Appendix — Musslewhite v. State Bar of Texas
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Supreme Court, U.S,
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ObiuGE Ai Lip CLERK
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1994
BENTON MUSSLEWHITE,
Petitioner,
V.
THE STATE BAR OF TEXAS,
Respondent.
Appendices To Petition For
Writ of Certiorari
Benton Musslewhite
1520 Lyric Office Centre
440 Louisiana
Houston, Texas 77002
Telephone (713) 222-2288
Facsimile (713) 222-0319
Pro Se/Lead Counsel for
Petitioners
l(¢
TABLE OF CONTENTS
APPENDIX
Appendix A - Opinion of
Court of Appeals
Dated Sept. 23, 1994
Appendix B - Opinion of
Court of Appeals
Dated July 19, 1994
Appendix C - Final Judgment
of Federal District Court
Signed June 25, 1992
Appendix D - Court of Appeals
Order Denying the Petition
for Rehearing and Rehearing
En Banc
Dated December 5, 1994
Appendix E - Plaintiff's
Original Petition filed in
Federal District Court
Appendix F - Articles in
Addition to, And In Amendment
of, The Constitution of the
United States, Amendment 1
Appendix G - Articles in
Addition To, And In Amendment
Of, The Constitution of the
United States, Amendment 14
Appendix H - Rules of
Appellate Procedure
Rule 41
PAGE
Al
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A59
A6l1
A99
A103
Ali3
APPENDIX A
Benton MUSSLEWHITE, and all
others similarly situated,
Plaintiff-Appellant,
Vv.
The STATE BAR OF TEXAS, et
al, Defendants-Appellees.
No. 92-2762
United States Court of Appeals
Fifth Circuit
Sept. 23, 1994
Attorney brought civil rights action
against Texas State Bar and _ its
officials, challenging constitutionality
of procedures used in disciplinary
proceeding. The United States District
court for the Southern District of Texas,
David Hittner, J., dismissed action for
lack of subject matter jurisdiction, and
attorney appealed. The Court of Appeals,
Wisdom, Circuit Judge, held that: (1)
district court lacked subject matter
jurisdiction over attorney’s claim
against state bar attacking some aspects
of disciplinary proceedings against him;
(2) attorney’s claim that state bar
violated constitutional guarantee of
equal protection by selectively
investigating attorney and others
Similarly situated was attack on state
bar’‘s procedures as applied to attorney
and was outside of district court’s
jurisdiction; and (3) Younger doctrine
did not permit district court to exercise
jurisdiction over attorney’s claim that
state bar’s prosecution of him was taken
in bad faith for purpose of harassing
him.
Affirmed.
Benton Musslewhite, pro se
Linda A. Acevedo, D. Craig Landin,
Austin, TX, for appellee.
A2
Appeal from the United States
District Court for the Southern District
of Texas.
Before WISDOM, BARKSDALE and EMILIO
M. GARZA, Circuit Judges.
WISDOM, Circuit Judge.
The Court withdraws the opinion
issued in this case dated July 19, 1994,
and appearing at 25 F.3d 1300, and
substitutes the following.
This case presents a question of
subject matter jurisdiction. The
district court held that it was without
jurisdiction to proceed on the appellants
claims. We uphold that determination
and, accordingly, we affirm.
I.
We limit our discussion of the facts
to those bearing on the issue of
jurisdiction. The plaintiff/appellant,
Benton Musslewhite, is a Houston attorney
who made a name for himself representing
plaintiffs in complex personal injury
A3
cases, usually involving mass disasters.
In 1987, he attracted the attention of
the State Bar of Texas ("State Bar") as
the result of his public statements
soliciting clients. Typically, it seems,
Musslewhite held “press conferences"
during which he would announce his plan
of action in response to a particular
tort and detail his qualifications. Not
incidentally, he rarely failed to include
information on how potential clients
could reach him if interested in his
services.
The State Bar expressed concern-
Musslewhite charges that this concern was
feigned-that these press conferences
constituted the improper solicitation of
clients. The State Bar launched an
investigation that focused in large part
on whether Musslewhite was violating the
A4
mandates of professional responsibility.'
Musslewhite perceived the investigation
as a direct assault on his First
Amendment right to free speech.
Eventually, the State Bar filed
formal charges against Musslewhite. The
two parties reached a settlement,
however, and a trial was unnecessary.
Under the terms of the settlement,
Musslewhite was suspended from the
practice of law for ninety days beginning
November 1, 1988, and placed on probation
for three years after that. Moreover, he
was barred from accepting new employment
until November 1, 1988 (the date his
Suspension was to begin). As to this
final limitation, however, Musslewhite
still was entitled to refer potential
’ Musslewhite charges that the
investigation was designed only to harass
plaintiff’s attorneys and sole
practitioners.
clients to other attorneys. The penalty
for violation of any of these terms is an
automatic three year suspension.
The issue presented in this case
stems from an alleged breach of these
settlement provisions. On the heels of
an oil platform explosion in Scotland,
Musslewhite went to work, plotting his
strategy for cashing in on the disaster.*
He held his typical press conferences
and issued his’ self-laudatory press
releases.
The State Bar concluded that his
tactics violated the terms of the
settlement agreement and sued to revoke
@ On July 6, 1988, the Piper Alpha
oil platform in the North Sea exploded.
Musslewhite flew to Scotland shortly
thereafter to discuss a possible lawsuit
over the incident in the state courts of
Texas. He was in touch with John
O’Quinn, another attorney whom the State
Bar had investigated about referring any
case he obtained in Scotland to O’Quinn.
A6
a
his probation.? Pursuant to the
settlement terms, Musslewhite was |
suspended from the practice of law for
three years beginning January 31, 1989.
That judgment was affirmed on appeal.‘
Neither the Texas Supreme Court nor the
U.S. Supreme Court found persuasive
reasons to reexamine the matter.
’ The State Bar considered
Musslewhite’s press release misleading.
For one, the press release failed to
disclose Musslewhite’s legal handicap
which prohibited him from accepting new
clients. The State Bar also objected to
a letter written by Musslewhite associate
Kelly Newman addressed to “all victims or
families of victims". This letter
extolled the virtues of Musslewhite’s
group which boasted “internationally
renowned trial lawyers in the United
States". We underscore that, in this
case, we are not testing the validity of
these justifications for the State Bar’s '
actions.
. Musslewhite v. State Bar of
Texas, 786 S.W.2d 437 (Tex.App.-—Houston
[14th Dist.] 1990, writ denied), cert.
denied, 501 U.S. 1251, 11 §.Ct. 2891, 115
L.Ed.2d 1056 (1991).
A7
en a a —————ooeeee eee een ss sa ee ee eee ee eee ee a ee eee cee
Having reached a dead end,
Musslewhite filed the present suit-an
action under 42 U.S.C. Sec. 1983-in
federal court against the State Bar, its
Executive Director, its General Counsel,
its former General Counsel, an attorney
employed by the State Bar, and the
members of the State Bar’s Board of
5
Directors.’ In his complaint, he alleged
. In his original complaint,
Musslewhite named Karen R. Johnson,
Executive Director of the state Bar (sued
in her official capacity); James M.
McCormack, general Counsel for the State
Bar (official capacity); Steven Peterson,
then general counsel to the State Bar
(individual and official capacities);
Steven Smoot, then an attorney employed
by the State Bar (individual and officiai
capacities) and the Board of Directors
(all sued in their official capacities);
Charles R. Dunn, Harriet Miers, James N.
parsons, Tom Cunningham, Richard C. Hile,
Antonio Alvarado, Charles A. Beckham,
Marsha S. Dickie, M. Colleen McHugh,
Steven L. Martin, Charles O’Reilly,
Spender C. Relyea, Jerry Secrest, and
Kirk Watson.
we refer to the defendants
collectively as the “State Bar". We
note, however, that the State Bar of
A8
first, that several of the procedures
used in his disciplinary proceeding were
unconstitutional and, second, that some
of the State Bar’s rules themselves are
unconstitutional. He sought declaratory
and injunctive relief, and compensatory
and punitive damages. He feels strongly
that he is a victim of the State Bar’s
desire to persecute him, allegedly in
retaliation for his willingness to use
the right of free speech to enhance his
professional stature.
Bie
The district court dismissed
Musslewhite’s suit for lack of subject
matter jurisdiction under Rule 12(b)(1)
of the Federal Rules of Civil Procedure.
We address whether the district court
Texas is a distinct entity that
Musslewhite named as a defendnat in his
prayer for a declaratory judgment.
AY
erred in so doing. After a de novo
review,®° we uphold the district court’s
dismissal of the appellant’s challenges
to a series of Texas State Bar practices
as applied to him as well as his
challenges to the constitutionality of
the proceedings.
Iil.
We start with two decisions that
inform our analysis: the U.S. Supreme
Court’s decision in District of Columbia
Court of Appeals v. Feldman’ and this
Court’s decision in Howell v. State Bar
of Texas®. Because they control most of
6 In re Bradley, 989 F.2d 802, 804
(Sth Cir. 1993).
7 460 U.S. 462, 103 S.Ct. 1303, 75
L.Ed.2d 206 (1983).
8 710 F.2d 1075 (5th Cir. 1983)
cert. denied 466 U.S. 950, 104 S.Ct.
2152, 80 L.Ed.2d 538 (1984) (“Howell
Il").
A10
the issues, we discuss them in some
detail.
The Feldman case involved an
apparently qualified applicant to the
District of Columbia bar who, in spite of
his qualifications, had not graduated
from an accredited law school. The bar
refused him admission, citing the rule
requiring a completed legal education
from an accredited law school. Feldman
responded with a petition to the D.C.
Court of Appeals for a waiver of the
graduation requirement. That petition
was denied.
Feldman sought relief in federal
district court. The court never reached
the merits of Feldman’s contentions,
however, because it held that the federal
courts were without the predicate
subject matter jurisdiction. The court
reasoned that the D.C. Court of Appeals’s
All
refusal to grant Feldman a waiver was a
decision by a body tantamount to a
state’s highest tribunal. The federal
courts may not properly sit in review of
such decisions.
Feldman appealed. The Court of
Appeals for the D.C. Circuit disagreed
with the district court and, instead,
concluded that the bar criteria
proceedings in the D.C. Court of Appeals
were administrative and not judicial.
This distinction, as we explain below,
allowed the federal district court to
proceed. Accordingly, the court reversed
and remanded the case. Before it went
back to the district court, the U.S.
