Petition for Writ of Certiorari — Michelle Lowney MacDonald, Petitioner v. Lawyers Board of Professional Responsibility

Supreme Court briefApr 17, 2018

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IN THE

Supreme Court of the United States

MICHELLE LOWNEY MACDONALD, PETITIONER

LAWYERS BOARD OF PROFESSIONAL RESPONSIBILITY

PETITION FOR A WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

MICHELLE LOWNEY MACDONALD SHIMOTA

Counsel of Record

1069 South Robert Street

West St. Paul, MN 55118

Michelle@MacDonaldLawFirm.com

(651) 222-4400

CURRY & TAYLOR 202-393-4141

QUESTION(S) PRESENTED

Allowing speech by attorneys critical of the judiciary is an

essential component of the American system of

government. This Court has not addressed the restraint

on free speech which is inherent in disciplining a lawyer

for comments criticizing a judge, and that is why this case

presents an issue of first impression regarding the First

Amendment, Free Speech and the discipline of attorneys

for statements concerning the qualifications or integrity

of a judge. Across the country, attorneys are generally

prohibited from and severely punished for impugning

judicial integrity. In scores of cases both state and federal

courts have disciplined attorneys for making disparaging

remarks about the judiciary, and have almost universally

rejected the constitutional standard established by the

Supreme Court in New York Times v. Sullivan , 376 US

254 (1964) and Garrison v. Louisiana 379 US 64 (1964)

for punishing speech regarding government officials.

The questions presented are:

1. Whether a free speech right to impugn judicial

integrity must be recognized for attorneys when

acting as officers of the court and making statements

in court pleadings and proceedings?

2. Whether the disciplinary procedures for attorneys can

constitutionally abrogate First Amendment Rights when

rules are used to punish speech that impugns that

integrity of the judiciary without requiring a showing of

knowledge or reckless disregard to falsity?

TABLE OF CONTENTS

Page

QUESTION(S) PRESENTED ........................................................... i

TABLE OF AUTHORITIES............................................................ iii

OPINIONS BELOW......................................................................... 1

JURISDICTION ............................................................................... 1

RELEVANT PROVISIONS INVOLVED ......................................... 1

STATEMENT .................................................................................. 3

REASONS FOR GRANTING THE PETITION............................... 12

CONCLUSION............................................................................... 29

APPENDIX

State Supreme Court.............................................................. 1a

Findings, Conclusions, Memorandum ............................. 26a

TABLE OF AUTHORITIES

iii

Page

CASES

BATES V. STATE BAR OF ARIZONA, 433 U.S. 350,

355, 365, 384 (1977).................................................................. 22

COMMITTEE ON LEGAL ETHICS OF THE WEST

VIRGINIA STATE BAR V. FARBER, 408 S.E.2D 274............ 14

FLA. BAR V. RAY, 797 SO. 2D 556, 557 (FLA. 2001)

(PER CURIAM) ......................................................................... 15

FOLEY V. WCCO TELEVISION, INC., 449 N.W.2D

497, 501 (MINN, 1990) ............................................................. 24

GARRISON V. LOUISIANA 379 US 64 (1964)............12, 24, 25, 26

GENTILE V. STATE BAR OF NEVADA, 501 U.S. 1030,

1054 (1991) ............................................................................... 22

GREEN, 11 P.3D 1078, 1083 (COLO. 2000) (PER

CURIAM)............................................................................. 22, 23

HARTE-HANKS COMMUNICATIONS, INC. V.

CONNAUGHTON, 491 U.S. 657, 667 (1989) ...................... 23, 24

IDAHO STATE BAR V. TOPP, 925 P2D 1113, 1115

(IDAHO 1996) ................................................................13, 14, 17

ILLINOIS V. ALLEN, 397 U.S. 337, 350 (1970) .......................... 29

IN RE ARNOLD, 56 P.3D 259, 263 (KAN. 2002) (PER

CURIAM)................................................................................... 15

IN RE ATANGA, 636 N.E.2D 1253. 1256 (IND. 1994)

(PER CURIAM) ......................................................................... 14

IN RE CHARGES OF UNPROFESSIONAL CONDUCT

INVOLVING FILE NO. 17139, 720 N.W.2D 807, 810

(MINN. 2006)............................................................................ 16

IN RE COBB, 838 N.E.2D 1197, 1210 (MASS. 2005)................... 16

IN RE DISCIPLINARY ACTION AGAINST GRAHAM,

453 N.W.2D 313, 315, N.3 (MINN. 1990) (PER

CURIAM)................................................................................... 15

IN RE EVANS, 801 F.2D 703 ................................................. 15, 16

IN RE GLENN, 130 N.W.2D 672 ................................................. 16

IN RE GUY, 756 A.2D 875, 877-78 (DEL. 2000).......................... 15

IN RE HOLTZMAN, 577 N.E.2D 30, 40-41 (N.Y. 1991)

(PER CURIAM) ......................................................................... 15

IN RE LACEY, 283 N.W.2D 250, 251 (S.D. 1979) ................ 15, 16

IN RE PRIMUS, 436 U.S. 412, 432-433 (1978) ............................ 22

IN RE RAGGIO, 487 P.2D 499, 500 (NEV. 1971) (PER

CURIAM) .......................................................................14, 15, 16

IN RE RUFFALO, 390 U.S. 544, 551(1968) ................................ 24

IN RE SHAY, 117 P. 442, 443-44 (CAL. 1911) ............................ 16

IN RE WESTFALL, 808 S.W.2D 829, 831 (MO. 1991) .....14, 15, 16

IN RE WILKINS, 777 N.E.2D 714, 715-16 (IND. 2002)

(PER CURIAM), MODIFIED, 782 N.E.2D 985, 987

(IND. 2003)............................................................................... 14

JANKLOW V. NEWSWEEK, INC., 788 F.2D 1300, 1306

(8' CIR. (EN BANE)), CERT. DENIED, 479 U.S. 883

(1986)........................................................................................ 24

KY. BAR ASS'N V. HELERINGER, 602 S.W.2D 165,

166 (KY. 1980) (PER CURIAM)...........................................15, 17

KY. BAR ASS'N V. NALL, 599 S.W.2D 899, 899 (KY.

1980) (PER CURIAM) ............................................................... 15

LANDMARK COMMUNICATIONS, INC. V. VIRGINIA,

435 U.S. 829, 839 (1978) .......................................................... 22

NEW YORK TIMES V. SULLIVAN , 376 US 254 (1964) ... PASSIM

OFFICE OF DISCIPLINARY COUNSEL V. GARDNER,

793 N.E.2D 425, 427 (OHIO 2003) (PER CURIAM)................. 14

PENNEKAMP V. FLORIDA, 328 US 331 (1946) ......................... 25

PETERS V. PINE MEADOW RANCH HOME ASS'N,

151 P.3D 962, 967-68 (UTAH 2007)......................................... 14

PICKERING V. BOARD OF EDUCATION, 391 U.S. 563

(1968)........................................................................................ 25

RAMIREZ V. STATE BAR OF CAL., 619 P.2D 399, 406,

414 (CAL. 1980) (PER CURIAM) ........................................14, 16

RAMSEY V. BD. OF PROF'L RESPONSIBILITY OF

THE SUPREME COURT OF TENN., 771 S.W.2D 116,

120-21 (TENN. 1989) ............................................................... 15

RICHMOND NEWSPAPERS, INC. V. VIRGINIA, 448

U.S. 555, 575 (1980)................................................................. 24

ST. AMANT V. THOMPSON 390 U.S. 727, 731 (1968)................. 21

STANDING COMM. ON DISCIPLINE FOR THE U.S.

