# Gilbert v. North Carolina State Bar

> Supreme Court of North Carolina · March 20, 2009 · 363 N.C. 70

URL: https://www.frixlaw.com/law-library/cases/9587143

## Case

- **Full name:** Willie D. Gilbert, II v. the North Carolina State Bar
- **Court:** Supreme Court of North Carolina
- **Decided:** March 20, 2009
- **Citations:** 363 N.C. 70; 678 S.E.2d 602; 2009 N.C. LEXIS 238
- **Precedential status:** Published
- **Opinion:** Dissent by Timmons-Goodson
- **Judges:** Timmons-Goodson, Hudson
- **Cited by:** 32 later opinions in the Frix Law Library

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## Opinion text

Justice TIMMONS-GOODSON,
dissenting.
Because I conclude that plaintiff has sufficiently alleged a § 1983 claim for vindictive prosecution to survive a Rule 12(b)(6) motion to dismiss, I respectfully dissent.
At the outset, I note that the only two questions presented by defendant’s petition for discretionary review and allowed by the Court read as follows:
1. Did the Court of Appeals err in dismissing the State Bar’s appeal of the injunction of Wilson County Superior Court as interlocutory?
2. Did the Superior Court of Wilson County have jurisdiction to permanently enjoin the State Bar’s prosecution of an attorney disciplinary proceeding before the Disciplinary Hearing Commission?
The majority answers the question regarding the interlocutory nature of the appeal in the affirmative and explains that, while interlocutory, the appeal affects a substantial right that will be irreversibly injured or lost if not immediately appealed. The majority answers the question regarding the superior court’s subject matter jurisdiction affirmatively. Thus, the inquiry should end.
*87 However, the majority proceeds to discuss the failure of plaintiff to state a claim. That discussion is not necessary to answer the question regarding jurisdiction presented by the petition for discretionary review. Indeed, the majority has improperly expanded the scope of this appeal and ruled on a constitutional question in advance of the necessity of deciding it. In doing so, the majority fails to exercise the judicial restraint that we have so often proclaimed. At the heart of the majority’s decision to reach the question is the concern that a ruling allowing plaintiff to pursue in the courts his § 1983 claim would permit attorneys to circumvent attorney disciplinary proceedings and obtain favorable treatment in their home districts. I am not persuaded, as we entrust our superior court judges with the ability to fairly adjudicate many weighty issues, including capital cases. Moreover, the instant case involves unique facts and procedural history not likely to arise in other disciplinary proceedings.
Interlocutory Appeal
The majority concludes that defendant’s interlocutory appeal implicates defendant’s substantial right to execute its statutory duties, and that this right may be lost or prejudiced if appeal is not immediately taken. I disagree. To be sure, defendant has statutory duties to promulgate and enforce the rules of professional conduct, duties of significant importance to the protection of the public and the legal profession. N.C.G.S. § 84-23 (2007). Assuming that defendant’s expeditious prosecution of Gilbert III implicates this substantial right, it is defendant’s conduct, and not the interlocutory order in the instant case, that has unnecessarily delayed the prosecution of Gilbert III. It is a cardinal principle that a party may not avail itself of any error created by the party itself. See, e.g., id., § 15A-1443(c) (2007) (“A defendant is not prejudiced ... by error resulting from his own conduct.”).
In the instant case, defendant generated the complaint on 12 September 2003, despite having access to all of the underlying information at least three years earlier. Although defendant had all the requisite information available to it prior to the institution of Gilbert I, defendant chose to proceed against plaintiff in piecemeal fashion, such that the instant proceeding is the seventh one to be litigated in various forums across the state. Thus, I find unpersuasive defendant’s argument that immediate review of the trial court’s interlocutory order is necessary in order to prevent the delayed prosecution of Gilbert III.
*88 Moreover, defendant has failed to show that the delayed prosecution of Gilbert III pending the trial court’s resolution of the instant case could result in irreversible injury or loss of its substantial right absent immediate review. Goldston v. Am. Motors Corp., 326 N.C. 723, 726 , 392 S.E.2d 735, 736 (1990). Indeed, defendant cannot make such a showing. As defendant’s own delay in filing the complaint in Gilbert III for approximately three years indicates, defendant is unlikely to suffer a loss or irreversible injury merely due to the passage of time.
While conceding that an injunction is not an irreversible injury, the majority concludes that, because plaintiff has failed to properly plead his § 1983 claims, defendant should not be made to await a final judgment. This reasoning incorrectly focuses on the merits of plaintiff’s underlying action instead of the possible injury to or loss of defendant’s substantial rights. Yet the strength of defendant’s appeal on the merits does not dictate whether defendant may immediately appeal from an interlocutory order. As we have repeatedly held, the trial court’s denial of a motion to dismiss will not entitle the defendant to immediate appeal of an interlocutory order, regardless of the merits of the motion to dismiss. E.g., N.C. Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 437-38 , 206 S.E.2d 178, 181 (1974); Cox v. Cox, 246 N.C. 528, 531 , 98 S.E.2d 879, 883 (1957). Consequently, defendant is not entitled to immediate review of the trial court’s order, and this interlocutory appeal should be dismissed.