Supreme Court granted certiorari.
The Supreme Court held that the
district court had it right the first
time. First, the Court settled the
nature of the bar disciplinary
Al2
proceedings as judicial, — merely
administrative. The court reasoned that
the purpose of the proceedings was to
“investigate, declare, and enforce
liabilities as they [stood] on present or
past facts and under laws’ supposed
already to exist").? That, the Court
concluded, is a judicial charge.
The Court then turned its attention
to the question of the district court’s
jurisdiction to entertain Feldman’s
challenges. The Court drew a significant
distinction between Feldman’s broad-based
challenges to the constitutionality of
the bar’s rules and his challenges to the
constitutionality of his individual
disciplinary proceedings. This
distinction reflects the rule embodied in
9 Feldman, 460 U.S. at 479, 103
S.Ct. at 1313 (internal quotations
omitted).
Al3
28 U.S.C. Sec. 1257: Only the Supreme
Court of the United States may review
final judgments or decrees rendered by
the highest court in a state.
[1,2] The Feldman rule, then, is as
follows. The federal courts do have
subject matter jurisdiction over
general challenges to state bar
rules, promulgated by state courts
in non-judicial proceedings, which
do not require review of a final
state-court judgment in a particular
case.
These we refer to as “general
constitutional attached." The federal
courts do not have subject matter
jurisdiction over
challenges to state-court decisions
in particular cases arising out of
judicial proceedings even if those
challenges allege that the state
10 td at 486, 103 S.Ct. at 1317
(emphasis added).
Al4
goeo-ure'* @ action was
unconstitutional.”
We applied the Feldman rule in the
Fifth Circuit for the first time in
Howell v. State Bar of Texas. In that
case, Howell, a Texas attorney, had filed
suit in federal district court to enjoin
his disbarment.’ The district court had
1 Id. Feldman was based upon Rooker
v. Fidelity Trust Co., 263 U.S. 413, 44
S.Ct. 149, 68 L.Ed. 362 (1923), in which
the Supreme Court held that federal
district courts lack jurisdiction to
entertain collateral attacks on state
court judgments. Although the doctrine
that embodies that principle, is commonly
called the "“Rooker-Feldman doctrine", we
cite to Feldman alone because the instant
case is directly within Feldman’s factual
and legal embed.
1@ In a factual distinction to the
case we decide today. Howell sought the
injunction first while the State
proceedings were pending and again before
his state court appeal had been heard.
Eventually, the Texas courts finalized
their judgment against Howell. At that
point, he sought to enjoin the
enforcement of his disbarment. Howell v.
State Bar of Texas, 674 F.2d 1027 (5th
Cir. 1982) (before remand) (“Howell I”).
Al15
TORRID A a EE pe ee Te
held that it lacked jurisdiction. We
reversed in Howell I on grounds
irrelevant to this matter and remanded.
In the interim, the Supreme Court decided
Feldman and, subsequently, vacated our
decision in Howell I and remanded the
case back to us. We then applied the
Feldman rule for the first time.
Although we held that dismissal was
proper as to the bulk of Howell's claims,
we reversed as to Howell’s due process,
equal protection, and privileges and
immunities claims.”
We also fleshed out some of the
rules announced in Feldman. For one, the
Feldman distinction meant that a general
constitutional attack that is nonetheless
“inextricably intertwined" with a state
court judgment of reprimand cannot be
13 Howell II, 710 F.2d at 1076.
properly heard in federal court.”
Second, we noted that federal
jurisdiction does not lie for claims that
were not presented first to the state
court in the disciplinary proceeding.”
Our task, then, is focused: Are any
of Musslewhite’s claims properly
construed as general constitutional
attacks on the Texas State Sar
disciplinary scheme. The district court
concluded that all of Musslewhite’s
claims were challenges to the
constitutionality of the State Bar’s
4% Id. at 1077.
15 Id. at 1076; Thomas v. Kadish,
7148 F.2d 276, 277-78 (Sth Cir. 1964),
cert. denied, 473 U.S. 9307, 105 $.Ct.
3531, 87 L.Ed.2d 655 (1985). Feldman
overruled the “Dasher exception"
previously embodied in Dasher v. Supreme
Court of Texas, 658 F.2d 1045 (5th Cir.
1981). After Feldman, the federal courts
are without jurisdiction over a
plaintiff’s claims that could have been
raised, but were not.
Al7
practices as applied to him in his
disciplinary proceedings. We agreed with
the sound reasoning of the district court
and its classification of all _ of
Musslewhite’s claims.
IV.
[3] We turn to the specific claims
that Musslewhite raises. He complains
that:
(1) The state judge erred in
denying Musslewhite’s motion
for a change of venue;
(2) The state trial denied
Musslewhite’s right to trial by
jury;
(3) The Texas Court of Appeals,
Texas Supreme Court, and U.S.
Supreme Court all erred in
refusing to expedite
Musslewhite’s appeal of the
disciplinary proceeding;
Al18
(4)
(5)
(6)
(7)
(8)
(9)
(10)
The State Bar’s rule governing
the making of false and
misleading statements is
unconstitutional as applied in
Musslewhite’s case;
"[Sjeveral constitutional
travesties ... occurred in the
state court action";
The suspension imposed in the
state trial constituted a
violation of Musslewhite’s
First Amendment rights;
The punishment imposed in the
state trial was excessive;
Musslewhite’s state trial was
tainted by prejudicial
publicity;
Musslewhite received inadequate
notice of the state trial;
The court refused to suspend
Musslewhite’s judgment upon his
Al19
filing a supersedeas bond while
appealing.
We will not belabor our conclusions
with a claim-by-claim analysis. All of
these contentions have in common their
grounding in some aspect of the
disciplinary proceedings against
Musslewhite. It is plain by the way they
are stated that they attack aspects of
his particular trial. We have stated
that “the Texas scheme for disciplining
attorneys is fully capable of considering
the constitutional arguments of attorney-
defendants relating to specific
procedures followed in their cases."
To evaluate them would require a review
of the state court judgment. That, as
Feldman instructed, we are without the
jurisdiction to do.
16 Bishop v. State Bar of Texas, 736
F.2d 292, 294 (5th Cir. 1984).
V.
Musslewhite couched some of his
averments in the language of a general
constitutional attack on the state Bar’s
scheme of disciplining attorneys. Merely
using catch phrases, however, will not
vest the federal district court with the
jurisdictional authority to entertain the
action. This is about substance, not
form. Instead, we must ascertain what
the court really is being asked to
review.
[4] First, Musslewhite complains
that the State Bar violated the
constitutional guarantee of equal
protection by selectively investigating
himself and others similarly situated.
We have no trouble classifying this
contention as but another attack on the
State Bar’s procedures as applied to
Musslewhite. All of the evidence to
A21
which Musslewhite alludes goes solely to
his disciplinary proceeding. That is,
the procedures, he charges, were used in
this case to deprive him of his equal
protection rights. This conclusion
applies as well to his charge that the
State Bar prosecutes sole practitioners
for conduct that it tolerates by large
firms. The state court was capable of
resolving that claim; it too is
inextricably intertwined with the state
case.
[5] Musslewhite also argues that
the State Bar rule governing the making
of false and misleading statements is, on
its face, unconstitutionally vague and
violates the First Amendment. The Texas
Court of Appeals flatly rejected this
contention that the rule was
unconstitutionally vague either on its
face or as applied in Musslewhite’s
A22
re a ee a rere ee err Wa: gow Se
case.'" The district court’s judgment
that it was incapable of revisiting that
sound judicial decision was correct.
[6] Last, Musslewhite contends that
the State Bar’s entire prosecution was
taken in bad faith and for the purpose of
harassing him. Although he makes strong
and serious allegations, our
consideration of these contentions would
require a collateral examination of the
state court judgment. That we cannot do.
Musslewhite urges that we recognize
n exception to the Feldman doctrine for
an allegation that the prosecution was
taken in bad faith. In Younger v.
Harris'®, the Supreme Court established
a policy whereby federal intervention in
17 Musslewhite, 786 S.W.2d at 441-
42.
7" @24 €.2. 33, . 81 6.001 Fe. 2
L.Ed.2d 669 (1971).
A23
Naa ly Sins OA Ae
ongoing state criminal proceedings is
barred absent extraordinary
circumstances. Subsequent decisions
teach us that a state prosecution taken
in bad faith or for the purposes of
harassment constitutes such extraordinary
circumstances and federal intervention is
justified."? This bad faith exception to
the Younger doctrine has two recognized
applications in our Circuit; First, where
the state prosecution is taken for the
purpose of deterring constitutionally
protected conduct” and, second, where
the prosecution is motivated by a design
to harass the defendant.®'
19 See Trainor v. Hernandez, 431
U.S. 434, 446, 37 #.Ct. 1911, 1919, 52
L.Ed.2d 486 (1977); Huffman v. Pursue,
ite, €260 0.8. S362; Gii-id,; Fa B.C.
1200, 1211-12, 43 L.Ed.2d 482 (1975).
20
21
A24
The Younger doctrine, however, does
not apply to the present matter. The
state proceeding here in question is not
ongoing and, thus, no question of
intervention is presented. The Younger
doctrine is rooted in different policy
considerations than the Feldman doctrine,
and we do not recognize an exception for
allegations of bad faith to the latter.
Instead, as we recently stated, when
facts with similar circumstances, “We do
n22
as we must. We dismiss.
AFFIRMED.
22
A25
APPENDIX B
Benton MUSSLEWHITE, and all
others similarly situated,
Plaintiff-Appellant,
Vv.
The STATE BAR OF TEXAS, et
al, Defendants-Appellees.
No. 92-2762
United States Court of Appeals,
Fifth Circuit.
July 19, 1994
Attorney brought civil rights action
against State Bar of Texas, its
officials, its employee, and its board of
directors, challenging constitutionality
of procedures used in attorney’s state
disciplinary proceeding and of state
bar’s rules, and alleging bad faith and
harassment. The United States District
Court for the Southern District of Texas,
David Hittner, J., dismissed action for
lack of subject matter jurisdiction. On
review, the Court of Appeals, Wisdom,
A26
Circuit Judge, held that (1) district
court lacked subject matter jurisdiction
over attorney’s claims which’ were
grounded in or inextricably intertwined
with attorney disciplinary proceedings;
(2) district court lacked jurisdiction
over attorney’s claims that state bar
rule governing making of false and
misleading statements was
unconstitutionally vague on its face and
violated First Amendment; and (3) bad
faith exception to general rule, barring
federal intervention in ongoing state
proceedings absent extraordinary
circumstances, applied respecting bad
faith and harassment claim.