DIST. COURT FOR THE CENT. DIST. OF CAL. V.

YAGMAN, 55 F.3D 1430 .......................................................... 17

STATE OF OKLAHOMA V. PORTER, 766 P.2D 958, 966-

970 (OKLA.1988)...................................................................... 22

STATE V. GARRISON, 244 LA. 787, 794, 154 SO. 2D

400, 402 (1963), REV'D, 379 U.S. 64 (1964) ............................ 26

U.S. DIST. COURT FOR THE E. DIST. OF WASH. V.

SANDLIN, 12 F.3D 861 ............................................................ 15

UNITED STATES V. BROWN, 72 F.3D 25, 29 (5TH

CIR.1995) ................................................................................. 24

Statutes

28 U.S.C. § 1254(1)........................................................................ 1

28 U.S.C. Section 1257(a)............................................................. 1

Minn. Stat. 484.69 ......................................................................... 4

Rules

Minn. R. Prof. Conduct 3.1 .......................................................... 9

Minn. R. Prof. Conduct 8.2 ........................................................ 26

Minn. R. Prof. Conduct 8.2(a)................................................ 9, 10

Misc.

TRESA BALDAS, LAWYERS CRITICAL OF JUDGES

FIGHT FOR RIGHTS, NAT'L L.J., FEB. 9, 2009,

AVAILABLE AT

HTTP://WWW.LAW.COM/JSP/NLJ/PUBARTICLENL

J.JSP?ID=1202428070373 ........................................................ 14

OPINIONS BELOW

The January 17, 2018 Opinion of the Minnesota

Supreme Court, case no A-16-1282 attached as

Appendix A, page 1a is published. The Findings of Fact

and Conclusions of Law, Recommendation for

Discipline and Memorandum, dated January 3, 2017

Case no. A-16-1282, is not reported and is attached as

Appendix B, page 46a and unpublished.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1)

for writ of certiorari in a civil case after rendition of a

judgment or decree of a court of appeal. A judgment of

the Minnesota Supreme Court was entered on January

17, 2018.

The jurisdiction of this Court is also invoked under 28

U.S.C. Section 1257(a)

RELEVANT PROVISIONS INVOLVED

AMENDENT I

Congress shall make no law respecting an

establishment of religion, or prohibiting, the free

exercise thereof; or abridging the freedom of

speech, or of the press, or the right of the people

peaceably to assemble, and to petition the

government for a redress of grievances. U.S.

Const. I; accord. Minn. Const. art. I, §3.

AMENDMENT XIV

Section 1. All persons born or naturalized in the

United States and subject to the jurisdiction

thereof are citizens of the United States and of

the state wherein they reside. No state shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States, nor shall any state deprive any person of

life, liberty or property without due process of

law, nor deny to any person within its

jurisdiction the equal protection of the laws. U.S.

Const. XIV; accord Minn. Const. art. I, §7

Minnesota Rule of Professional Conduct, 8.2 (a)

Judicial and Legal Officials

A lawyer shall not make a statement that the

lawyer knows to be false or with reckless

disregard as to its truth or falsity concerning the

qualifications or integrity of a judge, adjudicatory

officer, or public legal officer, or of a candidate for

election or appointment to judicial or legal office.

ABA Model Rule of Professional Conduct (MRPC)

8.2 (1) Maintaining the Integrity of the Profession,

Judicial & Legal Officials:

A lawyer shall not make a statement that the

lawyer knows to be false or with reckless disregard

as to its truth or falsity concerning the

qualifications or integrity of a judge, adjudicatory

officer or public legal officer, or of a candidate for

election or appointment to judicial or legal office.

STATEMENT

Background

Michelle Lowney MacDonald has been licensed

to practice law in Minnesota since 1987, and continually

practiced law, until on January 17, 2018, the Minnesota

Supreme

court

approved

the

findings

and

recommendation of a referee that Ms. MacDonald be

suspended for 60 days, subject to two years of

probation upon reinstatement under supervision.

Appendix A

Ms. MacDonald asserted that the first

amendment prohibits disciplining her on the basis of

her communications about a judge, because the

communications did not make or imply false statements

of fact, and because the Director’s claim of wrongdoing

was not proved at a hearing due to the high burden of

“clear and convincing evidence” which must be

establish in every case.

Letters to Board of Judicial Standards about

Judge Knutson

On December 26, 2013, Ms. MacDonald wrote a

letter to the Board on Judicial Standards to complain

about Judge David Knutson, a state agency that

responds to complaints about state court Judges who

violate the Judicial Code of Conduct, of which Judge

Knutson was a member.

In her December 26, 2013 letter she complained

about “ongoing retaliation” against herself and her

client,

Sandra

Grazzini-Rucki

“warranting

investigation.” She alleged “evidence of improper case

assignments “, “usurping of court files”, and failing to

report or involve the juvenile court and child protection

after children ran away. Her complaint to the Board

included copies of Affidavits filed in a Federal Civil

Rights Complaint, Grazzini-Rucki, et al v. David

Knutson, individually, et al, U.S. District Court File

No.: 0:13-CV-02477 (SRN/JSM).

Most significantly, Ms. MacDonald reported to

the Board that “during a break in the court’s child

custody trial on September 12, 2013, sheriff deputies

“arrested” me and then brought me back to Judge

Knutson’s courtroom in handcuffs and a wheelchair,

with no eye glasses, hair piece, shoes, and I was made to

continue my participation in the custody trial in this

debilitated, humiliating state, without my files, my

client, a pen, paper, and with the Rucki children still

missing…”

She further reported that Judge Knutson’s “final

custody order was attached as an Exhibit in the federal

court action” requesting a dismissal. She wrote:

“I am certain your independent agency finds this

behavior of a Judge unimaginable, in particular,

the act “perfunctory trial” about missing

children without their parent, and with a

litigant’s attorney in handcuffs”. She continued

that such treatment of a citizen, and her attorney

is “inconceivable,” and that the ordeal has been a

“nightmare” for her client, and “of late, myself”.

Supplements to Letter to the Board of Judicial

Standards

Based on requests from the Board, Ms.

MacDonald supplemented her letters.

On February 7, 2014, she requested the Board

investigate violations to Minn. Stat. 484.69, the

improper assignments, and usurping of files by Judge

Knutson.

On March 11, 2014, she reported that “the

retaliation against myself and my client has been

continuous, and is overwhelming.” She stated that in a

sworn affidavit Judge Knutson said did not have

personal knowledge of the handcuffs, contrary to the

sworn testimony of the deputies sheriffs, “who say he

[Judge Knutson] knew I was in handcuffs, and a

wheelchair and ordered me returned to finish the trial.”

In addition she reported that she learned that

Judge Knutson provided “verbal permission for search

and seizure of her phone, camera, which is not legal and

violated 4th Amendment,” providing testimony of the

deputies.

On April 2, 2014, Ms. MacDonald wrote another

supplement, responding to the board’s request for a

transcript of sheriff’s deputy to support her assertion

that Judge Knutson had personal knowledge that she

was in handcuffs during the court trial he presided

over, and where deputies say Judge Knutson absolutely

knew of her condition before he ordered them to return

her to continue the court trial.

Ms. MacDonald repeated that “Judge Knutson

called an afternoon break, left the bench, where I was

wheeled back to a jail cell again. After the lunch break,

I was returned once again to the courtroom in

handcuffs and a wheel chair, in this demoralizing state

to again continue my participation in the court trial.”

She added that deputies “testified to a culture of

Judges in Dakota County regularly giving verbal

permission for searches of citizens violative of the 4th

Amendment to the Minnesota and State Constitutions.”

