Danner v. Bd. Of Prof. Res. ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0243n.06
Filed: May 6, 2008
No. 07-5647
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DAVID E. DANNER, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE MIDDLE
v. ) DISTRICT OF TENNESSEE
)
BOARD OF PROFESSIONAL RESPONSIBILITY )
OF THE TENNESSEE SUPREME COURT, and )
LANCE B. BRACY, )
)
Defendants-Appellees. )
__________________________________________ )
BEFORE: COLE and GRIFFIN, Circuit Judges; and FORESTER, District Judge.*
GRIFFIN, Circuit Judge.
Plaintiff David Danner appeals the district court’s February 12, 2007, Order (1) adopting the
Report and Recommendation of the Magistrate Judge, (2) overruling plaintiff’s objection to the
Report and Recommendation, (3) granting defendants’ Motion to Dismiss the Amended Complaint,
and (4) dismissing the case without prejudice under the abstention principles elucidated in Younger
v. Harris, 401 U.S. 37 (1991). Danner additionally appeals the district court’s April 13, 2007, Order
denying plaintiff’s Motion to Alter and Amend Judgment, and the district court’s June 28, 2007,
*
The Honorable Karl S. Forester, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 07-5647
Danner v. Bd. of Prof’l Resp.
Order denying plaintiff’s Motion to Set Aside Judgments. For the reasons set forth below, we affirm
the orders of the district court.
I.
Plaintiff is an attorney licensed to practice law in the state of Tennessee. Danner had
previously represented a client in a federal employment discrimination action. This matter was
eventually settled with the client receiving settlement proceeds. A dispute arose between Danner
and his client over the client’s discovery deposition and the terms of the financial settlement. This
dispute culminated in the client filing a complaint against Danner with the Board of Professional
Responsibility of the Tennessee Supreme Court (“the Board”) on February 25, 2005.
On April 4, 2005, the Board forwarded a summary of the complaint to Danner. Danner
responded to the complaint on April 19, 2005, with further correspondence exchanged thereafter
between Danner, his former client, and Lance B. Bracy, Chief Disciplinary Counsel for the Board.
On January 30, 2006, Bracy informed Danner that the Board had voted to recommend diversion of
the matter to a practice and professional enhancement program pursuant to Tennessee Supreme
Court Rule 9, Section 30. Danner would attend this program at his own expense and, after
successful completion, his disciplinary complaint would be dismissed. Danner was additionally
informed that “[d]iversion into a practice and professional enhancement program does not constitute
a disciplinary sanction and is confidential.” Bracy notified Danner that he had the right to reject the
recommended diversion, which would result in the matter being returned to the Board for further
proceedings and the likely issuance of a private admonition or private reprimand.
-2-
No. 07-5647
Danner v. Bd. of Prof’l Resp.
On February 17, 2006, Danner responded to the January 30, 2006, letter. Danner informed
Bracy and the Board that he “contest[ed] the Board action and decline[d] the alternate solution it
propose[d].” He additionally requested “a hearing on this matter if discipline [was] imposed after
the Board’s reconsideration of this matter . . . .” The Board acknowledged receipt of this letter on
February 22, 2006.
The Board considered the matter on March 10, 2006, and determined that a private informal
admonition was an appropriate discipline. On March 31, 2006, the Board sent Danner notice of the
discipline, as well as a proposed informal admonition. Both the notice and the informal admonition
advised Danner that he could request a formal hearing within twenty days, as provided in Rule 9,
Section 8.1, of the Tennessee Supreme Court Rules.
Danner filed the present civil action in the United States District Court for the Middle District
of Tennessee on April 24, 2006, nineteen days after he received the notice and the proposed informal
admonition. The suit named the Board and Bracy, in both his individual and official capacity, as
defendants and alleged violations of 42 U.S.C. §§ 1983, 1985, the First, Fifth, and Fourteenth
Amendments to the United States Constitution, as well as Article 1, §§ 8, 19, and 21 of the
Tennessee Constitution. Danner sought to have the proposed, but not imposed, discipline vacated
and withdrawn; to recover general, special, consequential, punitive, and exemplary damages, plus
attorney’s fees and court costs; to have the district court enjoin any policy, practice, or conduct by
defendants determined to be in violation of the United States and/or the Tennessee Constitution; and
to have a declaratory judgment that defendants violated his constitutional rights.
-3-
No. 07-5647
Danner v. Bd. of Prof’l Resp.
On August 31, 2006, defendants filed a Motion to Dismiss the Amended Complaint. On
December 13, 2006, the Magistrate Judge issued a Report and Recommendation recommending
dismissal pursuant to Younger. Defendants filed a timely objection to the Report and
Recommendation. On February 12, 2007, the district court issued an Order adopting the Report and
Recommendation and dismissing the case without prejudice pursuant to the Younger abstention
doctrine. Danner then filed a Motion to Alter or Amend Judgment and a Motion to Set Aside
Judgments, both of which were denied. Danner filed a Notice of Appeal on May 14, 2007, and later
filed a second Notice of Appeal on July 26, 2007. This second appeal, which concerned the Order
denying the Motion to Set Aside Judgments, was dismissed for failure to prosecute.