Affirmed in part, reversed and
remanded in part.
Benton Musslewhite, pro-se
Linda A. Acevedo, D. Craig Landin,
Austin, TX, for appellees.
A27
Appeal from the United States
District court for the Southern District
of Texas.
Before WISDOM, BARKSDALE, and EMILIO
M. GARZA, Circuit Judges.
WISDOM, Circuit Judge:
This case presents a question of
subject matter jurisdiction. The
district court held that it was without
jurisdiction to proceed on the
appellant’s claims. We uphold that
determination with one exception.
Accordingly, we affirm in part and
reverse and remand in part.
I.
We limit our discussion of the facts
to those bearing on the issue of
jurisdiction. The plaintiff/appellant,
Benton Musslewhite, is a Houston attorney
who made a name for himself representing
plaintiffs in complex personal injury
cases, usually involving mass disasters.
In 1987, he attracted the attention of
the State Bar of Texas ("State Bar") as
the result of his public statements
soliciting clients. Typically, it seems,
Musslewhite held “press conferences"
during which he would announce his plan
of action in response to a particular
tort and detail his qualifications. Not
incidentally, he rarely failed to include
information on how potential clients
could reach him if interested in his
services.
The State Bar expressed concern-
Musslewhite charges that this concern was
feigned-that these press conferences
constituted the improper solicitation of
clients. The State Bar launched an
investigation that focused in large part
on whether Musslewhite was violating the
mandates of professional responsibility.'
, Musslewhite charges that the
investigation was designed only to harass
plaintiffs’ attorneys and solo
A29
Musslewhite perceived the investigation
ad a direct assault on his First
Amendment right to free speech.
Eventually, the State Bar filed
formal charges against Musslewhite. The
two parties reached a_ settlement,
however, and a trial was unnecessary.
Under the terms of the settlement,
Musslewhite was suspended from the
practice of law for ninety days beginning
November 1, 1988, and placed on probation
for three years after that. Moreover, he
was barred from accepting new employment
until November 1, 1988 (the date his
suspension was to begin). As to this
final limitation, however, Musslewhite
still was entitled to refer potential
clients to other attorneys. The penalty
for violation of any of these terms was
practitioners.
A30
an automatic three year suspension.
The issue presented in this case
stems from an alleged breach of these
settlement provisions. On the heels of
an oil platform explosion in Scotland,
Musslewhite went to work, plotting his
strategy for cashing in on the disaster.?
He held his typical press conferences and
issued his self-laudatory press releases.
The State Bar concluded that his
tactics violated the terms of the
settlement agreement, and sued to revoke
3
his probation. Pursuant to the
2 On July 6, 1988, the Piper Alpha
oil platform in the North Sea exploded.
Musslewhite flew to Scotland shortly
thereafter to discuss a possible lawsuit
over the incident in the state courts of
Texas. He was in touch with John
O’Quinn, another attorney whom the State
Bar had investigated, about referring any
cases he obtained in Scotland to O’Quinn.
° The State Bar considered
Musslewhite’s press release misleading.
For one, the press release failed to
disclose Musslewhite’s legal handicap
A31
settlement terms, Musslewhite was
suspended from the practice of law for
three years beginning January 31, 1989.
That judgment was affirmed on appeal .*
Neither the Texas Supreme Court nor the
U.S. Supreme Court found persuasive
reasons to reexamine the matter.
Having reached a dead end,
Musslewhite filed the present suit-an
action under 42 U.S.C. Sec. 1983-in
which prohibited him from accepting new
clients. The State Bar also objected to
a letter written by Musslewhite associate
Kelly Newman addressed to "all victims or
families of victims". The letter
extolled the virtues of Musslewhite’s
group which boasted “internationally
renowned trial lawyers in the United
States". We underscore that, in this
case, we are not testing the validity of
these justifications for the State Bar’s
actions.
4 Musslewhite v. State Bar of Tex.,
758 S.W.2d 437 (Tex.App.-Houston [14th
Dist.] 1990, writ denied), cert. denied,
S501 U.S. ~ 232 8.68. 20013, 235
L.Ed.2d 1056 (1991).
A32
federal court against the State Bar, its
Executive Director, its General Counsel,
its former General Counsel, an attorney
employed by the State Bar, and the
members of the State Bar’s Board of
5
Directors. In his complaint, he alleged
first, that several of the procedures
’ In his original complaint,
Musslewhite named Karen R, £=Johnson,
Executive Director of the State Bar (sued
in her official capacity); James M.
McCormack, general Counsel for the state
Bar (official capacity); Steven Peterson,
then general counsel to the State Bar
(individual and official capacities);
Steven Smoot, then an attorney employed
by the State Bar (individual and official
capacities); and the Board of Directors
(all sued in their official capacities);
Charles R. Dunn, Harriet Miers, James N.
Parsons, Tom Cunningham, Richard C. Hile,
Antonio Alvarado, Charles A. Beckhan,
Martha S. Dickie, M. Colleen McHugh,
Steven L. Martin, Charles O’Reilly,
Spencer C. Reylea, Jerry Secrest, and
Kirk Watson.
We refer to the defendants
collectively as the “State Bar". We
note, however, that the State Bar of
Texas is a distinct entity that
Musslewhite named as a defendnat in his
prayer for a declaratory judgment.
A33
used in his disciplinary proceeding were
unconstitutional and, second, that some
of the State Bar’s rules themselves are
unconstitutional. He sought declaratory
and injunctive relief, and compensatory
and punitive damages. He ‘feels strongly
that he is a victim of the State Bar’s
desire to prosecute him, allegedly in
retaliation for his willingness to use
the right of free speech to enhance his
professional] stature.
It.
The district court dismissed
Musslewhite’s suit for lack of subject
matter jurisdiction under Rule 12(b)(1)
of the Federal Rules of Civil Procedure.
We address whether the district court
erred in so doing. After a de novo
review®, we uphold the district court’s
¢ In re Bradley, 989 F.2d 802, 804
(Sth Cir. 1993).
A34
dismissal of the appellant’s challenges
to a series of Texas State Bar practices
as applied to hin. We hold, however,
that Musslewhite has stated a claim upon
which relief could be granted as to his
allegations of bad faith and harassment.
The district court did have jurisdiction
over that claim and should have proceeded
on that basis.
An explication of the way in which
Rules 12(b)91) and 12(b)(6) intersect in
this case may be helpful. Rule 12(b)91)
requires a threshold determination of
whether subject matter jurisdiction
exists. Sometimes this depends on
whether the plaintiff has stated a
particular type of federal claim. To
make that determination, we look to Rule
12(b)96) which, as is widely understood,
deals with dismissal for failure to state
a claim upon which relief can be granted.
A35
With that exception this case turns
solely on Rule 12(b)(1).
III.
We start with two decisions that
inform our analysis: the U.S. Supreme
Court’s decision in District of columbia
Court of Appeals v. Feldman’ and this
Court’s decision in Howell v. State Bar
of Texas®. Because they control most
of the issues, we discuss them in some
detail.
The Feldman case involved= an
apparently qualified applicant of the
District of Columbia bar who, in spite of
his qualifications, had not graduated
from an accredited law school. The bar
’ 460 U.S. 462, 103 S.Ct. 1303, 75
L.Ed.2d 206 (1983).
8 710 F.2d 1075 (5th Cir. 1983),
cert. denied, 466 U.S. 950, 104 S.Ct.
2152, 80 L.Ed.2d 538 91984) (“Howell
il").
A36
refused him admission, citing the rule
requiring a completed legal education
from an accredited law school. Feldman
responded with a petition to the D.C.
Court of Appeals for a waiver of the
graduation requirement. That petition
was denied.
Feldman sought relief in federal
district court. The court never reached
the merits of Feldman’s contentions,
however, because it held that the federal
courts were without the predicate subject
matter jurisdiction. The court reasoned
that the D.C. Court of Appeals’ refusal
to grant Feldman a waiver was a decision
by a body tantamount to a state’s highest
tribunal. The federal courts may not
properly sit in review of such decisions.
Feldman appealed. The Court of
Appeals for the D.C. Circuit disagreed
with the district court and, instead,
concluded that the bar criteria
proceedings in the D.C. Court of Appeals
were administrative and not judicial.
This distinction, as we explain below,
allowed the tederal district court to
proceed. Accordingly, the court reversed
and remanded the case. Before it went
back to the district court, the U.S.
Supreme Court granted certiorari.
The Supreme Court held that the
district court had it right the first
time. First, the Court settled the
nature of the bar disciplinary
proceedings as judicial, not merely
administrative. The Court reasoned that
the purpose for the proceedings was to
“investigate, declare, and enforce
liabilities as they [stood] on present or
past facts and under laws’ supposed
A38
already to exist".’ That, the Court
concluded, is a judicial charge.
The Court then turned its attention
to the question of the district court’s
jurisdiction to entertain Feldman’s
challenges. The Court drew a significant
distinction between Feldman’s broad-based
challenges to the constitutionality of
the bar’s rules and his challenges to the
constitutionality of his individual
disciplinary proceedings. This
distinction reflects the rule embodied in
28 U.S.C. Sec. 1257: Only the Supreme
Court of the United States may review
final judgments or decrees rendered by
the highest court in a state.
[1,2] The Feldman rule, then, is as
follows. The federal courts do have
9 Feldman, 460 U.S. at 479, 103
S.Ct. at 1313 (internal quotations
omitted).
A39
subject matter jurisdiction over
to state bar
rules, promulgated by state courts
in non-judicial proceedings, which
do not require review of a final
state-court judgment in a particular
case.”
These we refer to as “general
constitutional attacks”. The federal
courts do not have subject matter
jurisdiction over
challenges to state-court decisions
in particular cases arising out of
judicial proceedings even if those
challenges allege that the state
eeurt*’ s action was
unconstitutional.”
We applied the Feldman rule in the
Fifth Circuit for the first time in
Howell v. State Bar of Texas. In that
case, Howell, a Texas attorney, had filed
suit in federal district court to enjoin
1 Id. at 486, 103 S.Ct. at 1317
(emphasis added).
" Id.
A40
his disbarment.’* The district court had
held that it lacked jurisdiction. We
reversed in Howell I on grounds
irrelevant to this matter and remanded.