Judge Knutson’s Letter to the Board of Lawyers

Professional Responsibility

On January 11, 2014, following her initial letter

to the Board on Judicial Standards, Judge Knutson

wrote an undated letter complaining to the Lawyers

Board of Professional Responsibility about Ms.

MacDonald which she received.

Disciplinary Proceedings and Exhibits

On June 8, 2016, the Director of the Lawyer’s

Board of Professional Responsibility filed a Petition for

Disciplinary Action, based on Judge Knutson’s letter.

The Director’s Exhibits consisted of court

registers of actions, court orders, court transcripts,

court pleadings and memorandums, court docket

sheets, citations, video of jail cell and holding area,

appellate court pleadings, letters and orders, letters to

attorneys involved in the case, affidavits, letters from

Board of Judicial Standards, letter/motion to federal

court and orders. The pleadings were in multiple cases

involving Ms. MacDonald’s client, Sandra GrazziniRucki. See divorce case Dakota County Court file no.

19-FA-11-1273, U.S. District Court Case no. 13-cv02477; cases v. Ms. MacDonald that were dismissed

(Dakota County District Court 19HA-CR-13-2934); G-R

court of appeals, A14-0139, Court of Appeals, GrazziniRucki, No. A14-0524

Ms. MacDonald’s own case regarding civil rights

against others, U.S. District Court Case 15-CV-01590,

and the first amended complaint therein was also

included.

The Exhibits also included pleadings, orders,

transcripts, in a matter unrelated to Ms. Grazzini-

Rucki, where Ms. MacDonald also made a constitutional

challenge to Minnesota’s Family Law, on behalf of a

client, and where neither the client or judge

complained. See D’Costa, Dakota County District Court

file no. 27,FA,13,2583) and MN court of Appeals, No.

A15-0655).

Hearing and Recommended Findings by Referee

On November 15, 2016, an evidentiary hearing

took place before a Referee appointed by the Minnesota

Supreme Court, where Judge Knutson and Ms.

MacDonald testified.

On January 3, 2017, the Referee issued findings

and recommendation, and adopted almost all of the

Director’s proposed findings of fact, conclusions of law

and recommendations nearly verbatim. Appendix B

The Referee found that Ms. MacDonald violated

Rule 8 (a) by making made false statements in reckless

disregard for the truth concerning the integrity of the

judge as follows:

“43. Respondent's statement regarding Judge

Knutson's lack of impartiality "since day one"

was false and made in reckless disregard of the

truth.”

110. The "factual allegations" within the

federal lawsuit were, in part, false and made

with reckless disregard as to their truth or

falsity.

The Referee found also that “The letters to the

BJS include the same complaints made within the

federal lawsuit outlined above. Respondent sent

copies of all of her letters to the BJS to numerous

elected officials. As with the federal lawsuit,

Respondent's statements were false and made with a

reckless disregard as to their truth or falsity.” (7a)

And finally, the referee writes:

“Respondent's on-going statements and "factual

allegations" within the federal lawsuit's

Amended Complaint were false and in reckless

disregard of their truth or falsity.” (86a)

Consequently, in a conclusion of law, the Referee

claims in conclusion 6,

“The Director has proven by clear and

convincing evidence that Respondent's false

statements made with reckless disregard for the

truth or falsity of those statements about Judge

Knutson's impartiality and integrity in multiple

forums violated Rule 8.2(a) (MRPC) and Rule

8.4(d) (MRPC) “(82a)

Appeal to the Minnesota Supreme Court

Ms. MacDonald appealed the Referee’s findings

and recommendations to the Minnesota Supreme Court.

On January 17, 2018, the Court adopted the Referee’s

findings. Adopting the Referee’s Findings. Appendix A

The Court summarized them, finding that:

“MacDonald then moved for the judge's

recusal from the case based on the pending

federal lawsuit against him. The judge denied

the motion, at which point MacDonald stated,

"[a]nd you are telling me that you can be

impartial in this trial, which you haven't done

since day one." The referee found that this

statement violated Minn. R. Prof. Conduct 8.2(a)

and 8.4(d), because it was made with reckless

disregard for the truth.” (4a)

In concluding that Ms. MacDonald violated

Minn. R. Prof. 8.2(a), the Court cited her client’s civil

rights lawsuit finding that:

“The complaint alleged that the judge had

retaliated against S.G. and MacDonald,

compromised

the

Minnesota

Court

Information System (MNCIS), "usurped" case

files with the assistance of opposing counsel,

signed documents that he knew were false, and

acted without jurisdiction or legal authorization.

The federal district court dismissed all of the

claims in the complaint, describing them as "futile"

and noting that "nothing in the record supports

the[m]."

When asked at the disciplinary hearing about the

basis for her allegations, MacDonald responded, "[t]he

record speaks for itself."

The referee concluded that MacDonald violated

Minn. R. Prof. Conduct 3.1, 8.2(a), and 8.4(d) by

making recklessly false allegations against the judge

that no reasonable attorney would have made based

on the evidence available. (7a).

The Court cited the letters to the Board on

Judicial Standards, finding that she violated Minn.

R. Prof. Conduct 8.2(a):

“In addition to filing a federal lawsuit against

the district judge in S.G.'s case, MacDonald

wrote a letter to the Board on Judicial Standards

complaining about the judge's behavior and

asserting that he had acted unethically during

S.G.'s trial. In total, she wrote four letters to the

Board, each impugning the judge's integrity and

repeating the allegations from the federal

lawsuit. She sent copies of these letters to

numerous elected officials and made similar

remarks in letters to other attorneys. The referee

concluded that MacDonald's statements were

false, made with reckless disregard for the

truth, and violated Minn. R. Prof. Conduct

8.2(a) and 8.4(d). (7a)”

In addressing First Amendment rights, the Supreme

Court held that:

“An attorney's good-faith reliance on her client's

representations is not an absolute defense to

attorney discipline, nor does the First

Amendment immunize an attorney's false

statements impugning the integrity of a judge.”

(1a)

The Court also held that:

A 60-day suspension, followed by 2 years of

supervised probation, is the appropriate

discipline for an attorney who failed to

competently represent a client; made false

statements about the integrity of a judge

with reckless disregard for the truth. (1a)

This appeal followed.

Attorney MacDonald’s Background

For 30 years, Ms. MacDonald has been an

attorney

good

standing,

serving

conciliation/small claims court Judge, Hennepin County

for 22 of those years; and Adjunct Referee/Arbitrator

in family and civil court. She received a Years of

Service Recognition Award, Conciliation Court,

Hennepin County.

Ms. MacDonald received the Northstar Lawyers,

Pro Bono award 2013, 2014, 2015, and 2016.

Ms. MacDonald has represented thousands of

clients, before hundreds of Judges, including lead

counsel on over Sixty (60) appellate decisions, which

include amicus briefs, appearances before the Appellate

and Minnesota Supreme Court, and Petitions to the

United States Supreme Court.

Ms. MacDonald is Founder, Volunteer President

and Board Member of Family Innocence, a nonprofit

dedicated to keeping families out of court: resolving

conflicts and injustices peacefully (2011- present). She

is a founding member of Cooperative Private Divorce

Project (Divorce without courts), with regular meetings

since 2013 for family court reform to develop proposed

legislation, Cooperative Private Divorce Bill HF 1348,

which creates an administrative pathway to divorce

that skips the court adversarial system.

She is

founding member of Child Custody/Parenting Time

Dialogue Group, with regular meetings since inception,

2013.