Subject Matter Jurisdiction
The only substantive issue for which we allowed discretionary review in this case was whether the superior court had subject matter jurisdiction to hear plaintiff’s § 1983 claim during the pendency of Gilbert III in the DHC. After recognizing that the superior court has subject matter jurisdiction in this case, the majority inexplicably proceeds to transform defendant’s motion to dismiss for lack of subject matter jurisdiction into a motion to dismiss for failure to state a claim. In so doing, the majority unnecessarily expands the scope of this appeal. As the majority has addressed the issue, however, I do so as well, and I conclude that plaintiff’s complaint adequately states a § 1983 claim for deprivation of substantive due process based upon allegations of vindictive prosecution by defendant.
Vindictive Prosecution
On review of a motion to dismiss for failure to state a claim under Rule 12(b)(6), we examine
*89 “whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. In ruling upon such a motion, the complaint is to be liberally construed, and the trial court should not dismiss the complaint unless it appears beyond doubt that [the] plaintiff could prove no set of facts in support of his claim which would entitle him to relief.”
Shepard v. Ocwen Fed. Bank, 361 N.C. 137, 139 , 638 S.E.2d 197, 199 (2006) (quoting Meyer v. Walls, 347 N.C. 97, 111-12 , 489 S.E.2d 880, 888 (1997) (alteration in original)).
To state a claim for relief under § 1983, the plaintiff must allege (1) the deprivation of a right under the federal constitution or statute (2) by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 , 101 L. Ed. 2d 40, 48-49 (1988). A vindictive prosecution is one that is designed to punish an individual for exercising statutory or constitutional rights to appeal or seek collateral relief in a prior proceeding. It is well-established that vindictive prosecution violates due process. See, e.g., United States v. Goodwin, 457 U.S. 368, 372 , 73 L. Ed. 2d 74, 80 (1982); Bordenkircher v Hayes, 434 U.S. 357, 363 , 54 L. Ed. 2d 604, 610 (1978); Blackledge v. Perry, 417 U.S. 21, 29 , 40 L. Ed. 2d 628, 635 (1974); North Carolina v. Pearce, 395 U.S. 711, 724 , 23 L. Ed. 2d 656, 668 (1969).
The majority incorrectly concludes that substantive due process does not protect individuals from vindictive prosecutions of administrative matters. Neither the Supreme Court of the United States nor any other federal court has issued such a holding. To the contrary, federal courts have applied the doctrine to administrative and regulatory proceedings. See, e.g., Nat’l Eng’g & Contr’g Co. v. Herman, 181 F.3d 715, 722-23 (6th Cir.) (stating the elements of vindictive prosecution, which petitioner asserted as a defense to administrative proceedings by the Occupational Safety and Health Review Commission for violations of OSHA regulations), cert. denied, 528 U.S. 1045 , 145 L. Ed. 2d 481 (1999); Futernick v. Sumpter Twp., 78 F.3d 1051 , 1056 n.7 (6th Cir.) (describing the elements of vindictive prosecution in the context of a regulatory proceeding), cert. denied, 519 U.S. 928 , 136 L. Ed. 2d 215 (1996), overruled on other grounds by, Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 , 145 L. Ed. 2d 1060, 1063 (per curiam) (2000); United States v. One 1985 Mercedes, 917 F.2d 415, 420 (9th Cir.) (stating that vindictive prosecution claims may raise due process and equal protection issues in civil forfeiture cases). *90 Indeed, this Court would be the first high court in the nation to conclude that the rule against vindictive prosecution does not apply to administrative proceedings. The only limitation that the Supreme Court of the United States has placed upon the doctrine has been the refusal to apply a presumption of vindictiveness in all cases. See, e.g., Alabama v. Smith, 490 U.S. 794, 799 , 104 L. Ed. 2d 865, 872 (1989); Goodwin, 457 U.S. at 384 , 73 L. Ed. 2d at 87 . Even in such cases, however, the proponent may establish actual vindictiveness through objective evidence. Goodwin, 457 U.S. at 384 , 73 L. Ed. 2d at 87 .
The import of the rule against vindictive prosecution is that the State may not punish an individual for the exercise of his statutory or constitutional rights. Thus, the central question in determining whether the rule applies to this case is whether attorney disbarment is punishment in the constitutional sense. The answer to this question is well-established in Supreme Court precedent: “[d]isbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer.” In re Ruffalo, 390 U.S. 544, 550 , 20 L. Ed. 2d 117, 122 (1968) (citations omitted). Consequently, attorneys in such proceedings are entitled to certain constitutional protections. See, e.g., id., 390 U.S. at 550 , 20 L. Ed. 2d at 122 (holding that attorney disbarment proceedings are quasi-criminal and that attorneys are entitled to procedural due process); Spevack v. Klein, 385 U.S. 511, 516 , 17 L. Ed. 2d 574, 578 (1967) (holding that attorneys are entitled to the privilege against self-incrimination because “[t]he threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege”). Because attorney disbarment amounts to punishment in the constitutional sense, I conclude that the vindictive prosecution of attorney disbarment proceedings implicates due process, notwithstanding the State’s labeling of such proceedings as “administrative.” The question then becomes whether plaintiff has alleged sufficient facts in his complaint to state a claim for vindictive prosecution.