In the interim, the Supreme Court decided
Feldman and, subsequently, vacated our
decision in Howell I and remanded the
case back to us. We then applied the
Feldman rule for the first time.
Although we held that dismissal was
proper as to the bulk of Howell’s claims,
we reversed as to Howell’s due process,
equal protection, and privileges and
12 In a factual distinction to the
case we decide today, Howell sought the
injunction first while the state
proceedings were pending and again before
his state court appeal had been heard.
Eventually, the Texas courts finalized
their judgment against Howell. At that
point, he sought to enjoin the
enforcement of his disbarment. Howell v.
State Bar of Texas, 674 F.2d 1027 (5th
Cir. 1982) (before remand) (“Howell I").
A41
immunities claims.”
We also fleshed out some of the
euies announced in Feldman. For one, the
Feldman distinction meant that a general
constitutional attack that is nonetheless
“inextricably intertwined” with a state
court judgment of reprimand cannot be
properly heard in federal court.”
Second, we noted that federal
jurisdiction does not lie for claims that
were not presented first to the state
court in the disciplinary proceeding.”
13 Howell II, 710 F.2d at 1076.
4 Id. at 1077.
5 Id. at 1076; Thomas v. Kadish,
748 F.2d 276, 277-78 (5th Cir. 1984),
cert. denied, 473 U.S. 907, 105 S.Ct.
3531, 87 L.Ed.2d 655 (1985). Feldman
overruled the "Dasher exception"
previously embodied in Dasher v. Supreme
Court of Texas, 658 F.2d 1045 (5th Cir.
1981). After Feldman, the federal courts
are without jurisdiction over a
plaintiff’s claims that could have been
raised, but were not.
A42
Our task, then, is focused: Are any
of Musslewhite’s claims properly
construed as general constitutional
attacks on the Texas State Bar’s
disciplinary scheme. The district court
concluded that all of Musslewhite’s
claims were challenges to the
constitutionality of the State Bar’s
practices as applied to him in his
disciplinary proceedings. Although the
court’s reasoning was sound, we disagree
as to the proper classification of one
claim in particular.
IV.
[3] We turn to the specific claims
that Musslewhite raises. He complains
that:
(1) The state judge erred in
denying Musslewhite’s motion
for a change of venue;
A43
(3)
(4)
(5)
(6)
The state trial denied
Musslewhite’s right to trial by
jury;
The Texas Court of Appeals,
Texas Supreme Court, and U.S.
Supreme Court all erred in
refusing to expedite
Musslewhite’s appeal of the
disciplinary proceeding;
The State Bar’s rule governing
the making of false and
misleading statements is
unconstitutional as applied in
Musslewhite’s case;
"[Sjeveral constitutional
travesties ... occurred in the
state court action";
The suspension imposed in the
state trial constituted a
violation of Musslewhite’s
First Amendment rights;
A44
eee re ee ee ee ee ee Se ee eee
(7) The punishment imposed in the
state trial was excessive;
(8) Musslewhite’s state trial was
tainted by prejudicial
publicity;
(9) Musslewhite received inadequate
notice of the state trial;
(10) The court refused to suspend
Musslewhite’s judgment upon his
filing a supersedeas bond while
appealing.
We will not belabor our conclusions
with a claim-by-claim analysis. All of
these contentions have in common their
grounding in some aspect of the
disciplinary proceedings against
Musslewhite. It is plain by the way they
are stated that they attack aspects of
his particular trial. We have stated
that "the Texas scheme for disciplining
attorneys is fully capable of considering
A45
the constitutional arguments of attorney-
defendants relating to specific
procedures followed in their cases."”
To evaluate them would require review of
the state court judgment. That, as
Feldman instructed, we are without the
jurisdiction to do.
V.
Musslewhite couched some of his
averments in the language of a general
constitutional attack on the State Bar’s
scheme of disciplining attorneys. Merely
using catch phrases, however, will not
vest the federal district court with the
jurisdictional authority to entertain the
action. This is about substance, not
form. Instead, we must ascertain what
the court really is being asked to
review.
16 Bishop v. State Bar of Texas, 736
F.2d 292, 294 (5th Cir. 1984).
A46
First Musslewhite complains that the
State Bar violated the constitutional
guarantee of equal protection by
selectively investigating himself and
others similarly situated. We have no
trouble classifying this contention as
but another attack on the State Bar's
procedures as applied to Musslewhite.
All of the evidence to which Musslewhite
alludes goes solely to his disciplinary
proceeding. That is, the procedures, he
charges, were used in this case to
deprive him of his equal protection
rights. This conclusion applies as well
to his charge that the State Bar
prosecutes solo practitioners for conduct
that it tolerates by large firms. The
state court was capable of resolving that
claim; it too is inextricably intertwined
with the state case.
[4] Musslewhite also argues that
A47
the State Bar rule governing the making
of false and misleading statements is, on
its face, unconstitutionally vague and
violates the First Amendment. The Texas
Court of Appeals flatly rejected this
contention that the rule was
unconstitutionally vague either on its
face or as applied in Musslewhite’s
case.’
The district court’s judgment
that it was incapable of revisiting that
sound judicial decision was correct.
Vi.
We turn now to the one claim for
which the district court was properly
vested with jurisdiction. Musslewhite
contends that the State Bar’s
disciplinary proceedings against him were
taken in bad faith in violation of his
due process rights. In Bishop v. State
7 Musslewhite, 786 S.W.2d at 441-
42.
A48
Bar of Texas'®, we stated that
Although Texas disciplinary
proceedings are capable of deciding
constitutional challenges to
specific procedures, recourse in
those proceedings is not a
sufficient avenue to remedy the
constitutional injury done by bad
faith proceedings themselves.
[5] The doctrinal underpinnings of
this “bad faith exception" are rooted in
the sister exception to the Younger
doctrine. In Younger v. Harris’, the
Supreme Court established ae policy
whereby federal intervention in ongoing
state criminal proceedings is barred
absent extraordinary circumstances.
Subsequent decisions teach us that a
state prosecution taken in bad faith or
for the purposes of harassment
constitutes such extraordinary
18 736 F.2d at 292 (emphasis added).
* 401 U.8s (37% 82 Bete 6746, 27
L.Ed.2d 669 (1971).
A49
circumstances and federal intervention is
justified.” This bad faith exception to
the Younger doctrine has two recognized
applications in our Circuit: First, where
the state prosecution is taken for the
purpose of deterring constitutionally
protected conduct’ and, second, where
the prosecution is motivated by a design
to harass the defendant .~
22 cee Trainor v. Hernandez, 431
U.S. 434, 446, 97 S.Ct. 1911, 1919, 52
L.Ed.2d 486 (1977); Huffman v. Pursue,
Ltd., 420 U.S. 592, 611-12, 95 §.Ct.
1206, 1212, 43 L.Ed.2d 482 (1975).
21 see Smith v. Hightower, 693 F.2d
359 (Sth Cir. 1982).
22 See Shaw _v. Garrison, 467 F.2d
113, 119-21 (5th Cir.), cert. denied, 409
U.s. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317
(1972), aff’g, 328 F.Supp. 390, 393-400
(1971). In Shaw, we detailed then
District Attorney Jim Garrison’s
harassing prosecution of Clay Shaw and
the bad faith tactics Garrison employed
in his zealous investigation of the
assassination of President John F.
Kennedy. Shaw represents perhaps the
paradigm in this Circuit if impermissible
2.50
The Younger doctrine does not apply
to the present matter, for the state
proceeding here in question is neither
criminal nor ongoing and, thus, no
question of intervention is presented.
We nonetheless have previously borrowed
Younger’s framework in clarifying when
federal courts may or may not become
involved in state court decisionmaking.
[6] The bad faith exception applies
here, Musslewhite has alleged that the
prosecutorial motives. Garrison used his
prosecution of Shaw as a means of
procuring public support-financial and
otherwise-of his larger investigation
into the assassination of the President.
See Shaw v. Garrison, 328 F.Supp. at 393-
400.
*3 See e.g. Moore v. Sims, 442 U.S.
415, 99 s.Ct. 2371, 60 L.Ed.2d 994 (1979)
(borrowing Younger principles for civil
proceedings in which important state
interests are involved); Henry v. First
National Bank of Clarksdale, 595 F.2d
291, 301 (5th Cir. 1979), cert. denied,
444 U.S. 1074, 100 s.Ct. 1020, 62 L.Ed.2d
756 (1980).
A5l
oS Ana tines Noe teh eR
wae
state’s judicial machinery was
appropriated in an effort to persecute
him. Implicit in these allegations is
that both the decision and the mechanism
itself are not trustworthy. The federal
courts must have subject matter
jurisdiction if a claim of bad faith and
harassment is ever to be proved, for the
claim is levied against the proceedings
themselves.
Vil.
[7,8] The next step, after having
decided that an allegation of bad faith
or harassment is a proper means of
invoking federal jurisdiction, is to
determine whether Musslewhite has
properly stated his claim for the
purposes of Rule 12(b)(6). Dismissal
under Rule 12(b)96) is not appropriate
“unless it appears beyond a doubt that
the plaintiff can prove no set of facts
A52
in support of his claim which would
“24 That familiar
entitle him to relief.
statement illustrates that the federal
courts are properly reticent to dismiss
cases for failure to state a claim.
Other mechanisms such as summary judgment
(Rule 56) and a motion for a more
definite statement (Rule 12(e)) are the
proper vehicles for narrowing the issues
and illustrating the boundaries of a
claim.
Hence, dismissal is not proper
merely because the plaintiff has failed
to set out in detail the facts upon which
he bases his claim.
[9] Applying these procedural
definitions to the present context, we
4 Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80
(1957).
2° Williams v. United Credit Plan of
Chalmette, Inc., 526 F.2d 713, 714 (5th
Cis. 1976)
A53
conclude that Musslewhite has stated a
claim that the proceedings against him
were taken in bad faith and motivated by
harassment. Comparing the present matter
with the Bishop case supports our
conclusion. In Bishop, we were satisfied
that the admittedly thin record brought
the case within the ambit of the liberal
Rule 12 standard. Yet, the plaintiff in
Bishop had alleged merely that the State
Bar’s efforts to discipline him spanned a
number of years and were taken “in bad
faith and for an improper motive."*
In the case at hand, the district
court properly recognized the distinction
created in Feldman but failed to uddress
Musslewhite’s claims of bad faith and
harassment. We approach this question
2 Bishop, 736 F.2d at 295.
A54
with only the record as our side.?’