Ms. MacDonald is a longtime member of the

Minnesota State Bar Association, was chairman of the

professionalism committee, and currently serves on the

Family Law, ADR and Children’s Law sections. She is

a member of the Amdahl Inn of Court.

REASONS FOR GRANTING THE PETITION

Across the country, attorneys are generally

prohibited from and severely punished for impugning

judicial integrity. In scores of cases, both state and

federal courts have disciplined attorneys for making

disparaging remarks about the judiciary, and these

courts have almost universally rejected the

constitutional standard established by the Supreme

Court in New York Times v. Sullivan , 376 US 254

(1964) and Garrison v. Louisiana 379 US 64 (1964) for

punishing speech regarding government officials. The

punishment imposed for impugning judicial reputation

is often severe, with suspension from the practice of law

being typical. Attorneys have been punished regardless

of whether they were engaged in a representative

capacity when making the statements and regardless of

the forum in which the statements were made.

After this court’s decision in Garrison v.

Louisiana, 379 US 64,74-75 (1964) (explaining “speech

concerning public affairs is more than self-expression; it

is the essence of self-government”)(quoting N.Y. Times

Co. v. Sullivan, 376 U.S. 254, 270 (1964) the American

Bar Association (ABA) expressly adopted the Sullivan

standard in Model Rule of Professional Conduct

(MRPC) 8.2 (a) for regulating lawyer speech regarding

the judiciary. The Model Rule is identical to the

Minnesota rule. 1 Thus, the current regulatory regime

for the vast majority of states merely prohibits lawyers

from making a statement “that the lawyer knows to be

false or with reckless disregard as to its truth or falsity

concerning the qualifications or integrity of a judge.”

See Model Rules of Professional Conduct R. 8.2(a)(2018)

The ABA expressly recognized the applicability of

Garrison and Sullivan, and the drafters of Model Rules

intentionally incorporated the Sullivan standard. See

Model Rules of Prof'l Conduct R. 8.2 legal background

at 206 (Proposed Final Draft 1981). The drafters also

stated that: “[t]he critical factors in constitutional

analysis are the statement's falsity and the individual's

knowledge concerning its falsity at the time of the

utterance,” again citing Garrison. Id.

In practice, as here, the regulation has been

interpreted to punish speech by attorneys that impugn

the integrity of the judiciary without requiring a

showing of knowledge or reckless disregard to falsity.

Attorneys Sanctioned for Speech: An Epidemic

Attorneys sanctioned for speech appears

epidemic. Professor Margaret Tarkington’s research is

worth repeating here. 2 In "The Truth Be Damned: The

First Amendment, Attorney Speech, and Judicial

Reputation, she reveals that statements by attorneys

subject to sanction have been as mild as accusing the

judiciary of being result-oriented or politically

motivated.3 At the other end of the spectrum are

See The Truth Be Damned: The First Amendment, Attorney

Speech, and Judicial Reputation, Margaret Tarkington,

Georgetown Law Journal, Vol. 97, p. 1567, 2009 (hereinafter

“Truth”); A Free Speech Right to Impugn Judicial Integrity in

Court Proceedings, Margaret Tarkington, Boston College Law

Review, Volume 51, Issue 2, Article 2, 2010.

For example, in Idaho State Bar v. Topp, 925 P2d 1113, 1115

(Idaho 1996), an attorney who attended a hearing (and who was not

involved in the case) was reprimanded for opining to the press that

the ultimate decision differed from a similar case because the judge

in the first decision “wasn't worried about the political

ramifications.” His statement “necessarily implied that Judge

accusations of widespread judicial corruption and

conspiracy.4 Rarely do attorneys resort to crude

language or expletives.5

Nor does the forum in which the speech is made

by the attorney appear to make much difference in

terms of the standard applied or punishment imposed.

Attorneys are punished for allegations in briefs and

filings with courts,6 statements to the press,7 letters to

Michaud based his decision on completely irrelevant and improper

considerations” and thus “impugned his integrity.” See id. at 1117;

see also In re Reed, 716 N.E.2d at 427; In re Westfall, 808 S.W.2d

829, 831 (Mo. 1991); In re Raggio, 487 P.2d 499, 500 (Nev. 1971)

(per curiam).

In Committee on Legal Ethics of the West Virginia State Bar v.

Farber, 408 S.E.2d 274, 284 (W. Va. 1991), the attorney accused a

judge of being part of a secret Masonic plot to cover up the arson of

a local establishment.

But see Grievance Adm'r v. Fieger, 719 N.W.2d 123, 129 (Mich.

2006) (making crude remarks on radio show about judges after

verdict for client was reversed on appeal), cert. denied, 549 U.S.

1205 (2007); Tresa Baldas, Lawyers Critical of Judges Fight for

Rights,

Nat'l

L.J.,

Feb.

2009,

available

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202428070373

(stating that comments posted by lawyers on blogs are sometimes

crude and “vile”).

In re Abbott, 925 A.2d 482, 483 (Del. 2007) (per curiam); In re

Wilkins, 777 N.E.2d 714, 715-16 (Ind. 2002) (per curiam), modified,

782 N.E.2d 985, 987 (Ind. 2003); Office of Disciplinary Counsel v.

Gardner, 793 N.E.2d 425, 427 (Ohio 2003) (per curiam); Peters v.

Pine Meadow Ranch Home Ass'n, 151 P.3d 962, 967-68 (Utah 2007).

Attorneys have been punished for statements about the judiciary

in briefs to the court even when the suit is filed against judges, and

the question at issue is whether an exception to judicial immunity

exists. See Ramirez v. State Bar of Cal., 619 P.2d 399, 406, 414

(Cal. 1980) (per curiam).

Topp, 925 P.2d at 1115 (statements to press that implied judge's

decision was politically motivated); In re Reed, 716 N.E.2d at 427

(statements in interview with press); In re Atanga, 636 N.E.2d

1253. 1256 (Ind. 1994) (per curiam) (statements in interview for

the judiciary,8 communications with an authority to

complain about a judge,9 pamphlets or campaign

ACLU local newsletter); Ky. Bar Ass'n v. Heleringer, 602 S.W.2d

165, 166 (Ky. 1980) (per curiam) (statement to press criticizing

judge for holding restraining order hearing ex parte); Ky. Bar

Ass'n v. Nall, 599 S.W.2d 899, 899 (Ky. 1980) (per curiam)

(statements in radio interview); Fieger, 719 N.W.2d 123

(statements on radio show); In re Westfall, 808 S.W.2d at 831

(statements to press criticizing appellate decision that had been

released); In re Holtzman, 577 N.E.2d 30, 40-41 (N.Y. 1991) (per

curiam) (letter sent to press criticizing judge's treatment of sexual

assault victim); In re Raggio, 487 P.2d at 500 (statements made in

television interview criticizing decision of Nevada Supreme Court

to have death penalty case reheard); In re Lacey, 283 N.W.2d 250,

251 (S.D. 1979) (statements to press criticizing state courts'

handling of the case after appellate decision received); Ramsey v.

Bd. of Prof'l Responsibility of the Supreme Court of Tenn., 771

S.W.2d 116, 120-21 (Tenn. 1989) (statements to the press

complaining about a judge and then the disciplinary process).

In re Evans, 801 F.2d 703, 703-04 (4th Cir. 1986) (letter sent to

magistrate after case was on appeal and no longer before the

magistrate or the district court); In re Guy, 756 A.2d 875, 877-78

(Del. 2000) (letter sent to judge); Fla. Bar v. Ray, 797 So. 2d 556,

557 (Fla. 2001) (per curiam) (three letters sent to chief immigration

judge complaining about another immigration judge); In re Arnold,

56 P.3d 259, 263 (Kan. 2002) (per curiam) (disqualified attorney

sent letter to judge).

