Opinion
No. 01-2927 G/A
June 21, 2002
Plaintiffs John Doe and Richard Roe bring this action against defendants Board of Professional Responsibility of the Supreme Court of Tennessee, Richard Risher, Mark Hayes, Johanna McGlothin, Michelle Benjamin, Charles Carpenter, Jack Robinson, Sr., Carthel Smith, Jr., Kim McMillan, C. Thomas Davenport, Jr., McDonald Williams, Melvin Wright, Tom Hill, and Adolpho Birch, Jr. to declare that section 25 of Rule 9 of the Tennessee Supreme Court Rules violates plaintiffs' rights under the First and Fourteenth Amendments of the United States Constitution. In addition, plaintiffs allege that section 25 of Rule 9 violates Article I, Section 9 of the Tennessee Constitution. On January 28, 2002, the court permitted James Doe to intervene for the limited purpose of maintaining the confidentiality of his identity and the circumstances giving rise to plaintiffs' complaint. On February 8, 2002, defendants filed a motion to dismiss plaintiffs' second amended complaint, or, in the alternative, either to abstain from the case or to certify state law questions to the Tennessee Supreme Court.
The following alleged facts are relevant to defendants' motion. John Doe is a licensed attorney with his principal place of practice in Memphis, Tennessee. (Second Am. Compl. ¶ 3.) While representing a client, Doe filed a complaint with the Disciplinary Counsel of the Board of Professional Responsibility ("the Board") alleging that James Doe, who was counsel for the opposing party, violated the Tennessee Code of Professional Conduct. Id. The Board advised John Doe that the matter of James Doe's alleged violation would be held in suspense because the action between John Doe's client and James Doe's client was still pending, and that the Board would defer to the court. Id. ¶ 5. John Doe subsequently relayed this information to the court. Id. ¶ 6. John Doe asserts that, while communicating with James Doe's attorney regarding the complaint, John Doe inadvertently disclosed the existence of the complaint against James Doe to other third persons. Id. ¶ 7.
Subsequent to John Doe's disclosures regarding the complaint against James Doe to the court and to other third persons, a complaint was filed with the Board against John Doe for his breach of confidentiality in violation of section 25 of Rule 9 of the Tennessee Supreme Court Rules. In the present action, John Doe argues that section 25 of Rule 9 violates his right to free speech provided by the First and Fourteenth Amendments of the United States Constitution, and by Article I, Section 19 of the Tennessee Constitution.
Section 25 of Rule 9 provides:
All proceedings involving allegations of misconduct by or the disability of an attorney shall be kept confidential until or unless a recommendation for the imposition of public discipline is filed with the Supreme Court by the Board, or the respondent-attorney requests that the matter be public, or the investigation is predicated upon conviction of the respondent-attorney for a crime or, in matters involving alleged disability, this court enters an order transferring the respondent-attorney to disability inactive status pursuant to Section 21, provided that, where review is sought pursuant to 1.3 the records and hearing in the Circuit or Chancery Court and this Court of a disciplinary case shall be public to the same extent as other cases. All participants in the proceeding shall conduct themselves so as to maintain the confidentiality of the proceeding. This provision shall not be construed to deny access to relevant information to authorized agencies investigating the qualifications of judicial candidates, or to other jurisdictions investigating qualifications for admission to practice; or to law enforcement agencies investigating qualifications for government employment; or to prevent the Board from reporting evidence of a crime by an attorney or other person to courts or law enforcement agencies; or to prevent the Board or disciplinary counsel from defending any action or proceeding now pending or herinafter brought against either of them. In addition, the Board shall transmit notice of all public discipline imposed by the Supreme Court or on an attorney or the transfer to inactive status due to disability of an attorney to the national discipline data bank maintained by the American Bar Association.
(Tenn.Sup.Ct. Rule 9, § 25 (emphasis added)).
Roe, who is not an attorney, filed a complaint with the Board against an attorney in a matter unrelated to the Doe matter. Id. ¶ 12. Roe asserts that he has been advised that the complaint must remain confidential, and that he would violate section 25 of Rule 9 by revealing to any unauthorized person other than his attorney that a complaint has been filed with the Board. Id. Roe also alleges that he wishes to speak or to write about his complaint, but that to do so would expose him to the risk of being cited for contempt. Id. ¶¶ 4, 13.
In their motion, defendants argue that, pursuant to the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37, 91 (1971), this court should dismiss Doe's claims against defendants without prejudice to avoid interfering with ongoing state court proceedings — in this case, the pending attorney disciplinary hearings. In response, plaintiffs contend that Younger does not apply to the present case because Doe has not been afforded an adequate opportunity to challenge the constitutionality of section 25 of Rule 9 in the state disciplinary proceedings, as is required by Younger, since the Board does not have the authority to hear constitutional challenges or to declare a rule of the Tennessee Supreme Court unconstitutional.