Musslewhite’s pleadings plainly state a
claim for bad faith and harassment; most
of his complaint presents different
shades of exactly that charge. In
detail, he charges the State Bar with
making him the target of a retaliatory,
discriminatory, harassing conspiracy of
persecution, to be procured by fraud and
duress. We express no comment on the
merits of his claims, we hold simply that
he must be allowed to go forward.
VIII.
In conclusion, we affirm the Howell
construction of the Feldman rule; we
¢? See GHR Energy Corp. v. Crispin
Company, Ltd., 791 F.2d 1200, 1201 (5th
Cir. 1986) (Court may not look beyond
record on appeal); FRAP 10(a) (record is
comprised of papers, exhibits, docket
entries, and transcript from the district
court proceeding). Unfortunately, this
reminder is necessary. Musslewhite
burdened the Court
uphold the district court’s decision that
the federal court’s decision with the
federal courts are not vested with the
subject matter jurisdiction to review
Musslewhite’s challenges to his state
court disciplinary proceeding.
Musslewhite, however, sufficiently stated
a claim of bad faith and harassment which
vested the district court with the
jurisdictional authority to proceed.*
We AFFIRM the district court’s
dismissal of all claims save as
mentioned; we REVERSE and REMAND that
claim to the district court for
reconsideration consistent with the
foregoing.
A56
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BENTON MUSSLEWHITE,
Plaintiff,
V.
STATE BAR OF TEXAS,
KAREN R. JOHNSON,
JAMES M. McCORMACK,
STEVEN PETERSON,
STEVEN SMOOT,
CHARLES R. DUNN,
HARRIET MIERS,
) (
)¢
) (
)¢
)¢
) ¢ C.A. NO.
) (
)¢
) (
)¢
) (
) (
JAMES N. PARSONS, }{
)¢
)¢
)¢
) (
)¢
) (
) (
) (
) (
) (
) (
) (
H-92-938
TOM CUNNINGHAM,
RICHARD C. HILE,
ANTONIO ALVARADO,
CHARLES A. BEKCHAM,
MARTHA S. DICKIE,
M. COLLEEN McHUGH,
STEVEN L. MARTIN,
CHARLES O’REILLY,
SPENCER C. RELYEA,
JERRY SECREST and
KIRK WATSON,
Defendants.
FINAL JUDGMENT
This Court contemporaneously grants
the motion to dismiss (Document #22)
filed by all defendants. Therefore, this
A57
Court ORDERS that judgment be entered in
favor of defendants.
This is a FINAL JUDGMENT.
SIGNED at Houston, Texas, on this
the 25th day of June, 1992.
DAVID HITTNER
United States District Judge
A58
APPENDIX D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-2762
BENTON MUSSLEWHITE, and all
others similarly situated,
Plaintiff-Appellant,
versus
THE STATE BAR OF TEXAS, ET AL,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Texas
ON PETITION(S) FOR REHEARING AND
SUGGESTION(S) FOR REHEARING EN BANC
(Opinion, 5 Cir., , F.3d)
(December 5, 1994)
Before WISDON, BARKSDALE and EMILIO M.
GARZA, Circuit Judges.
PER CURIAM:
(x) The Petition(s) for Rehearing is
(are) DENIED and no member of this panel
A59
nor Judge in regular active service on
the Court having requested that the Court
be polled on rehearing en banc, (FRAP and
Local Rule 35) the Suggestion(s) for
Rehearing En Banc is (are) also DENIED.
Re The Petition(s) for Rehearing is
(are) DENIED and the Court having been
polled at the request of one of the
members of the Court and a majority of
the Judges who are in regular active
service not having voted in favor, (FRAP
and Local Rule 35) the Suggestion(s) for
Rehearing En Banc is (are) also DENIED.
= A member of the Court in active
service having requested a poll on the
reconsideration(s) of this cause en banc,
and a majority of the judges in active
service not having voted in favor,
rehearing(s) en banc is (are) DENIED.
ENTERED FOR THE COURT:
A60
fs/ John Minor Wisdom
United States Circuit Judge
CLERK'S NOTE:
SEE FRAP AND LOCAL
RULES 41 FOR STAY OF THE
MANDATE
A6l1
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BENTON MUSSLEWHITE,
and all others
similarly situated,
Plaintiff
C.A. NO.
H-92.-938
vs.
STATE BAR OF TEXAS,
KAREN R. JOHNSON, JAMES
M. McCORMACK, STEVEN
PETERSON, STEVEN SMOOT,
CHARLES R. DUNN,
HARRIET MIERS, JAMES N.
) PARSONS, TOM CUNNINGHAM,
RICHARD C. HILE,
ANTONIO ALVARADO,
| CHARLES A. BECKHAM,
) MARTHA S. DICKIE, M.
| COLLEEN McHUGH, STEVEN
L. MARTIN, CHARLES
| O'REILLY, SPENCER C.
RELYEA, JERRY SECREST
| and KIRK WATSON,
ee ee a ee ee eee ee ee ee ee”
PO LOR LAL LP LO LO LP Le LP LO Le Lm, fe, Lm, hm, fll, hm Lm, Lm, Lm, fm, Lm, GO, Gm, Lm
Defendants.
PLAI FF’S ORIGI PETITION
Benton Musslewhite, Plaintiff, and
all others similarly situated complain of
the State Bar of Texas, Karen R. Johnson,
James M. Mccormack, Steven Peterson,
A61 |
Steven Smoot, Charles R. Dunn, Harriet
Miers, James N. Parsons, Tom Cunninghan,
Richard C. Hile, Antonio Alvarado,
Charles A. Beckham, Martha S. Dickie, M.
Colleen McHugh, Steven L. Martin, Charles
O’Reilly, Spencer C. Relyea, Jerry
Secrest and Kirk Watson, all defendants
in the capacity or capacities set forth
below.
Claims for relief are stated as
follows:
i.
Jurisdiction and Venue
i} This is an action brought
pursuant to 42 U.S.C. Sec. 1983 for
vindication of constitutional rights, for
declaratory relief, and for an equitable
bill of review under the laws of the
State of Texas.
1.2 This Court has jurisdiction of
the present action by virtue of 28 U.S.C.
Sec. 1771, 1332, and 1343, and its
pendant jurisdiction.
1.3 Venue for this action is proper
in the Houston Division of the Southern
District of Texas, where the claims
arose.
1.4 As set out more completely
below, Plaintiff seeks certification of a
class pursuant to Fed. R. Civ. P. 23.
2+
Parties
2.3 Benton Musslewhite is 4a
resident of Harris County, Texas, and an
attorney licensed to practice law in the
State of Texas and in certain courts of
the United States of America.
2.2 The State Bar of Texas is a
public corporation and an administrative
agency of the judicial department of the
State of Texas. The State Bar of Texas
is a party herein only for purposes of
A63
the action in the nature of a bill of
review and for declaratory judgment.
2.3 Karen R. Johnson is the
executive director of the State Bar of
Texas. She is sued in her official
capacity.
2.4 James M. McCormack is the
general counsel of the State Bar of
Texas. He is sued in his official
Capacity.
2.5 Steven Peterson, at times
material to this action, was the general
counsel for the State Bar of Texas. He
is sued in his individual and official
capacities.
2.6 Steve Smoot, at times material
to this action, was an attorney employed
by the State Bar of Texas. He is sued in
his individual and official capacities.
2.7 The Board of Directors of the
State Bar of Texas, acting through the
A64
members of its Executive Committee,
individually listed below and named in
their official capacity, is sued for
purposes of equitable relief only:
A. Charles R. Dunn;
B. Harriet Miers;
Ge James N. Parsons;
D. Tom Cunningham;
E. Richard C. Hile;
F. Antonio Alvarado;
G. Charles A. Beckham;
H. Martha S. Dickie;
I. M. Colleen McHugh;
J. Steven L. Martin;
K. Charles O’Reilly
Spencer C. Relyea;
Jerry Secrest;
i ae »
Kirk Watson.
3.
Facts
3.3 Plaintiff was graduated with
A65
honors from the Southern Methodist
University in 1954. Plaintiff continued
his education and received an LL.M.
degree, with honors, from Georgetown
University School of Law.
3.2 From 1955 through 1957,
Plaintiff also served as a captain in the
Judge Advocate General Corps of the
United States Army Reserve, for which
service Plaintiff was decorated.
3.3 Plaintiff received appointments
by President Kennedy as an advisor to the
National Council on Physicai Fitness in
1961, and as a member of the Advisory
Board to the Area Redevelopment
Administration in 1962.
3.4 From 1969 to 1970, Plaintiff
served as legislative aide and then
administrative assistant to then United
States Senator Ralph W. Yarborough.
3.5 Plaintiff has been licensed to
A66
practice law in the state of Texas since
1954. Since 1958, with the exception of
Plaintiff’s service to Senator Yarborough
and the period of suspension which is the
subject of this action, Plaintiff has
been actively engaged in the practice of
law.
3.6 Throughout his career at the
bar, Plaintiff has specialized in
litigation, primarily in behalf of
plaintiffs in complex personal injury
cases.
3.7 Most particularly, Plaintiff
developed special expertise in the
representation of foreign workers injured
by the torts of American companies in
locations outside United States
territories. Many of these actions arose
from large scale disasters that injured
many workers simultaneously.
3.8 Plaintiff has also specialized
A67
in toxic tort litigation. For example,
Plaintiff was selected for, and has
served on, the court-appointed class
management committee for the nationwide
class of veterans injured by the effects
of Agent Orange.
3.9 Plaintiff has enjoyed singular
success in his practice before court of
all jurisdictions, including the United
States Supreme Court. As a result of
this success, Plaintiff has been
recognized nationally and internationally
as a leader in his chosen area of
practice.
3.10 Because of the unique nature
of Plaintiff’s practice, it occasionally
has been necessary for Plaintiff to make
public statements, through the medium of
press conferences and otherwise,
regarding his cases or the rights and
options of workers injured by the
A68
negligence of their employers or others.
Additionally, a number of Plaintiff's
cases, by their nature, were
controversial and highly publicized.
3.11 Although Plaintiff enjoyed an
absolute rights, as a member of the Bar
of this state and by virtue of the First
Amendment to the United States
Constitution and Article 1 Sec. 8 of the
Constitution of Texas to engage in the
conduct described above, Plaintiff's
actions found disfavor in the eyes of
Defendant State Bar of Texas and many of
its officials and agents.