U.S. Dist. Court for the E. Dist. of Wash. v. Sandlin, 12 F.3d 861,

863-64 (9th Cir. 1993) (statements made to FBI and appropriate

authorities at U.S. Attorney's office regarding judge's editing of

transcripts); Ray, 797 So. 2d at 560 (letter sent to chief

immigration judge complaining about another immigration judge,

which Ray and amici argued was “an accepted manner in which to

seek redress when an attorney is having difficulties with an

immigration judge”); In re Disciplinary Action Against Graham,

453 N.W.2d 313, 315, n.3 (Minn. 1990) (per curiam) (statements

made in letter to U.S. Attorney, in judicial misconduct complaint,

and in affidavit in support of motion to recuse, although court

indicates that the charges were also released to the public).

literature,10 comments posted on blogs,11 and even

correspondence with friends, family, and clients.12

Attorneys have been punished when the

statements made could not have prejudiced or affected

a pending proceeding13 and when the statements are

See, e.g., In re Glenn, 130 N.W.2d 672, 674-75 (Iowa 1964) (leaflet

circulated in community); In re Charges of Unprofessional Conduct

Involving File No. 17139, 720 N.W.2d 807, 810 (Minn. 2006)

(statement by judicial candidate's campaign issued about

incumbent judge).

See, e.g., Baldas, supra note 25 (reporting pending proceedings

in various states regarding discipline for comments posted by

lawyers on blogs, including a Florida attorney who is being

disciplined for describing a judge on a blog as an “‘evil, unfair

witch’ with an ‘ugly condescending attitude”’).

See, e.g., In re Pyle, 156 P.3d 1231, 1233-36 (Kan. 2007) (per

curiam) (letter sent to family, friends, and clients); In re Shay, 117

P. 442, 443-44 (Cal. 1911) (letter sent to client). Courts still rely on

Shay as authority. See, e.g., Ramirez v. State Bar of Cal., 619 P.2d

399, 411 (Cal. 1980).

See, e.g., In re Glenn, 130 N.W.2d at 674-75 (pamphlet after cases

decided with no appeal pending); In re Pyle, 156 P.3d 1231

(explanatory letter regarding earlier discipline sent to family,

friends, and clients). There are several cases where statements are

made to the press after an appellate decision has been handed

down. See, e.g. Grievance Adm'r v. Fieger, 719 N.W.2d 123, 129

(Mich. 2006), cert. denied, 549 U.S. 1205 (2007); In re Westfall, 808

S.W.2d 829, 831 (Mo. 1991); In re Raggio, 487 P.2d 499, 500 (Nev.

1971) (per curiam); In re Lacey, 283 N.W.2d 250, 251 (S.D. 1979);

see also In re Evans, 801 F.2d at 704-05, 708 (attorney disbarred

from United States District Court after sending letter accusing

magistrate of incompetence and pro-Jewish bias, where attorney

waited to send letter until after district court had adopted

magistrate's ruling and Fourth Circuit had rejected summary

reversal, although full disposition at the Fourth Circuit was still

pending). Some courts have implicitly recognized a right of an

attorney to criticize the judiciary after a case is no longer pending.

See In re Cobb, 838 N.E.2d 1197, 1210 (Mass. 2005) (holding that

the state has the power “to regulate the speech of an attorney

made by attorneys who are not engaged in a

representative capacity before the criticized court.14

There are certainly others.15

Notably Professor Tarkington’s article excludes

cases in which the speech was made verbally in a

courtroom during a court proceeding or in which the

speech was made at a time or in a manner that could

potentially influence a jury trial. See Truth at 15721573.

This Court has not had occasion to address the

issue of criticism of the judicial system and the

judiciary in various cases involving attorneys.

Professor Tarkington’s contends, as does this

Petitioner, that an appropriate standard for evaluating

the content of speech is found in New York times v.

Sullivan, and Garrison v. Louisiana.

In order to preserve the First Amendment

rights of attorneys who have filed, or may file in the

future, complaints that are critical of members of the

representing clients in pending cases,” suggesting it does not once

a case is no longer pending); In re Graham, 453 N.W.2d at 321

(stating that the First Amendment protects the ability to “criticize

rulings of the court once litigation was complete or to criticize

judicial conduct or even integrity” (emphasis added)).

Standing Comm. on Discipline for the U.S. Dist. Court for the

Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430, 1437, 1440 (9th Cir.

1995) (initially suspended for one year for comment sent to

Prentice Hall for publication in the Almanac of the Federal

Judiciary suspension reversed by Ninth Circuit, but Ninth Circuit

still rejected applicability of Sullivan standard); Idaho State Bar v.

Topp, 925 P.2d 1113, 1115 (Idaho 1996); In re Pyle, 156 P.3d at

1233-34, 1248; Ky. Bar Ass'n v. Heleringer, 602 S.W.2d 165, 166

(Ky. 1980) (per curiam).

See Lanre O. Amu, U.S. Supreme Court No. 14-689;2014 WL

6967828 (three year suspension for letters to judges where judges

did not complain)

judiciary, this Court should grant certiorari to clarify

the due process requirements that must be met before

attorneys can be punished for complaints that are

critical of the judiciary.

The Fundamental Issue is Free Speech in this

Exemplary Case

The fundamental issue in this case is the free

speech right to criticize the judiciary that must be

recognized for attorneys when acting as officers of the

court, and making statements in court proceedings, and

in particularly communications to an authority

accepting complaints about Judges.

Attorney criticism of the judicial system is an

important and substantial right in that attorneys have

special knowledge of the judicial system and are in a

special position to use that knowledge to improve the

system and correct its mistakes.

The application of the rule here applies a

standard which prohibits statements in and of

themselves critical of a Judge, and as such the standard

used here is an unconstitutional restriction of an

attorney's right to free speech.

Ms. MacDonald’s statements in her letters to the

Board of Judicial Standards, the very agency where one

reports misconduct by Judges, were true, and the fact

that the Judge continued with the trial with a parties’

attorney in handcuffs, was a threat to the

administration of justice and constitutes an obstruction

of justice by the Judge himself.

Minnesota Rules of Professional Conduct, Rule 8.2 (a)

states that “A lawyer shall not make a statement that

the lawyer knows to be false or with reckless disregard

as to its truth or falsity concerning the qualifications or

integrity of a judge, adjudicatory officer, or public legal

officer, or of a candidate for election or appointment to

judicial or legal office.”

Accordingly, Ms. MacDonald was disciplined by

the Minnesota Supreme Court without making false

statements concerning the integrity of a judge, but for

statements in

letters to the Board of Judicial

Standards, (the agency that accepts complaints against

Judges), and a Civil Rights Complaint she filed in the

United States District Court, District of Minnesota,

Case no. 13-cv-2477. Even though Ms. MacDonald did

not make false statements, the court essentially refers

to statements in her letters and the civil rights

complaint, indicating the statements, in and of

themselves, were impugning.

There was no showing of knowledge of or

reckless disregard to falsity, as required by Garrison.

In fact, the statements were true, and the Judge did not

testify or state in his letter complaint that that Ms.

MacDonald lied in the Civil Rights Complaint or letters

to the Board. The civil rights complaint brought on

behalf of Ms. MacDonald’s client was dismissed

pursuant to rule 12(b) (where facts in the complaint are

taken as true) based on judicial immunity grounds. (7a,

30a) Ms. MacDonald appealed the judgment to the Eighth

Circuit Court of Appeals without success, 597 Fed. Appx.

