cawood itself, even
if he were,11 the Court would find that such challenge also would be barred by the RookerFeldman doctrine. The Supreme Court has ruled that the Rooker-Feldman doctrine does not
apply where the plaintiff was not a party to the state-court proceeding with which his current
federal claims are inextricably intertwined unless the party directly attacks the judgment. See
Johnson v. De Grandy, 512 U.S. 997, 1005–06 (1994).
In sum, it seems that this Court lacks subject-matter jurisdiction over all of plaintiff’s
claims under the Rooker-Feldman doctrine.12 To that extent, plaintiff’s relief would lie with
the United States Supreme Court; although plaintiff asserts he has no chance of succeeding
if he were to file a petition for writ of certiorari with respect to the Tennessee Supreme
Court’s order enforcing the Board’s disciplinary findings in that court, his assessment does
not dictate a different result. Hence, the Court concludes that plaintiff is not likely to succeed
on the merits of his claims.13
11
The Court notes that, in the amended complaint, plaintiff asks this Court “to hold that
Tennessee’s construction in Cawood of Rule 9, § 1.3 and T.C.A. § 27-9-101 et seq. for the
requirements for judicial review of the [h]earing [p]anel’s judgment is unconstitutional” [Doc. 6].
Depending upon one’s reading of this request, it could be construed as challenging Cawood itself.
12
The Court notes that defendants have not asked the Court to dismiss this action, but
consider their arguments only in the context of whether plaintiff is likely to succeed on the merits
of his claims. The Court also recognizes that a finding that the Court lacks subject-matter
jurisdiction would compel dismissal, even sua sponte, but it declines to do so at this time given the
procedural posture of the case and the Court’s review of the jurisdictional issue within the context
of the factors related to plaintiff’s request for injunctive relief.
13
Without ruling on plaintiff’s motion to amend, the Court notes that the substance of that
motion does not change the Court’s conclusion that it is unlikely that it has subject-matter
jurisdiction over this action and that, therefore, plaintiff is not likely to succeed on the merits of his
claims.
31
3.
Younger Abstention
Defendants argue that, with respect to plaintiff’s petition for habeas corpus, the
abstention doctrine derived from Younger v. Harris, 401 U.S. 37 (1971), poses an additional
bar to plaintiff’s likelihood of success. “In Younger, the United States Supreme Court
counseled federal courts to abstain from enjoining certain pending state court criminal
proceedings.” Danner, 277 F. App’x at 576. The doctrine has been extended to apply to
both ongoing state civil and administrative proceedings. Id. at 578 (citations omitted).
Pursuant to the doctrine, a federal court should abstain when three criteria are met:
(1) the underlying proceedings constitute an ongoing state judicial proceeding;
(2) the proceedings implicate important state interests; and (3) there is an
adequate opportunity to raise constitutional challenges in the course of the
underlying proceeding.
Id. (citing Loch v. Watkins, 337 F.3d 574, 578 (6th Cir. 2003); Tindall v. Wayne Cnty. Friend
of the Court, 269 F.3d 533, 538 (6th Cir. 2001).
The parties debate whether plaintiff’s state habeas action is “ongoing.” In determining
whether it was ongoing, the Court must look to the day of the federal complaint’s filing. See
Loch, 337 F.3d at 578. If the state proceeding was pending at the time of the filing, then the
matter is “ongoing” for purposes of Younger abstention. Loch, 337 F.3d at 578 (citing
Zalman v. Armstrong, 802 F.2d 199, 204 (6th Cir. 1986)). “It remains pending until a litigant
has exhausted his state appellate remedies.” Id. (citations omitted).