3.12 Because of these, and other
equally unfounded motives, in 1985,
Defendants began an “investigation” of 17
members of the plaintiff’s bar in the
Houston area. These investigations
ostensibly were founded on allegations of
improper solicitation of clients.
A69
3.13 Defendants endeavored to
publicize the campaign against these
lawyers in an effort to discredit the
plaintiff’s bar generally and certain
practitioners specifically. Those
attorneys specially targeted by
Defendants were members of small or solo
practitioner firms engaged in the
practice of plaintiff-oriented tort
litigation.
3.14 Plaintiff fit into the special
class of attorneys unfairly targeted by
Defendants, and, because of his success
and renown, was a particularly fitting
target for Defendants’ selective and
unfair prosecution.
3.15 Of the 17 attorneys
investigated by Defendants, only three
ever were charged with misconduct,
despite the fact that Defendants well
knew of other practitioners guilty of far
A70
more serious infractions than those
alleged against Plaintiff.
3.16 of the three attorneys charge
- by Defendants, Plaintiff was the only one
who received a punishment of any
significance. Plaintiff was the only one
who suffered a substantial impairment of
his ability to practice his chosen
profession by reason of Defendants’
prosecution. Indeed, Defendants
specifically selected Plaintiff to be the
sole victim of their publicized campaign.
For example, Plaintiff has reason to
believe and does believe, that Defendant
Peterson, contrary to his duties and
responsibilities as an official of the
State of Texas, attempted to unfairly
absolve another attorney charged with
Plaintiff from any punishment whatsoever.
3.17 In 1984, Defendant State Bar
of Texas filed suit in Harris County
A71
against Plaintiff, seeking disbarment,
Suspension, or reprimand of Plaintiff
because of his alleged neglect of client
matters.
3.18 In 1987, Defendant filed a
second suit against Plaintiff, again
seeking disbarment, suspension or
reprimand, alleging that Plaintiff had
engaged in improper solicitation of
clients. The "neglect" action and the
"solicitation" action were joined into
one suit, State Bar of Texas v. Benton
Musslewhite, Nos. 86-44452 and 87-22402.
3.19 Defendants well knew prior to
and after filing suit against Plaintiff
that there was no basis for’ the
allegations against Plaintiff. Discovery
and investigations conducted in the cases
conclusively demonstrated that Plaintiff
had neither neglected nor solicited his
clients.
3.20 Nevertheless, Defendants
persisted in their campaign to obtain a
finding of liability against Plaintiff,
even if such finding had to be obtained
by fraud and duress.
3.21 By November of 1987,
Defendants’ campaign against Plaintiff
had begun to bear fruit. Defendants had
used the superior resources and position
of the State Bar as an agency of the
State of Texas to overcome Plaintiff
without regard to the merits of the
allegations. As a result, Plaintiff had
been forced to expend substantial sums of
money in defense of frivolous lawsuits,
endure public humiliation, embarrassment
and loss of reputation, as a result of
Defendants’ willingness to try _ the
allegations against the Plaintiff in the
public press, and risk suffering the loss
of his law practice because of the
A73
impossibility of defending himself and
also devoting sufficient attention to the
affairs of his clients.
3.22 For these and other reasons,
Plaintiff agreed to settle his dispute
with Defendants by entry of an agreed
judgment. This judgment provided that
Plaintiff would be actually suspended
from the practice of law for 90 days and
would be on probation for three years.
The agreement also provided that, for one
year following the date of the judgment,
Plaintiff would refer all new clients to
other attorneys. Finally, the agreement
provided that plaintiff’s probation could
be revoked if Plaintiff violated any
disciplinary rule in the future or the
probationary terms regarding the referral
of new clients.
3.23 Despite the duress suffered by
Plaintiff because of Defendants’
unconscionable conduct in presenting and
prosecuting its action against Plaintiff,
Plaintiff would not have agreed to the
above referenced settlement but for the
fraudulent conduct and misrepresentations
of Defendants.
3.24 The representations,
acquiescence, silences (when they had a
duty to speak) and other conduct of the
Defendants led Plaintiff to reasonably
believe that he had agreed with the
Defendants that the settlement judgment
meant the following:
A. That any future charges of new
disciplinary violations would be
processed through the appropriate
grievance committee and ultimately be
determined by a jury of Plaintiff’s
peers, as guaranteed by the State Bar
Rules, prior to the use of such
allegations to revoke Plaintiff’s
probation.
B. That Plaintiff would continue to
be free to exercise his liberties under
the First Amendment to the U.S.
Constitution, Article 1 Sec. 8 of the
Texas Constitution, and his rights as a
member of the Bar of this State to hold
press conferences in connection with
Plaintiff’s work on mass dinestere.
C. That plaintiff could continue to
discuss the joint handling of cases with
other lawyers, either in direct
communication or through public media.
D. That, in the event of an
application to revoke plaintiff's
probation, Plaintiff could rely on the
procedural projections of the Texas Rules
of Civil Procedure.
E. That in the event of an
application to revoke Plaintiff's
probation, Plaintiff would have the right
to engage in reasonable discovery in
defense against such application.
F. That, prior to referring any new
case to another lawyer under the referral
provisions of the Agreed Judgment, it
would be appropriate and necessary for
Plaintiff to be retained as counsel prior
to making the referral.
G. That Plaintiff would be required
to discuss the terms of his probationary
service with other persons only when
those persons approached Plaintiff to
consider employing him as an attorney.
3.25 But for the fraudulent
inducements of Defendants, Plaintiff
would have proceeded to trial on the
charges against him and would have
presented a valid defense of each charge.
3.26 Specifically, Plaintiff would
have shown in each case presented by
Defendants, that he had acted
A77
appropriately within the meaning of the
Disciplinary Rules of the State Bar of
Texas.
3.27 Not only were Defendants aware
that Plaintiff had been misled by
fraudulent inducements, but it was
Defendants’ intention to use the invalid
Agreed Judgment to coerce Plaintiff into
refraining from the future exercise of
his rights and liberties as a citizen and
member of the Bar. In particular,
Defendants intended to intimidate
Plaintiff into abandoning his
constitutional right to hold _ press
conferences and engage in other forms of
free speech. In the event’ the
Defendants’ coercion proved _ futile,
Defendants intended to use the Agreed
Judgment to unlawfully punish Plaintiff
for the exercise of his rights.
3.28 In September, 1988, Defendants
A78
“ ———— Se A SA i a
acted on the fraudulent and malicious
intentions by moving to revoke
Plaintiff’s probation under the terms of
the Agreed Judgment. The grounds for
Defendant’s motion were twofold:
A. First, that Plaintiff had
wrongfully accepted employment in new
cases; and
B. Second, that Plaintiff had
violated the State Bar’s rules against
false or misleading advertisements by
participating in certain communications
while in Scotland about a disaster
occasioned by the collapse of the
drilling platform Piper Alpha in the
North Sea.
3.29 Defendants well knew that
Plaintiff had not accepted a new case in
violation of the settlement agreement.
Rather, Plaintiff merely agreed to be
retained by a client solely in order to
A79
refer that client to another attorney in
accordance with the standard practices
and rules governing the State Bar.
3.30 More importantly, Defendants
well knew that Plaintiff had reason to
believe, and did believe, because of
communications with Defendants before and
after entry of the Agreed Judgment, that
the above mentioned procedure for the
referral of new cases had Defendants’
approval. For example, Plaintiff
specifically had explained his conduct
with regard to the alleged new employment
to Hartley Hampton, an agent of
Defendants who was appointed to monitor
Plaintiff’s activities during his period
of probation. Plaintiff had received Mr.
Hampton’s approval for his actions.
3.31 Prior to filing the action to
revoke Plaintiff's probation, Defendants
Peterson and Smoot had conferred with
A80
Plaintiff about the practice of holding
press conferences in connection with the
mass disasters such as the Piper Alpha
incident. Plaintiff explained the method
he had used in other cases which was the
same method Plaintiff followed in
Scotland. Plaintiff received Defendants’
approval of this method.
3.32 Defendant knew that
Plaintiff’s actions in connection with
the Piper Alpha disaster while in
Scotland were entirely consistent with
the rules governing attorneys in Texas,
Plaintiff’s rights and liberties as a
citizen, and the meaning of the Agreed
Judgment.
3.33 In prosecuting the action to
revoke Plaintiff’s probation, Defendants
intended to, and did, deprive Plaintiff
os his rights under the Texas Rules of
Civil Procedure, and of due process of
A8l
law as guaranteed to Plaintiff by the
federal and state constitutions.
Specifically, Plaintiff was deprived of
sufficient time to investigate and
respond to Defendants’ motion and was
denied sufficient time to engage in
discovery and prepare for trial on
Defendants motion. In this regard, by
way of example, Plaintiff will show that
he received only six days notice of
Defendants’ intention to revoke his
probation before trial on Defendants’
petition to revoke was commenced.
3.34 Defendants’ petition on the
above referenced matters was directly
contrary to the position earlier taken in
order of fraudulently induce Plaintiff to
enter into the Agreed Judgment.
3.35 In October, 1988, Plaintiff's
probation was revoked and Plaintiff was
suspended from the practice of law from
A82
escedbdbasddd Yr werabevims santauah iw onedis daa a
January 31, 1989 until January 31, 1992.
3.36 Plaintiff has sought every
avenue of legal redress available to him
in an effort to escape the imposition of
the inequitable and unlawful judgment
entered against him. These efforts have
been unsuccessful and Plaintiff has been
prevented from reer himself
against the fraudulent and
unconstitutional conduct of Defendants.
3.37 Pending the appeal of the
judgment against him, Plaintiff was
denied the ability granted all other
litigants to supersede the judgment
against him because of a rule of the
State Bar of Texas forbidding supersedeas
of all judgments suspending or disbarring
attorneys.
3.38 The above-mentioned rule is
overly broad and does not have any
rational relation to the ends sought to
A83
be served. Defendant’ application of the
rule against Plaintiff denied his equal
protection of the law, punished the
Plaintiff for the exercise of his liberty
of speech, and arbitrarily deprived
Plaintiff of his livelihood for three
years without rational basis. Defendants
caused the rule to be applied to
Plaintiff despite the knowledge that the
rule was unconstitutional and void on its
face.
3.39 The judgment against Plaintiff
has now become final by reason of the
exhaustion of Plaintiff’s appellate
remedies.