202 (8`1' Cir. 2015); and filed a Petition for Writ of

Certiorari with the United States Supreme Court, which

was denied. Court File 15-220, 136 S.Ct. 361 (2015); The

Court parroted the statements, without specifying

what exactly was false or in reckless disregard of the

truth about the Judge’s qualifications or integrity. In

her letters to the Board, Ms. MacDonald made these

same claims, of being "in a wheel chair and in

handcuffs," without "a pen, paper" and "eyeglasses,"

"hair piece" and "shoes," during the child custody trial,

with no client. All of her claims were true.

This Petition can give this Court the opportunity

to establish guidelines for attorney speech, by applying

the standard originally adopted by the American Bar

Association in its Model rule, which was rejected by the

Minnesota Supreme Court regarding maintaining the

integrity of the profession. Given the present state of

the law, guidance to the lower federal courts and state

courts is clearly necessary.

Ms. MacDonald could not be disciplined without

a showing that she had known her statements to be

false or had acted with “reckless disregard” of truth or

falsity, as that term is defined in New York Times Co.

v. Sullivan, 376 U.S. 254 (1964), and its progeny.

Illustrating the divergence of opinion across the

country, the Minnesota Supreme Court ruled that

attorneys are subject to a modified version of the

constitutional standard for defamation claims. The

standard, adapted from New York Times Co. v.

Sullivan, 376 U.S. 254 (1964), applies a version of the

actual-malice standard from defamation cases, but the

Minnesota Court modified it using a state court case to

ask what a "reasonable attorney . . . would do in the

same or similar circumstances." Graham, 453 N.W.2d

at 321-22,321 n.6. The Court wrongly reasoned that its

“modified standard” provides adequate protection for

attorney speech but also preserves the court’s ability to

discipline attorneys who make baseless allegations

against judges or other attorneys during the course of

litigation. See id. at 321-22.

Applying the modified actual-malice test from

Graham, the Court ruled that “MacDonald is not

entitled to First Amendment protection for her

statements because no reasonable attorney in

MacDonald's shoes would have made such serious

allegations about a judge's integrity and impartiality

without substantiating evidence. Our conclusion applies

equally to her allegations in the federal lawsuit, in her

complaints to the Board on Judicial Standards, and in

her correspondence to other attorneys and public

officials. As we have held, when "an attorney abuses"

her First Amendment rights, "she is subject to

discipline." Id. at 321. (14a-15a)”11_

The Sullivan standard for determining whether a

statement is made with reckless disregard as to truth

or falsity has been extensively litigated and is

determined by examining the speaker's subjective

intent, which requires “that the defendant in fact

entertained serious doubts as to the truth of his

publication.” St. Amant v. Thompson 390 U.S. 727, 731

(1968) (emphasis added). An objective standard--what

a reasonable person would believe was true or false-has been repeatedly rejected, beginning in Garrison. Id

Professor Tarkington’s research is that most

state judiciaries have read the Sullivan standard out of

the language of MPRC 8.2 interpreting it to punish

speech in and of itself if it impunes the integrity of the

judiciary, contrary to the drafters of the Model Rules

which intentionally incorporated the Sullivan standard.

Judges, in their capacities as individuals or

courts, are entitled to no greater immunity from

criticism than other persons or institutions. Landmark

Also see Truth at 1587- 1588

(See id. R. 8.2 legal background at 206 (Proposed Final Draft

1981); see also Truth at 1569

Communications, Inc. v. Virginia, 435 U.S. 829, 839

(1978).

Example of a Case Applying Sullivan

This Court is asked to look into adopting the

reasoning and procedure where a showing of knowledge

of or reckless disregard to falsity is required. For

example, in In re Green, the court concluded that the

First Amendment prohibited disciplining an attorney

on the basis of his communications with the judge

because the communications did not make or imply

false statements of fact. Id. at 1078 18 In Green, the

court noted that if an attorney's activity or speech is

protected by the First Amendment, disciplinary rules

governing the legal profession cannot punish the

attorney's conduct. (citing In re Primus, 436 U.S. 412,

432-433 (1978); Bates v. State Bar of Arizona, 433 U.S.

350, 355, 365, 384 (1977); State of Oklahoma v. Porter,

766 P.2d 958, 966-970 (Okla.1988); see also Gentile v.

State Bar of Nevada, 501 U.S. 1030, 1054 (1991)

(Kennedy, J., dissenting in part). Green, 11 P.3d 1078,

1083 (Colo. 2000) (per curiam)

Citing the reasoning as the interests in

protecting attorney speech critical of judges, the Green

Court agreed with “those jurisdictions that have

applied a version of the Sullivan standard when

considering discipline of attorneys who criticize judges.

Green held that under the Sullivan standard, a twopart inquiry applies in determining whether an

attorney may be disciplined for statements criticizing a

However Green did so without reaching the question of whether

a subjective or objective standard applied See In re Green, 11 P.3d

1078, 1086 n.7 (Colo. 2000) (per curiam).

judge: (1) whether the disciplinary authority has

proven that the statement was a false statement of fact

(or a statement of opinion that necessarily implies an

undisclosed false assertion of fact); and (2) assuming the

statement is false, whether the attorney uttered the

statement with actual malice — that is, with knowledge

that it was false or with reckless disregard as to its

truth. Id at 1085

The Green Court further noted that “[The First

Amendment] prohibits a public official from recovering

damages for a defamatory falsehood relating to his

official conduct unless he proves that the statement was

made with `actual malice' — that is, with knowledge

that it was false or with reckless disregard of whether

it was false or not, citing New York Times v. Sullivan,

376 U.S. 254, 279-80 (1964). The burden of proving

actual malice is on the plaintiff because otherwise

"would-be critics of official conduct may be deterred

from voicing their criticism, even though it is believed

to be true and even though it is in fact true, because of

doubt whether it can be proved in court or fear of the

expense of having to do so." Id. at 279, 84 S.Ct. 710.

Green determined, rather, that reckless disregard

means that a statement is unprotected if the speaker

made it "with a high degree of awareness of . . .

probable falsity,' . . . or . . . `entertained serious doubts

as to the truth of his publication.'" Harte-Hanks

Communications, Inc. v. Connaughton, 491 U.S. 657,

667 (1989) (quoting Garrison v. Louisiana, 379 U.S. 64,

74 (1964), and St. Amant v. Thompson, 390 U.S. 727,

731, 88 S. Ct. 1323, 20 L.Ed.2d 262 (1968), respectively).

Id at 1084

Green further noted that, although the Supreme

Court has never considered the New York Times v.

Sullivan test in the context of attorney discipline based

upon criticism of a judge, disciplining an attorney for

criticizing a judge is analogous to a defamation action

by a public official for the purpose of this First

Amendment analysis. The Court considers attorney

discipline a "quasi-criminal" sanction. (citing In re

Ruffalo, 390 U.S. 544, 551(1968); and United States v.

Brown, 72 F.3d 25, 29 (5th Cir.1995). The Supreme

Court has applied the Sullivan test of actual malice to

the criminal defamation prosecution of a lawyer for

criticism of a judge, finding no relevant distinction

between the civil and criminal contexts. See Garrison,

379 U.S. at 74, 85 . Id at1084. These cases reason that

the protection of attorney criticism of judges is similar

to the protection of criticism of other public officials,

relying upon the principal purpose of the First

Amendment: safeguarding public discussion of

governmental affairs. See Richmond Newspapers, Inc.

v. Virginia, 448 U.S. 555, 575 (1980).