The abstention doctrine applicable in the present case was first articulated by the Supreme Court in Younger v. Harris, 401 U.S. 37 (1971). In Younger, the Court held that the principles of federalism and comity prevented a federal court from interfering in a pending state criminal proceeding. Id. at 44. The Court has since extended this rule to preclude federal court interference with state civil proceedings if the state's interest in its pending proceedings is "so important that the exercise of federal judicial power would disregard the comity between federal and state government." Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 11 (1987). See also Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982) (extending Younger to find that the court should abstain from considering a challenge to the constitutionality of disciplinary rules that are the subject of pending state disciplinary proceedings); Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975) (noting that the component of Younger which rests upon a threat to the federal system applies to civil as well as criminal proceedings).
Abstention under Younger is appropriate where (1) there are pending or ongoing state proceedings which are judicial in nature; (2) the state proceedings implicate an important state interest; and (3) the state proceedings will afford plaintiff an adequate opportunity to raise his constitutional claims. Middlesex, 457 U.S. at 432 (1982); Kelm v. Hyatt, 44 F.3d 415, 419 (6th Cir. 1995); Nilsson v. Ruppert, Bronson Chicarelli Co., 888 F.2d 452, 454 (6th Cir. 1989). With respect to the third element, the burden rests on plaintiff to show that "state procedural law bar[s] presentation of [its] claims." Pennzoil, 481 U.S at 14.
The parties do not dispute that the state disciplinary proceedings against John Doe constitute an ongoing state judicial proceeding or that these proceedings implicate important state interests. However, the parties disagree as to whether the third element of the test for Younger is satisfied, that is, whether the state proceedings afford plaintiff an adequate opportunity to raise his constitutional claims. Federal Express Corp. v. Tennessee Pub. Serv. Comm'n, 925 F.2d 962, 970 (6th Cir. 1991).
The Sixth Circuit has directly applied Younger abstention to attorney disciplinary proceedings in Tennessee. Cohn v. Bracy, 28 F.3d 1213 (6th Cir. 1994) (unpublished table decision). In Cohn, the Sixth Circuit held that "the doctrine of Younger abstention requires federal courts to abstain from enjoining state disciplinary proceedings against attorneys." Id. at *3. Specifically, the court found that the state disciplinary proceeding provided the plaintiff an adequate opportunity to raise constitutional challenges, noting that "[a]n attorney may seek review of a hearing committee's ruling in the Chancery of Circuit Court, from which he may seek review directly in the Supreme Court of Tennessee. Rule 9, §§ 1.3 8.3." Id. at *4. In the present case, although it is unsettled under Tennessee law whether a hearing panel of the Board has the authority to hear John Doe's constitutional challenges, it is clear that Doe is not precluded from later pursuing his constitutional claims during the state appellate process. Thus, the third element for abstention under Younger is satisfied.
Although citation to unpublished Sixth Circuit per curiam decisions is disfavored, this case is referenced "because it establishes the law governing the present action and `there is no [Sixth Circuit] published opinion that would serve as well.'" Norton v. Parke, 892 F.2d 476, 479 n. 7 (6th Cir. 1989) (citing 6th Cir.R. 24(b)).
Plaintiffs argue that Cohn was incorrectly decided since the Sixth Circuit failed to take into account Tennessee case law suggesting that a hearing panel cannot entertain a constitutional challenge to Tennessee Supreme Court rules. However, plaintiffs fail to meet their burden of showing that state procedural law, which allows Doe to raise constitutional challenges during the state appellate process, bars him from adequately presenting his constitutional challenges.
Notwithstanding the court's conclusion that the elements of the abstention test are satisfied, plaintiffs argue that, pursuant to Younger, abstention is improper where the statute at issue is patently and flagrantly unconstitutional on its face. Younger, 401 U.S. 53-54. Plaintiffs base their argument on the Younger court's statement that it "is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence, and paragraph, and in whatever manner and against whomever an effort might be made to apply it." Id. The Younger court further elaborated that "the possible unconstitutionality of a statute `on-its-face' does not itself justify an injunction against good-faith attempts to enforce it." Id. The Sixth Circuit has recognized the narrowness of this exception. Zalaman v. Armstrong, 802 F.2d 199, 206 (6th Cir. 1986) (noting that, in Younger, "the federal plaintiff could not bring himself within the exception even though the statute under which he was indicted had been effectively invalidated in Brandenburg v. Ohio, 395 U.S. 444, 447-49 (1969)") (internal citations omitted). In addition, "the existence of a `chilling effect,' even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action." Younger, 401 U.S. at 51. Given the narrowness of the exception, the court finds that section 25 of Rule 9 of the Tennessee Supreme Court Rules is not "flagrantly and patently unconstitutional" such that abstention would be inappropriate.