3.40 Plaintiff has suffered loss of
income in the past and future because of
Defendants’ unlawful, fraudulent and
conspiratorial conduct. Plaintiff has
further suffered extreme humiliation,
embarrassment, emotional distress and
A84
loss of reputation because of the conduct
of Defendants.
3.41 The unlawful effects of
Defendants’ conduct are continuous and
ongoing. The judgment against Plaintiff
operates as a stigma on his professional
Standing and reputation. Said judgment
further acts as a basis for harsher
treatment by Defendants that otherwise
prescribed in additional actions which
have been brought against Plaintiff.
3.42 Further, Defendants’ vendetta
is ongoing as evidenced by the fact that
they have filed new disciplinary charges
against Plaintiff which charges are known
by Defendants to be without merit. Said
charges are currently pending before the
245th District Court of Harris County,
Texas, in the case of The State Bar of
e Vv. ite.
3.43 Most importantly, the judgment
A85
against Plaintiff serves as a coercive
and chilling effect, barring Plaintiff
from further exercise of the liberties of
speech enjoyed by all Defendants.
4,
First Cause of Action:
Equal Protection of Law
4.1 Plaintiff incorporates the
foregoing averments in support of this
cause of action.
4.2 Defendants persecution of
Plaintiff, while simultaneovsly declining
to prosecute others similarly situated,
was discriminatory. The selective
prosecution of Plaintiff did not
rationally serve any legitimate end of
the State Bar of Texas. The treatment of
Plaintiff by the State Bar of Texas and
its agents was disproportionately harsh
as compared to the treatment of other
attorneys known by Defendants to be
similarly situated to Plaintiff.
A8&6
4.3 As an example of this harsh and
unequal treatment, Plaintiff will show
that another attorney, according to
Defendants’ own charges and evidence, was
at least as culpable as Plaintiff, if not
more so, for any violations of
disciplinary rules in connection with the
Piper Alpha incident. This attorney was
not punished by Defendants, nor even
prosecuted.
4.4 There was no rational basis for
the disproportionate treatment afforded
Plaintiff. Indeed the sole reason for
the events related above was Defendants’
unreasoning and groundless prejudice
against Plaintiff and his chosen method
of the practice of law.
4.5 Despite his efforts to do so,
Plaintiff has been denied the opportunity
to vindicate himself on the ground of
selective prosecution and equal
A87
protection of law until the judgment
entered against him became final.
4.6 The actions of Defendants,
throughout the time referenced herein,
and continuing to the present day,
deprive Plaintiff of equal protection of
the law as guaranteed by the Fourteenth
Amendment to the U.S. Constitution and
Article I Sec. 3 of the Constitution of
Texas.
-
Second Cause of Action:
Freedom of Speech
Si Plaintiff incorporates’ the
foregoing averments in support of this
ground of action.
5.2 Throughout the period of time
referred to herein, and continuing
through the present date, Defendants
conspired to, and did, limit Plaintiff’s
exercise of his liberties of speech, and
punished Plaintiff for such exercise.
A88
5.3 The judgment now final against
Plaintiff continues to punish = and
suppress Plaintiff from the free and
unfettered exercises of speech.
5.4 Defendants’ conduct as alleged
herein has deprived, and continues to
deprive, Plaintiff of his rights as
secured under the First Amendment to the
U.S. Constitution and Article I Sec. 8 of
the Texas Constitution.
6.1 Plaintiff incorporates the
foregoing statements in support of this
ground of action.
6.2 Article 10 Sec. 24 of the Texas
State Bar Rules, as applied against
Plaintiff and interpreted by Defendants,
denied Plaintiff the right to supersedeas
pending appeal of the judgment against
him.
A8&9
6.3 This rule, as interpreted by
Defendants and applied against Plaintiff,
deprived Piaintiff of the rights
guaranteed him under the Fourteenth
Amendment to the U.S. Constitution and
Article I Sec. 19 of the Constitution of
Texas.
6.4 Although he attempted to do so,
Plaintiff was not permitted to litigate
the issue before the appellate courts of
Texas.
6.5 Each day Plaintiff was barred
from practicing law during the pendency
of the appeal constituted a new and
independent violation of his rights to
due process of law.
6.6 As a further violation of his
right to due process of law, Plaintiff
will show that Defendants’ application to
revoke Plaintiff’s probation was based in
large part on events occurring in
A90
Scotland. Subjecting Plaintiff to
punishment for conduct engaged in beyond
the borders of Texas and the United
States is beyond Defendants’ jurisdiction
and lawful authority.
7.
Fourth Cause of Action:
Conspiracy
Zak Plaintiff incorporates the
foregoing averments in support of this
cause of action.
Soa Defendants conspired among
themselves and with others, known and
unknown to Plaintiff, to deprive
Plaintiff of the rights and liberties
enjoyed by him as a citizen, a member of
the Bar of the state of Texas, and a
litigant in the courts of the state of
Texas.
7.3 Said conspiracy and its
disastrous effect on Plaintiff operated
throughout the period of time referred to
A91
herein and continues to the present.
8.
Fifth Cause of Action:
Bill of Review
S.1 Plaintiff incorporates the
foregoing averments in support of this
cause of action.
S.2 The agreed judgment entered
against Plaintiff was the product of
unconscionable fraud and duress directed
against Plaintiff by Defendants, or, in
the alternative, mutual mistake of the
parties. Although Plaintiff had good and
valid defenses to each and every charge
brought against him, he was prevented
from asserting these defenses because of
his justifiable and reasonable reliance
on Defendants’ fraudulent inducements
and/or because of duress and/or the
mutual mistake of the parties.
8.3 Defendants’ fraudulent conduct
and/or duress and/or the mutual mistake
AQ92
of the parties was a direct cause of the
judgment entered against Plaintiff and
the ensuing revocation proceedings.
8.4 Plaintiff has been diligent in
pursuing his remedies of appeal from the
judgment complained of herein. Those
remedies have been unavailing and
Plaintiff has no adequate remedy at law
for the egregious wrongs done to him.
8.5 Plaintiff invokes the equitable
jurisdiction of this Court to rescind the
agreed judgment complained of herein and
declare said judgment, and all related
proceedings, including the revocation
proceedings and the revocation judgment,
to be void.
9.
Class Action
9.1 Plaintiff will further show
that the treatment he has received at the
hands of Defendants is consistent with
A93
Defendants’ continuing policy of
selective and unfair prosecution against
certain members of the Bar of this State.
9.2 Defendants unfairly target
attorneys involved in the solo practice
of law, or who are associated with small
law firms for prosecution and punishment
under the Defendants’ disciplinary rules.
Defendants similarly ignore or lightly
treat alleged rule violations by members
of larger law firms. This distinction
maintained by Defendants is arbitrary in
that it bears no rational relationship
with any legitimate end of Defendants.
9.3 The members .of this class of
small firms or solo practitioners are
suffering deprivation of their rights of
equal protection and due process of law
at the hands of Defendants.
9.4 The members of this class are
so numerous as to make joinder of all its
A94
ce ae i
AS iam a Rae RAR cs
OE te cae ne Oe mse ws.
members impractical. Further,
Defendants’ discriminatory policies raise
issues of law and fact common to the
class.
9.5 Plaintiff presents claims
herein which are common to all members of
the class and Plaintiff will fairly and
adequately represent the interests of the
class.
9.6 Defendants’ practices are in
violation of the rights of the class as a
whole. Therefore, damages, declaratory
and injunctive relief with respect to the
class as a whole is appropriate.
10.
Sixth Cause of Action:
Attorney’s Fees
10.1 It was necessary for Plaintiff
to secure the services of the undersigned
attorneys to present this action.
10.2 Plaintiff claims from
Defendants reasonable costs and
A95
attorney’s fees for the presentation of
this suit.
Conclusion and Prayer
WHEREFORE, premises considered,
Plaintiff respectfully prays that:
1. Defendants be cited to appear
and answer herein and that this case be
set for trial before a jury at the
earliest date consistent with the court’s
calendar;
2. A class be certified consisting
of all attorneys licensed to practice law
in the state of Texas who practice alone
Or in a small firm and who assert unfair
and unequal treatment in the
administration of Disciplinary Rules by
the State Bar of Texas, or, in the
alternative, such class as the court may
consider appropriate to the facts nad
circumstances herein;
3. Trial by jury be had;
A96
4. Upon the pleadings and findings
of the jury, this Court enter judgment
declaring that Defendants have deprived
Plaintiff and members of the class he
represents of their rights in the manner
and by the means alleged herein; and
5. This Court declare the agreed
judgment against Plaintiff complained of
herein, together with all proceedings
related thereto, including the revo ‘ation
judgment, to be void; and
6. Defendants be enjoined from
further violations of the riqhts of
Plaintiff and the members of the class he
represents; and
a4 Plaintiff and members of the
class he represents who have been damaged
recover reasonable damages, general and
special, compensatory and_ punitive,
against Defendants; and
8. Plaintiff and the members of the
A97
class he represents recover reasonable
costs and attorney’s fees against
Defendants; and
9. Plaintiff and the class he
represents receive such other relief as
may be just and equitable.
Respectfully submitted,
David T. Lopez
Attorney in Charge for
Plaintiff
SBOT No. 12563000
Lou Bright
Attorney for Plaintiff
SBOT No. 02991900
3900 Montrose Blvd.
Houston, Texas 77006
(713) 523-3900
OF COUNSEL:
DAVID T. LOPEZ & ASSOC.
Jury Demand
Plaintiff respectfully requests that
all issues of fact, save those expressly
reserved by law for the Court, be
determined by a jury.
A98
APPENDIX F
ARTICLES IN ADDITION TO,
AND IN AMENDMENT OF, THE
CONSTITUTION OF THE UNITED STATES
Proposed by Congress and Ratified by the
Several States, Pursuant to the Fifth
Article of the Original Constitution
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Explanatory notes:
In the original, the amendments are set
Out as “articles in addition to, and
amendatory of, the Constitution . . “an ie
Since they are usually referred to Simply
as “amendments," that term is used herein
instead of the word "Article," so as to
avoid confusion with the body of the
Constitution.