Here, plaintiff filed his
state request for habeas relief in the Knox County Criminal Court on February 11, 2011
[Doc. 8-5]. The action was dismissed on May 10, 2011 [Doc. 8-6]. Plaintiff appealed that
32
decision on June 9, 2011 [Doc. 8-7]. Plaintiff claims that the Tennessee Supreme Court’s
June 1, 2011 order of enforcement “dismissed and denied [p]laintiff a one-level appeal as of
right from the [t]rial [c]ourt’s application of Cawood to deny [p]laintiff the favorable
judgment and deny [p]laintiff access to rules and statutes for relief from the [h]earing [p]anel
judgment” [Doc. 9]. Plaintiff, however, has not provided the Court with any indication that
an appellate court has ruled on his appeal of the May 10, 2011 order of the Knox County
Criminal Court. Further, a review of the Tennessee Supreme Court’s order of enforcement
indicates that the Tennessee Supreme Court merely denied plaintiff’s motion to consolidate
his appeal and his state habeas action as moot—it did not rule on the merits of plaintiff’s state
habeas action. Accordingly, plaintiff’s state habeas action was “ongoing” at the time he filed
his complaint in this action on June 27, 2011. The Court thus finds that first element of the
Younger abstention doctrine is likely satisfied.
With respect to the second Younger element, “[t]here can be no serious question that
the regulation and discipline of attorneys is an important state function.” Danner, 277 F.
App’x at 579. Thus, the Court finds that the second element of the Younger abstention
doctrine is likely satisfied.
With respect to the third Younger element, the Sixth Circuit has noted:
Abstention is appropriate “unless state law clearly bars the interposition of the
constitutional claims.” The plaintiff bears the burden of showing that state law
barred presentation of his or her constitutional claims. Once this third and final
requirement is met, abstention is appropriate “unless the plaintiff can show that
one of the exceptions to Younger applies, such as bad faith, harassment, or
flagrant unconstitutionality.”
33
Id. (citing Squire v. Coughlan, 469 F.3d 551, 556 (6th Cir. 2006) (internal citations omitted).
In his discussion of the application of collateral estoppel, plaintiff argues that Tennessee’s
habeas corpus statute is limited by the terms of the statute and does not reach the liberty
interest provided for by the ex post facto clause. Plaintiff, however, provides no support for
this contention and the Court notes that “[s]tate court judges are bound by the United States
Constitution and state courts are presumed hospitable to federal claims,” a presumption that
is set aside only “when ‘it plainly appears that [pursuit of constitutional claims in state court]
would not afford adequate protection.’” Terrell v. Rosenbalm, No. 3:11-CV-236, 2011 WL
2516762, at *2 (E.D. Tenn. June 23, 2011) (citations omitted).
It appears that there is an adequate opportunity to raise the constitutional challenges
in the course of the state habeas action and it does not plainly appear that the pursuit of
plaintiff’s constitutional claims in state court will not afford adequate protection. Further,
plaintiff has not shown that an exception to Younger applies. See, e.g., Deters v. Davis, No.
3:11-02-DCR, 2011 WL 127166, at *8–9 (E.D. Ky. Jan. 14, 2011) (discussing the
narrowness of the exception and cases considering the exception). The Court thus finds that
the third element of the Younger abstention doctrine is likely satisfied.
Accordingly, with respect to plaintiff’s habeas corpus petition, the Court concludes
that Younger abstention may be appropriate. In a case such as this, where plaintiff does not
seek damages, if Younger applies, the proper course for this Court would be to dismiss
without prejudice. Louisville Country Club v. Ky. Comm’n on Human Rights, 221 F.3d 1335,
1335 (6th Cir. 2000); cf. Carroll v. City of Mount Clemens, 139 F.3d 1072, 1075 (6th Cir.
34
1998) (holding that, when abstaining from damages claims, the proper course of action is to
stay rather than dismiss). Thus, the Court further concludes that plaintiff is not likely to
succeed on the merits of his petition for habeas corpus.
Although no party raised whether Younger applies in any other context in this case,
the Court, in reviewing the record, finds that Younger may require the Court to abstain from
plaintiff’s primary challenge with respect to his section 1983 claim: whether Supreme Court
Rule 9 § 1.3 and Tenn. Code Ann. § 27-9-101 as applied in Cawood and the May 2, 2011
amendment to Rule 9 § 1.3, adding the Cawood requirements to that rule, are
unconstitutional as applied to plaintiff in the state-court proceedings related to his current
suspension. See Coleman v. Jones, No. 3:10-CV-163, 2010 WL 1643276, at *3 (E.D. Tenn.