The court concludes that the principles of comity and federalism underlying the Younger doctrine require the court to abstain from considering Doe's constitutional challenge to section 25 of Rule 9 of the Tennessee Supreme Court Rules. Accordingly, the court dismisses John Doe's complaint without prejudice. For the same reasons, the court also dismisses the claim of intervening plaintiff James Doe without prejudice.
The Supreme Court has also held that abstention is not appropriate, despite satisfaction of the Younger elements, where the state proceeding was motivated by a desire to harass or is conducted in bad faith. Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975). There is no evidence, however, that these exceptions apply in the present case.
The court now turns to Roe's claims against defendants. In their motion, defendants contend that Roe's claims should be dismissed because Roe lacks standing to bring this action against the Board. Specifically, defendants argue that Roe has not suffered any injury because the Board lacks authority under Tennessee law to bring contempt proceedings against a layperson for violating section 25 of Rule 9. In contrast, plaintiffs contend that Roe is subject to the jurisdiction of the Board, and that the Board has the authority to bring contempt proceedings against Roe if he violates one of its rules. All parties agree that the question of whether Roe, a layperson, can be charged with contempt for violating section 25 of Rule 9 is unsettled under Tennessee law and that this question should be certified to the Tennessee Supreme Court pursuant to Rule 23 of the Rules of the Supreme Court of the State of Tennessee. (Br. in Supp. of Defs.' Mot to Dismiss the Second Am. Compl. at 18; Pl.'s Resp. to Defs.' Second Mot. to Dismiss at 6.)
Rule 23 of the Tennessee Supreme Court Rules states the following:
The Supreme Court may, at its discretion, answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a District Court of the United States in Tennessee, or a United States Bankruptcy Court in Tennessee. This rule may be invoked when the certifying court determines that, in a proceeding before it, there are questions of law of this state which will be determinative of the cause and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court of Tennessee.
The parties agree that the following question should be certified to the Tennessee Supreme Court pursuant to Rule 23: Can Roe, a layperson, be charged with contempt for disclosing that he filed a complaint with the Board against an attorney in violation of section 25 of Rule 9, and if so, by which entity and before what tribunal?
Since the court finds that this question is unsettled under Tennessee law and is determinative of Roe's action, it grants defendants' motion to certify this question to the Tennessee Supreme Court for resolution. In accordance with Rule 23, this court provides the following information:
This court will defer ruling on defendants' motion to dismiss Roe's second amended complaint until the Tennessee Supreme Court responds to this court's order for certification.
(A) Style of the Case: Doe, et al. v. Bd. of Prof'l Responsibility of the Sup. Ct. of Tenn, et al., No. 01-2927.
(B) Nature of Case, Circumstances Out of Which the Question of Law Arises, Questions of Law: See above.
(C) Names of Parties:
(1) Plaintiff: Richard Roe
(2) Defendants: Board of Professional Responsibility of the Supreme Court of Tennessee, Richard Risher, Mark Hayes, Johanna McGlothin, Michelle Benjamin, Charles Carpenter, Jack Robinson, Sr., Carthel Smith, Jr., Kim McMillan, C. Thomas Davenport, Jr., McDonald Williams, Melvin Wright, Tom Hill, and Adolpho Birch, Jr.
(D) Names, Addresses, and Telephone Numbers of Counsel for Parties:
(1) Counsel for Plaintiff:
Ronald D. Krelstein, Esq. 7515 Corporate Centre Drive Germantown, TN 38138 (901) 758-2000
(2) Counsel for Defendants:
Michael W. Catalano, Esq. Attorney General's Office P.O. Box 20207 Nashville, TN 37202-0207 (615) 741-3491
(E) Designation of One of the Parties as the Moving Party: Moving Party: Board of Professional Responsibility of the Supreme Court of Tennessee, Richard Risher, Mark Hayes, Johanna McGlothin, Michelle Benjamin, Charles Carpenter, Jack Robinson, Sr., Carthel Smith, Jr., Kim McMillan, C. Thomas Davenport, Jr., McDonald Williams, Melvin Wright, Tom Hill, and Adolpho Birch, Jr.
Adverse Party: Richard Roe
Accordingly, the court orders that the question listed above be certified to the Supreme Court of Tennessee and forwarded to the Clerk of the Supreme Court of Tennessee pursuant to Rule 23 of the Rules of the Supreme Court of Tennessee. With respect to John Doe's and James Doe's claims, the court abstains pursuant to Younger, and dismisses these claims without prejudice.
IT IS SO ORDERED.