The first ten amendments to the
Constitution of the United States were
proposed to the legislatures of the
several states by the First Congress, on
the 25th of September, 1979. They were
ratified by the following states, and the
A99
notifications of ratification by the
governors thereof were successively
communicated by the President to
Congress: Delaware, January 28, 1790;
Maryland, December 19, 1789; New
Hampshire, January 25, 1790; New Jersey,
November 20, 1789; New York, March 27,
1790; North Carolina, December 22, 17689;
Pennsylvania, March 10, 1790; Rhode
Island, June 15, 1790; South Carolina,
January 19, 1790; Vermont, November 3,
1791; and Virginia, December 15, 1791.
The following of the thirteen original
states did not ratify until the year
1939: Connecticut, April 10; Georgia,
March 18; Massachusetts, March 2.
Amendments:
By Religious and political freedom.
i Right to bear arms.
3. Quartering soldiers.
4. Unreasonable searches and seizures.
A100
id.
i: FP
Criminal actions-Provisions
concerning-Due process of law and
just compensation clauses.
Rights of the accused.
Trial by jury in civil cases.
Bail-Punishment.
Rights retained by people.
Rights reserved to states or people.
Suits against states-Restriction of
judicial power.
Election of President and Vice-
President.
Section 1. Slavery prohibited.
2. Power to enforce
amendment.
AMENDMENT 1
Religious and political freedom.
Congress shall make no law respecting an
establishment of religion, or prohibiting
the free exercise thereof; or abridging
Al0Ql
the freedom of speech, or of the press;
or the right of the people peaceable to
assemble, and to petition the Government
for a redress of grievances.
A102
APPENDIX G
AMENDMENTS
ARTICLES IN ADDITION TO,
AND IN AMENDMENT OF, THE
CONSTITUTION OF THE UNITED STATES
Proposed by Congress and Ratified by the
Several States, Pursuant to the Fifth
Article of the Original Constitution
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Explanatory notes:
In the Original, the amendments are set
Out as “articles in addition to, and
amendatory of, the Constitution... .*
Since they are usually referred to Simply
as "amendments," that term is used herein
instead of the word “Article,” so as to
avoid confusion with the body of the
Constitution.
The first ten amendments to the
Constitution of the United States were
Proposed to the legislatures of the
Several states by the First Congress, on
the 25th of September, 1979. They were
A103
ratified by the following states, and the
notifications of ratification by the
governors thereof were successively
communicated by the President to
Congress: Delaware, January 28, 1790;
Maryland, December 19, 1789; New
Hampshire, January 25, 1790; New Jersey,
November 20, 1789; New York, March 27,
1790; North Carolina, December 22, 1789;
Pennsylvania, March 10, 1790; Rhode
Island, June 15, 1790; South Carolina,
January 19, 1790; Vermont, November 3,
1791; and Virginia, December 15, 1791.
The following of the thirteen original
States did not ratify until the year
1939: Connecticut, April 10; Georgia,
March 18; Massachusetts, March 2.
Amendments:
ie Religious and political freedom.
r Right to bear arms.
3 Quartering soldiers.
A104
4, Unreasonable searches and seizures.
5. Criminal actions-Provisions
concerning-Due process of law and
just compensation clauses.
6. Rights of the accused.
7. Trial by jury in civil cases.
8. Bail-Punishment.
9. Rights retained by people.
10. Rights reserved to states or people.
il. Suits against states-Restriction of
judicial power.
12. Election of President and Vice-
President.
13. Section 1. Slavery prohibited.
2. Power to enforce
amendment.
AMENDMENT 14
Section 1. Citizens of the United
States.
All persons born or naturalized in the
United States, and subject to the
A105
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
law.
Sec. 2. Representatives-Power to reduce
apportionment.
Representatives shall be apportioned
among the several States according to
their respective numbers, counting the
whole number of persons in each State,
excluding Indians not taxed. But when
the right to vote at any election for the
choice of electors for President and
Vice-President of the United States,
Representatives in Congress, the
A106
ie se
Executive and Judicial officers of a
State, or the members of the Legislature
thereof, is denied to any of the male
inhabitants of such State, being twenty-
one years of age, and citizens of the
United States, or in any way abridged,
except for the participation in
rebellion, or other crime, the basis of
representation therein shall be reduced
in the proportion which the number of
such male citizens shall bear to the
whole number of male citizens twenty-one
years of age in such State.
Sec. 3. Disqualification to hold office.
No person shall be a Senator or
Representative in Congress, or Elector of
President and Vice-President, or hold any
office, civil or military, under the
United States, or under any State, who,
having previously taken an oath, as a
member of Congress, or as an officer of
A107
the United States, or as a member of any
state legislature, or as an executive or
judicial officer of any State, to support
the Constitution of the United States,
shall have engaged in insurrection or
rebellion against the same, or given aid
or comfort to the enemies thereof. But
Congress may by a vote of two-thirds of
each House, remove such disability.
Sec. 4. Public debt not to be
questioned-Debts of the Confederacy and
claims not to be paid.
The validity of the public debt of the
United States, authorized by law,
including debts incurred for payment of
pensions and bounties for services in
suppressing insurrection or rebellion,
shall not be questioned. But neither the
United States nor any State shall assume
or pay any debt or obligation incurred in
aid of insurrection or rebellion against
the United States, or any claim for the
A108
loss or emancipation of any slaves; but
all such debts, obligations, and claims
shall be held illegal and void.
Sec. 5. Power to enforce amendment.
The Congress shall have power to enforce,
by appropriate legislation, the
provisions of this article.
HISTORY, ANCILLARY LAWS AND DIRECTIVES
Explanatory notes:
The Fourteenth Amendment to the
Constitution of the United States was
proposed to the legislatures of the
several states by the Thirty-ninth
Congress, on the 16th June, 1866. On the
2ist day of July, 1868, Congress adopted
and transmitted to the Department of
State a concurrent resolution, declaring
that “the legislatures of the States of
Connecticut, Tennessee, New Jersey,
Oregon, Vermont, New York, Ohio,
Illinois, West Virginia, Kansas, Maine,
A109
Nevada, Missouri, Indiana, Minnesota, New
Hampshire, Massachusetts, Nebraska, Iowa,
Arkansas, Florida, North Carolina,
Alabama, South Carolina, and Louisiana,
being three-fourths and more of the
several States of the Union, have
ratified the fourteenth article of
amendment to the constitution of the
United States, duly proposed by two-
thirds of each house of the Thirty-ninth
Congress: Therefore, Resolved, That said
fourteenth article is hereby declared to
be a part of the Constitution of the
United States, and it shall be duly
promulgated as such by the Secretary of
State." The Secretary of State
accordingly issued a proclamation, dated
the 28th of July, 1868, declaring that
the proposed Fourteenth Amendment had
been ratified, in the manner hereafter
mentioned, by the legislatures of thirty
A110
een nO MVE MONE at
of the thirty-six states, viz:
Connecticut, June 30, 1866; New
Hampshire, July 7, 1866; Tennessee, July
19, 1866; New Jersey, Sept. 11, 1866
(although the legislature of the same
state passed a resolution in April, 1868,
to withdraw its consent to it); Oregon,
Sept. 19, 866; Vermont, Nov. 9, 1866;
Georgia, July 21, 1868 (having previously
rejected it Nov. 13, 1866); North
Carolina, July 4, 1868 (having previously
rejected it Dec. 4, 1866); South
Carolina, July 9, 1868 (having previously
rejected it Dec. 20, 1866); New York,
Jan.- 10, 1867; Ohio, Jan. 11, 1867
(although the legislature of the same
state passed a resolution in January,
1868, to withdraw its consent to it);
Illinois, Jan. 15, 1867; West Virginia,
Jan. 16, 1867; Kansas, Jan. 18, 1867;
Maine, Jan. 19, 1867; Nevada, Jan. 22,
Alll
1867; Missouri, Jan. 26, 1867; Indiana,
Jan. 29, 1867; Minnesota, Feb. 1, 1867;
Rhode Island, Feb. 7, 1867; Wisconsin,
Feb. 13, 1867; Pennsylvania, Feb. 13,
1867; Michigan, Feb. iS, 1867;
Massachusetts, Mar. 20, 1867; Nebraska,
June 15, 1867; Iowa, Apr. 3, 1868;
Arkansas, Apr. 6, 1868; Florida, June 9,
1868; Louisiana, July 9, 1868; and
Alabama, July 13, 1868. Georgia again
ratified it Feb. 2, 1870. Texas ratified
it Feb. 18, 1870 (having rejected it Nov.
1, 1866). Virginia ratified it Oct. 8,
1869 (having rejected it Jan. 19, 1867).
The amendment was rejected by
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APPENDIX H
RULES OF APPELLATE PROCEDURE
GENERAL PROVISIONS
Rule 41. Issuance of Mandate; Stay of
Mandate
(a) Date of Issuance. The mandate
of the court shall issue 21 days after
the entry of judgment unless the time is
shortened or enlarged by order. A
certified copy of the judgment and a copy
of the opinion of the court, if any, and
any direction as to costs shall
constitute the mandate, unless the court
directs that a formal mandate issue. The
timely filing of a petition for rehearing
will stay the mandate until disposition
of the petition unless otherwise ordered
by the court. If the petition is denied,
the mandate shall issue 7 days after
entry of the order denying the petition
unless the time is shortened or enlarged
by order.
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(b) Stay of Mandate Pending
Application for Certiorari. A stay of
the mandate pending application to the
Supreme Court for a writ of certiorari
may be granted upon motion, reasonable
notice of which shall be given to all
parties. The stay shall not exceed 30
days unless the period is extended for
cause shown. If during the period of the
stay there is filed with the clerk of the
court of appeals a notice from the clerk
of the Supreme Court that the party who
has obtained the stay has filed a
petition for the writ in that court, the
stay shall continue until disposition by
the Supreme Court. Upon the filing of a
copy of an order of the Supreme Court
denying the petition for writ of
certiorari the mandate shall issue
immediately. A bond or other security
may be required as a condition to the
grant or continvance of a stay of the
mandate.
NOTES OF ADVISORY COMMITTEE
ON APPELLATE RULES
1967 ADOPTION
The proposed rule follows the rule
or practice in a majority of circuits by
which copies of the opinion and the
judgment serve in lieu of a formal
mandate in the ordinary case. Compare
Supreme Court Rule 59. Although 28
u%.6.C. Sec. 2191(¢) permits a writ of
certiorari to be filed within 90 days
after entry of judgment, seven of the
eight circuits which now regulate the
matter of stays pending application for
certiorari limit the initial stay of the
mandate to the 30-day period provided in
the proposed rule. Compare D.C. Cir.
Rule 27(e)-
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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.