Apr. 21, 2010) (noting that the Court may raise Younger sua sponte). It appears, with respect
to the Circuit Court’s February 18, 2011 order applying Cawood, that plaintiff filed a notice
of appeal, and that appeal is still pending [See Doc. 8-1 (denying plaintiff’s motion to
consolidate the appeal of the February 18, 2011 order with the Board’s request to enforce the
disciplinary judgment)]. Thus, for all the reasons explained with respect to the state habeas
claim, the Court finds that Younger may require this Court to abstain from plaintiff’s section
1983 action as well.
In sum, the Court concludes that plaintiff is not likely to succeed on the merits of his
claims because of the Eleventh Amendment, because this Court likely lacks subject-matter
jurisdiction, and because this Court may be required to abstain under Younger. This factor
thus weighs heavily against plaintiff.
35
B.
Irreparable Harm
Plaintiff argues that he will be irreparably harmed in various ways in the event the
Court does not issue an injunction. He claims that, if the Court does not grant an injunction,
by the time the Court reaches the merits of his case he will have served all of his active
suspension, as well as a large portion of his probationary period. With respect to the practice
monitor provision specifically, plaintiff argues that he will suffer financially because he will
be required to pay for the monitor—the Court was informed during the hearing that the
monitor would be various attorneys from the law firm of Baker, Donelson, Bearman,
Caldwell & Berkowitz, PC—and that there is no form of relief in terms of monetary damages
because of the Eleventh Amendment. Plaintiff further asserts that the practice monitor most
likely will have unconstitutional access to attorney-client or attorney work product materials
and present other constitutional concerns. Additionally, plaintiff also argues that one day of
suspension could mean that he could lose a significant case. Finally, plaintiff argues that he
is suffering from humiliation and shame.
Although some of plaintiff’s harm is hypothetical at this point (especially some of the
harm related to the practice monitor) and some harm has already occurred, in the event
plaintiff is successful in this action, he may suffer some irreparable harm absent an injunction
enjoining the enforcement of the disciplinary judgment because it appears plaintiff cannot
be compensated by money damages. Nevertheless, it was discussed during the hearing that
the Board will meet in September 2011 and that plaintiff would have an opportunity to be
heard on the practice monitor provision at that meeting. Thus, to the extent that the provision
36
is as “catastrophic” as plaintiff believes it may be, plaintiff will have an opportunity, within
two months of his ten-and-one-half month probationary period, to address the terms of such
with the Board. Accordingly, the Court finds that this factor weighs slightly in favor of
issuing an injunction.
C.
Harm to Others
A state has important interests in “maintaining its justice system [and] assuring the
professional conduct of the attorneys it licenses.” Deters, 2011 WL 127166, at * 11; see also
Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 434 (1982). If the
Court were to enjoin the enforcement of the disciplinary judgment, it would be interjecting
itself into a state process, and the State of Tennessee has a strong interest in enforcing that
judgment without federal court interference. This factor thus weighs against issuing an
injunction.
D.
Public Interest
Again, states have interest in “maintaining and assuring the professional conduct of
the attorneys [they] license[].” Middlesex, 457 U.S. at 434. “The ultimate objective of such
control is ‘the protection of the public, the purification of the bar and the prevention of a reoccurrence.” Id. (citation omitted). Given the Tennessee Supreme Court’s order of
enforcement, the public interest therefore would not be served by granting plaintiff’s request
for relief from that enforcement. Accordingly, this factor weighs against issuing an
injunction.
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III.
Conclusion
For reasons explained above, the four factors the Court must consider in determining
whether to grant preliminary injunctive relief weigh in favor of denying plaintiff’s request.
Accordingly, and although the Court understands plaintiff’s frustration with the procedural
circumstances that brought him to this Court, the Court cannot grant the requested injunctive
relief. The Court hereby ORDERS that plaintiff’s request for injunctive relief [Docs. 2, 10]
is DENIED.
IT IS SO ORDERED.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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