Core Political Speech

An individual's subjective opinion is afforded First

Amendment protection, Foley v. WCCO Television, Inc.,

449 N.W.2d 497, 501 (Minn, 1990)(citing Janklow v.

Newsweek, Inc., 788 F.2d 1300, 1306 (8' Cir. (en bane)),

cert. denied, 479 U.S. 883 (1986). Impugning judicial

qualifications and integrity is core political speech

protected by the First Amendment.

The worst

examples of unacceptable free speech involve efforts

government to insulate itself from criticism.

The

Sullivan and Garrison Courts relied upon Free speech

in holding that speech critical of our government

Cass R. Sunstein, Free Speech Now, 59 U. Chi. L. Rev. 255, 305

(1992)

officials could not be punished absent knowledge of or

reckless disregard as to a statements falsity. See

Garrison v. Louisiana, 379 U.S. 64, 74--75 (1964)

(explaining that “speech concerning public affairs is

more than self-expression; it is the essence of selfgovernment” (quoting N.Y. Times Co. v. Sullivan, 376

U.S. 254, 270 (1964)))

Speech regarding the qualifications and integrity

of judges, the third branch of our government, is

essential for democracy to function properly and cannot

be suppressed merely to protect judicial reputation.

The punishment of attorney speech impugning

judicial integrity falls squarely with the Sullivan and

Garrison rules. In Sullivan, the Court noted that the

judiciary cannot protect its reputation through

contempt citations even if the statements contained”

half truths” and “misinformation.” Sullivan, 376 US at

272 (quoting Pennekamp v. Florida, 328 US 331 (1946)

More importantly for the purpose of this

petition, however, the court below provided no basis

for refusing to apply the “actual malice” test of New

York Times Co. v. Sullivan ---a test it did not met in

this case. In fact, the very considerations that led this

Court to apply New York Times in the diverse contexts

of criminal libel, Garrison v. Louisiana, 379 U.S. 64

(1964), and the discipline of public employees, Pickering

v. Board of Education, 391 U.S. 563 (1968), compel its

application here as well. Garrison involved an elected

district attorney who had made an accusation of

misconduct against a judge (eight judges, in fact, about

whom Mr. Garrison raised, at a press conference,

“questions” of “racketeer influences,” 379 U.S. at 6566). There, as here, the matter was publicly prosecuted

by a state official (in Garrison, through a criminal libel

action brought by a state attorney general, State v.

Garrison, 244 La. 787, 794, 154 So. 2d 400, 402 (1963),

rev'd, 379 U.S. 64 (1964)). There the interest sought to

be vindicated was a public one (according to the Bill of

Information in Garrison, to enforce a “statute of the

State of Louisiana” and thus to vindicate “the peace and

dignity of the same,” 244 La. at 804, 154 So. 2d at 406).

Yet this Court found “no difficulty in bringing the

appellant's statement within the purview of criticism of

the official conduct of public officials, entitled to the

benefit of the New York Times rule,” for “[t]he

accusation concerned the judges' conduct of the

business of the Criminal District Court.” 379 U.S. at 76.

The court acknowledge the “constitutional

malice” standard of New York Times v. Sullivan, but

applied the “modified actual malice test” from its

decision in Graham, and found that Ms. MacDonald is

not entitled to First Amendment protection for her

statements because “no reasonable attorney in

MacDonald’s shoes would have made such serious

allegations about a judge’s integrity and impartiality

without substantiating evidence “ (15a) . The Court

wrongly used an objective standard, of what a

reasonable attorney would do in similar circumstances.

The Court concluded Ms. MacDonald was guilty

of making statements against a judge without first

determining the certainty of the merits of the

statements in her letters or the civil rights complaint.

The rule provides that that “[a] lawyer shall not make a

statement that the lawyer knows to be false or with

reckless disregard as to its truth or falsity concerning

the qualifications or integrity of a judge…” Minn. R,

Prof. Conduct 8.2 (a). The Orders, however, do not

state how Ms. MacDonald’s statements were false. The

Minnesota Supreme Court concluded that Ms.

MacDonald violated Minn. R. Prof. Conduct 8.2 (a) by

making “recklessly false allegations against a judge

that no reasonable attorney would have made based on

the evidence available. (7a). The findings by the

Supreme Court gave no indication of how Ms.

MacDonald’s statements were false or with reckless

disregard as to their truth or falsity, other than

repeating the statements. Thus, no one reading the

Referee’s findings and Minnesota Supreme Court

decision, could have any inkling of the manner in which

Ms. MacDonald's statements were untrue.

Court Trial in presided over by Judge with

Attorney in Handcuffs

The most significant claims — Ms. MacDonald's

lawsuit for Sandra Grazzini-Rucki and complaints against

Judge Knutson — are protected conduct. Ms. MacDonald

appealed the United States District Court Order dismissing

lawsuit against Judge Knutson. The Eighth Circuit

made no finding of frivolousness. 597 Fed. Appx, 902 (8th

Cir. 2015). Ergo, we take issue with the Referee's

Conclusion that the lawsuit and her comments to the

Board were "in reckless disregard for the truth." (82a)

Conclusion at para. 6.

Ms. MacDonald also asserted Judge Knutson

prevented her from zealously representing her client,

by permitting her arrest, and having her handle a court

trial for a client while handcuffed. See In the matter of

Conrad Hafer, No. 72453 (Nev. Supreme Court 2017);

Findings at paras. 65-82 (A16-20).

In Hafen, a similar case, Public Defender [Zohral

Bakhtary] appeared before Judge Hafen on behalf of a

client. Ms. Bakhtary repeatedly interrupted the Judge.

The Judge told her to be "be quiet" and after she

continued to argue for lenience for her client, he ordered

his bailiff to handcuff Ms. Bakhtary and seat her in a

chair located next to the jury box. The Judge then

proceeded with his ruling to , sentence the [Ms.

Bakhtary’s client] . At the conclusion of this hearing, he

told his bailiff to "un-cuff Zohra", stating, "I think she's

learned a lesson." Order at p. 3, para. D. See Matter of

Hafen, 393 P3d 685 Nevada Supreme Court 2017.

For allowing a lawyer to be cuffed in court, and

other conduct, Judge Hafen agreed that he had violated

the Nevada judicial canon, requiring him to "act at all

times in a manner that promotes public confident in the

independence," with "integrity and impartiality of the

judiciary," by "avoiding impropriety and the appearance

of impropriety," to perform his duties "fairly and

impartially." By "failing to allow every person who has a

legal interest in a proceeding, or that person's lawyer,

the right to be heard according to law," and failing to

be "dignified and courteous to litigants ... and lawyers . .

." Judge Hafer did not dispute the Public Defender's

claim that her cuffing "precluded her from advocating"

at that hearing. Order, at p. 3. Judge Hafer stipulated to

an order to never to be a judge again.

Minnesota's Rules of judicial decorum are similar

to Nevada's. See e.g., Canons 1, Rules 1.1 and 1.2,

Minnesota Code of Judicial Conduct (the avoidance of

impartiality and the appearance of impropriety and the

promotion of public confidence); Rule 2.3(B)(the

prohibition against harassment); Rule 2.6 (assuring the

lawyer's right to be heard); Rule 2.8 (maintaining

decorum); and Rule 2.12 (the requirement that the Judge

supervise "court staff, court officials and others subject to

the judge's direction and control to act in a manner

consistent with the judge's obligations under this Code").

Ms. MacDonald's complaints regarding the behavior

of Judge Knutson features facts far more severe than what

happened to lawyer Bakhtary in Nevada. Cuffing for

almost an entire day of trial, as opposed to a short

sentencing hearing; a thirty-hour incarceration, as

opposed to an Order to "un-cuff Zohra" after the

imposition of a criminal sentence.