II.
In Younger, the United States Supreme Court counseled federal courts to abstain from
enjoining certain pending state court criminal proceedings. This doctrine is borne out of a “proper
respect for state functions, a recognition of the fact that the entire country is made up of a Union of
separate state governments, and a continuance of the belief that the National Government will fare
best if the States and their institutions are left free to perform their separate functions in their
separate ways.” Younger, 401 U.S. at 44.
This doctrine has subsequently been extended to apply to both ongoing state civil
proceedings, see Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), and ongoing state administrative
proceedings, Middlesex County Ethics Commission v. Garden State Bar Association, 457 U.S. 423
(1982). A federal court should abstain only when three criteria are met, specifically: (1) the
-4-
No. 07-5647
Danner v. Bd. of Prof’l Resp.
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. See Loch v. Watkins, 337 F.3d 574, 578 (6th Cir. 2003);
Tindall v. Wayne County Friend of the Court, 269 F.3d 533, 538 (6th Cir. 2001). A federal district
court’s decision to abstain from review of the merits of a case is reviewed de novo. Squire v.
Coughlan, 469 F.3d 551, 555 (6th Cir. 2006) (citing Berger v. Cuyahoga County Bar Ass’n, 983
F.2d 718, 721 (6th Cir. 1993)).
Turning to the question of whether the underlying proceedings constitute an ongoing judicial
proceeding, we first note that the Supreme Court has previously held that state bar disciplinary
proceedings can be considered “judicial in nature” despite the lack of a formal government action.
Middlesex, 457 U.S. at 425-27. In Middlesex, the Court determined that the discipline proceedings
at issue were “judicial in nature” and thus “warrant[ed] federal-court deference” because the New
Jersey Supreme Court regarded the disciplinary hearings as judicial proceedings. Id. at 433. The
Court’s view stemmed from the fact that Article 6, Section 2, Paragraph 3 of the New Jersey State
Constitution vested the power to discipline members of the state bar in the state supreme court, and
the local New Jersey “District Ethics Committees” act as the disciplinary arm of that court.
Middlesex, 457 U.S. at 425. Thus, to file a complaint with the local ethics committee was, in effect,
the same as filing a complaint with the New Jersey Supreme Court. Id. at 433 (citing Toft v.
Ketchum, 113 A.2d 671, 673-74 (N.J. 1955)).
-5-
No. 07-5647
Danner v. Bd. of Prof’l Resp.
The Tennessee Supreme Court performs a regulatory function similar to that of the Supreme
Court of New Jersey. While the Tennessee Constitution does not formally assign the state supreme
court the role of regulating and disciplining attorneys as seen in Middlesex, the Tennessee Supreme
Court has itself held that it is “well settled and indisputable that the Supreme Court has the ‘inherent
supervisory power to regulate the practice of law . . . .’” Brown v. Bd. of Prof’l Resp., 29 S.W.3d
445, 449 (Tenn. 2000) (quoting In re Burson, 909 S.W.2d 768, 773 (Tenn. 1995)). Further, in
examining the function and role of the Tennessee Board of Examiners, the Tennessee Supreme Court
has held that when the Tennessee General Assembly created the Board, they were merely creating
an aid to the judiciary, and therefore the Board became part of the judicial branch of government.
Belmont v. Bd. of Law Examiners, 511 S.W.2d 461, 463 (Tenn. 1974). The Court has noted that the
Tennessee Board of Professional Responsibility, like the Board of Examiners, derived its functions
and authority from the Supreme Court. Brown, 29 S.W.3d at 449; Mercer v. HCA Health Svs. of
Tennessee, Inc., 87 S.W.3d 500, 504 (Tenn. Ct. App. 2002).
Moreover, we have held previously that investigations by disciplinary counsel into suspected
attorney misconduct, and concomitant disciplinary proceedings, are adjudicative functions for
purposes of Younger analysis. See Squire, 469 F.3d at 556 (holding such in context of Disciplinary
Counsel for the Supreme Court of Ohio); Fieger v. Thomas, 74 F.3d 740, 744 (6th Cir. 1996)
(holding such in context of Michigan Attorney Grievance Commission). We similarly hold that the
Tennessee disciplinary proceedings at issue are judicial in nature.
-6-
No. 07-5647
Danner v. Bd. of Prof’l Resp.