Turning to the pleadings in the instant case, plaintiff’s alleges, inter alia, the following:
By attempting through Gilbert III to secure a disciplinary sanction ... and by doing so in apparent bad faith and as part of a continuing effort to menace and intimidate the Plaintiff, and to exact a price for the Plaintiff’s having exercised his statutory and constitutional rights to defend himself zealously against, and to seek appellate review . . . the State Bar has engaged, and is con *91 tinuing to engage, in a vindictive prosecution of the Plaintiff in violation of the United States and North Carolina constitutions.
By attempting through Gilbert III to secure a disciplinary sanction . . . and by doing so on the basis of intentional misrepresentations of fact, in apparent bad faith, and as part of a continuing effort to menace and intimidate the Plaintiff, and to exact a price for the Plaintiffs having exercised his statutory and constitutional rights to defend himself zealously against, and to seek appellate review... the State Bar has deprived the Plaintiff of his right to substantive due process.
In support of these assertions, plaintiff alleges that defendant knowingly made false allegations in the underlying grievance in Gilbert III and notified plaintiffs attorney of its intent to deal with plaintiff in such a way as to discourage other attorneys from similarly obtaining writs of supersedeas. Plaintiff also alleges that Gilbert III is the latest in a series of “sharp practices” against plaintiff that include the following: (1) circumventing the procedures for instituting attorney disciplinary hearings; (2) deterring an attorney witness from testifying for plaintiff in Gilbert I by filing a grievance and issuing a subpoena for that attorney’s trust account records days before the hearing; (3) attempting to impeach another defense witness in Gilbert I by suggesting that the witness was convicted of crimes, which defendant knew to be untrue; (4) knowingly making material misrepresentations of fact to this Court in oral arguments in Gilbert I; and (5) filing a grievance in Gilbert III that contained knowing misrepresentations of fact.
Treating the allegations in plaintiff’s complaint as true, as is required on review of a motion to dismiss under Rule 12(b)(6), plaintiff’s complaint sufficiently alleges a deprivation of substantive due process. Plaintiff clearly had statutory rights to seek appellate review and obtain writs of prohibition from the DHC’s disciplinary order in Gilbert I. 7 Plaintiff alleges that defendant instituted Gilbert III to punish him for having exercised these statutory rights in a prior disciplinary proceeding. The law is well-established that the State may *92 not prosecute an individual for exercising his statutory or constitutional rights to appeal or seek collateral relief. Goodwin, 457 U.S. at 372 , 73 L. Ed. 2d at 80 . Such conduct by the State would amount to a deprivation of substantive due process. Id. Plaintiff has adequately alleged a claim for relief under § 1983. In concluding that plaintiffs complaint contains sufficient allegations to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, I express no opinion as to whether there is merit to plaintiffs claim. I conclude only that having sufficiently alleged a § 1983 claim, the attorney in this case is entitled to his day in court, as the countless attorneys of our state routinely assist the public in doing.
Having abandoned judicial restraint, the majority not only expands the scope of this appeal but also incorrectly analyzes plaintiffs complaint as one for malicious prosecution. In his complaint, plaintiff seeks relief for vindictive prosecution only and makes no mention of either the cause or elements of malicious prosecution. The essence of a malicious prosecution is the institution of legal proceedings with malice and without probable cause. See Best v. Duke Univ., 337 N.C. 742, 749 , 448 S.E.2d 506, 510 (1994); Greer v. Skyway Broad. Co., 256 N.C. 382, 389 , 124 S.E.2d 98, 103 (1962). The gravamen of plaintiffs complaint is that defendant instituted Gilbert III to punish him for exercising his statutory rights to appeal and obtain the writs of supersedeas, not that defendant lacked probable cause and that Gilbert I or II terminated in his favor. I find no basis in the record for the majority’s treatment of plaintiff’s complaint as one for malicious prosecution.
In sum, because the interlocutory order in the instant case does not affect a substantial right that may be lost or irreversibly injured absent immediate review, I would affirm the decision of the Court of Appeals to dismiss the instant appeal. Assuming arguendo that the merits of defendant’s appeal are properly before this Court, I conclude that the trial court correctly denied defendant’s motion to dismiss because (1) the superior court had subject matter jurisdiction over plaintiff’s § 1983 actions and (2) plaintiff adequately alleged a deprivation of substantive due process. I therefore respectfully dissent.
. An attorney who is a party to a disciplinary proceeding has a statutory right to seek appellate review of the DHC’s final order in the Court of Appeals. N.C.G.S. § 84-28(h). The attorney may also appeal from any decision of the Court of Appeals in which there is a dissent. Id., § 7A-30(2) (2007). As part of the appellate process, the attorney may obtain writs of supersedeas to stay the execution or enforcement of any judgment or order, including those of the DHC. N.C. R. App. P. 23.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9587143. Public record. Not legal advice.