The Referee's findings that Ms. MacDonald could

have cured her status, e.g., is a form of protective

masking of the judiciary. (5a) (Paras. 65, 66 67, 68, 69, 70).

No lawyer should ever be cuffed during a trial. Not the

public defender who "repeatedly interrupted" the

tribunal in Nevada. And surely not Ms. MacDonald for

taking a photograph.

Judge Knutson did what Judge Hafen did, And he

likewise should have been sanctioned. Judge Knutson

should have refrained, directly or passively, from

demeaning an advocate, however imperfect her advocacy

was, and whether or not, as in Nevada, Ms. MacDonald

"repeatedly interrupted" the Court. The decision to

shackle Ms. MacDonald, with which the Court knew of and

chose not to interfere, "offends not only judicial dignity

and decorum, but as to that respect for the individual

which is the lifeblood of the law." Illinois v. Allen, 397

U.S. 337, 350 (1970)(J. Brennan, concurring).

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Michelle Lowney MacDonald Shimota

1069 South Robert Street

West St. Paul, MN 55118

Telephone: (651) 222-4400

Michelle@MacDonaldLawFirm.com

Cases

1233-36 (Kan. 2007) (per curiam) ....................................... 16

129 (Mich. 2006) (making crude remarks on radio show

about judges after verdict for client was reversed on

appeal), cert. denied, 549 U.S. 1205 (2007)..................... 14

1a) The Court also held that: A 60 ..................................... 10

2014 WL 6967828................................................................ 17

284 (W. Va. 1991 ................................................................. 14

483 (Del. 2007) (per curiam)................................................ 14

597 Fed. Appx, 902 .............................................................. 27

597 Fed. Appx. 202 (8`1' Cir. 2015) .................................... 19

674-75 (Iowa 1964 ............................................................... 16

7 (Colo. 2000) (per curiam).................................................. 22

84 S.Ct. 710 .......................................................................... 23

Bates v. State Bar of Arizona, 433 U.S. 350, 355, 365, 384

(1977) ............................................................................... 22

Committee on Legal Ethics of the West Virginia State Bar v.

Farber, 408 S.E.2d 274..................................................... 14

Court File 15-220, 136 S.Ct. 361 (2015).............................. 19

Fla. Bar v. Ray, 797 So. 2d 556, 557 (Fla. 2001) (per curiam)

.......................................................................................... 15

Foley v. WCCO Television, Inc., 449 N.W.2d 497, 501

(Minn, 1990)..................................................................... 24

Garrison v. Louisiana 379 US 64 (1964) ........... 12, 24, 25, 26

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1054 (1991)

.......................................................................................... 22

Green, 11 P.3d 1078, 1083 (Colo. 2000) (per curiam)... 22, 23

Harte-Hanks Communications, Inc. v. Connaughton, 491

U.S. 657, 667 (1989) .................................................. 23, 24

Idaho State Bar v. Topp, 925 P2d 1113, 1115 (Idaho 1996)

.............................................................................. 13, 14, 17

Illinois v. Allen, 397 U.S. 337, 350 (1970) .......................... 29

In re Arnold, 56 P.3d 259, 263 (Kan. 2002) (per curiam).... 15

In re Atanga, 636 N.E.2d 1253. 1256 (Ind. 1994) (per

curiam).............................................................................. 14

In re Charges of Unprofessional Conduct Involving File No.

17139, 720 N.W.2d 807, 810 (Minn. 2006) ..................... 16

In re Cobb, 838 N.E.2d 1197, 1210 (Mass. 2005)................16

In re Disciplinary Action Against Graham, 453 N.W.2d 313,

315, n.3 (Minn. 1990) (per curiam) ..................................15

In re Evans, 801 F.2d 703...............................................15, 16

In re Glenn, 130 N.W.2d 672 ...............................................16

In re Guy, 756 A.2d 875, 877-78 (Del. 2000) ......................15

In re Holtzman, 577 N.E.2d 30, 40-41 (N.Y. 1991) (per

curiam)..............................................................................15

In re Lacey, 283 N.W.2d 250, 251 (S.D. 1979)..............15, 16

In re Primus, 436 U.S. 412, 432-433 (1978) ........................22

In re Raggio, 487 P.2d 499, 500 (Nev. 1971) (per curiam).14,

15, 16

In re Ruffalo, 390 U.S. 544, 551(1968)................................24

In re Shay, 117 P. 442, 443-44 (Cal. 1911) ..........................16

In re Westfall, 808 S.W.2d 829, 831 (Mo. 1991) .....14, 15, 16

In re Wilkins, 777 N.E.2d 714, 715-16 (Ind. 2002) (per

curiam), modified, 782 N.E.2d 985, 987 (Ind. 2003) .......14

Janklow v. Newsweek, Inc., 788 F.2d 1300, 1306 (8' Cir. (en

bane)), cert. denied, 479 U.S. 883 (1986).........................24

Ky. Bar Ass'n v. Heleringer, 602 S.W.2d 165, 166 (Ky. 1980)

(per curiam) ................................................................15, 17

Ky. Bar Ass'n v. Nall, 599 S.W.2d 899, 899 (Ky. 1980) (per

curiam)..............................................................................15

Landmark Communications, Inc. v. Virginia, 435 U.S. 829,

839 (1978).........................................................................22

New York Times v. Sullivan , 376 US 254 (1964) .......passim

Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425,

427 (Ohio 2003) (per curiam)...........................................14

Pennekamp v. Florida, 328 US 331 (1946) ..........................25

Peters v. Pine Meadow Ranch Home Ass'n, 151 P.3d 962,

967-68 (Utah 2007) ..........................................................14

Pickering v. Board of Education, 391 U.S. 563 (1968)........25

Ramirez v. State Bar of Cal., 619 P.2d 399, 406, 414 (Cal.

1980) (per curiam) ......................................................14, 16

Ramsey v. Bd. of Prof'l Responsibility of the Supreme Court

of Tenn., 771 S.W.2d 116, 120-21 (Tenn. 1989) .............15

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575

(1980) ............................................................................... 24

St. Amant v. Thompson 390 U.S. 727, 731 (1968).............. 21

Standing Comm. on Discipline for the U.S. Dist. Court for

the Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430 ............. 17

State of Oklahoma v. Porter, 766 P.2d 958, 966-970

(Okla.1988)....................................................................... 22

State v. Garrison, 244 La. 787, 794, 154 So. 2d 400, 402

(1963), rev'd, 379 U.S. 64 (1964)..................................... 26

Tresa Baldas, Lawyers Critical of Judges Fight for Rights,

Nat'l L.J., Feb. 9, 2009, available at

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=120242

8070373 ............................................................................ 14

U.S. Dist. Court for the E. Dist. of Wash. v. Sandlin, 12 F.3d

861 .................................................................................... 15

United States v. Brown, 72 F.3d 25, 29 (5th Cir.1995)........ 24

Statutes

28 U.S.C. § 1254(1)................................................................ 1

28 U.S.C. Section 1257(a)...................................................... 1

Cooperative Private Divorce Bill HF 1348 .......................... 11

Minn. Stat. 484.69 .................................................................. 4

Rules

4th Cir. 1986......................................................................... 15

9th Cir. 1993......................................................................... 15

9th Cir. 1995......................................................................... 17

Minn. R. Prof. Conduct 3.1 .................................................... 9

Minn. R. Prof. Conduct 8.2 .................................................. 26

Minn. R. Prof. Conduct 8.2(a).......................................... 9, 10

No. 72453 (Nev. Supreme Court 2017........................... 27, 28

U.S. Supreme Court No. 14-689 .......................................... 17

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.