Our remaining inquiry as to the first Younger element concerns whether the underlying state
proceeding was “ongoing.” In conducting this inquiry, we have looked previously to the day of the
federal complaint’s filing. If the state proceeding was pending at the time of the filing, we consider
the matter ongoing for purposes of the first Younger question. Loch, 337 F.3d at 578 (citing Zalman
v. Armstrong, 802 F.2d 199, 204 (6th Cir. 1986)). The action “remains pending until a litigant has
exhausted his state appellate remedies.” Id. (citing Huffman, 420 U.S. at 609). Here, Danner filed
his federal suit nineteen days after receiving the notice of proposed discipline, which was one day
prior to the deadline for requesting a full hearing on the misconduct charge. At the time he filed his
federal complaint, punishment had not been imposed and Danner had yet to avail himself of
available appellate remedies. We therefore conclude that the state disciplinary matter was ongoing,
and subsequently hold that the first element of Younger is satisfied.
III.
The second question in our Younger analysis is whether the disciplinary proceedings
implicate important state interests. There can be no serious question that the regulation and
discipline of attorneys is an important state function. As the Supreme Court has noted, the regulation
of lawyers is of “especially great” interest to the state, as lawyers are “essential to the primary
governmental function of administering justice, and have historically been ‘officers of the courts.’”
Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975) (quoting Sperry v. Florida ex rel. Florida
Bar, 373 U.S. 379, 383 (1965)). See also Fieger, 74 F.3d at 745. Thus, we must conclude that the
second element of the Younger abstention doctrine is satisfied.
-7-
No. 07-5647
Danner v. Bd. of Prof’l Resp.
IV.
The final question in our Younger inquiry is whether the state proceeding offered an adequate
opportunity for Danner to raise constitutional challenges. As we have noted previously:
Abstention is appropriate “unless state law clearly bars the interposition of the
constitutional claims.” Fieger, 74 F.3d at 745 (citations and quotation marks
omitted). The plaintiff bears the burden of showing that state law barred presentation
of his or her constitutional claims. Id. at 746. 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.” Id. at 750 (citation and quotation marks omitted).
Squire, 469 F.3d at 556. We note that Rule 9, Section 13 of the Tennessee Supreme Court explicitly
provides for judicial review of the Board’s decisions when it is alleged that these findings violate
either statutory or constitutional provisions.
Danner is unable to demonstrate that the relevant statutory scheme prohibits the presentation
of his constitutional arguments. Indeed, disciplinary counsel acknowledged Danner’s constitutional
arguments and stated that these arguments would be forwarded on to the Board. Danner instead
proceeds by arguing that the Tennessee judiciary is biased against him. Specifically, in his brief,
appellant asserts that there has been a “history of hostile, harassing treatment by Tennessee judges
throughout his formative professional career which judicial treatment has included illegal sanctions,
unlawful rulings, and irregular procedures [that] should provide sufficient basis for a state-court bias
finding for an exception to Younger abstention . . . .” While bias is an exception to Younger
abstention, it is an extraordinary one, and the petitioner alleging such must offer “actual evidence
to overcome the presumption of honesty and integrity in those serving as adjudicators.” Canatella
-8-
No. 07-5647
Danner v. Bd. of Prof’l Resp.
v. California, 404 F.3d 1106, 1112 (9th Cir. 2005) (citations and quotations omitted). Danner
attempts to meet this burden by supplying five letters that he sent to various judiciary officials which
he claims were ignored. This production falls woefully short of demonstrating that there is
institutional bias against Danner in the Tennessee judiciary. We therefore conclude that the third
prong of the Younger inquiry is satisfied and abstention is warranted.
V.
Danner additionally argues that the district court erred in failing to grant his “secondary post-
judgment-relief motion concerning continuing bias against him in Tennessee state tribunals.” The
district court’s order denying this motion was appealed only in appellant’s second Notice of Appeal.
This appeal, case number 07-5921, was dismissed for failure to prosecute. Danner’s arguments
regarding this point are therefore not properly before this court.
VI.
Finally, appellant contends that his appeal should be allowed to proceed because it is not
barred under the Rooker-Feldman doctrine, which prohibits parties that have received an adverse
state court decision from obtaining review of those decisions in federal district court. D.C. Court
of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); see
also Powers v. Hamilton County Pub. Defenders Comm’n, 501 F.3d 592, 606 (6th Cir. 2007)
(“Rooker-Feldman prevents an unsuccessful state court party ‘from seeking what in substance would
be appellate review of the state judgment in a United States district court, based on the losing party’s
claim that the state judgment itself violates the loser’s federal rights’”) (quoting Johnson v.
-9-
No. 07-5647
Danner v. Bd. of Prof’l Resp.
DeGrandy, 512 U.S. 997, 1005-06 (1994)). Assuming Danner is correct in arguing that the doctrine
does not bar the instant suit, a conclusion that is suspect given the relief plaintiff seeks, the doctrine
certainly does not compel review in the present matter. The district court’s opinion and order for
dismissal rested on abstention principles, not on the Rooker-Feldman doctrine. This argument,
therefore, has no merit.
VII.
For these reasons, we affirm the orders of the district court.
- 10 -