Petition for Writ of Certiorari — Danner v. Board of Professional Responsibility of the Supreme Court of Tennessee, (2009) (No. 470)
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(i) 09-470 OCT 19 2099
No. OFFICE OF THE CLERK
Jn Whe
Supreme Court of the Anited States
DAVID E. DANNER, ESQ.,
Petitioner,
Vv.
BOARD OF PROFESSIONAL RESPONSIBILITY
OF THE TENNESSEE SUPREME COURT,
CHARLES A. HIGH,
Respondents.
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Sixth Circutt
PETITION FOR WRIT OF CERTIORARI
Davib E.. DANNER, Esq.
P.O. Box 1307
ANTIOCH, TN 37011-1307
(615) 596-5460
Petitioner Pro Se
October 19, 2009
Becker Gallagher - Cincinnati, OH - Washington. D.C. + 800.890.5001
i
QUESTION PRESENTED
I.
Whether Younger abstention applies to bar a
constitutional challenge to a state law in federal court
due to concurrent but separate and unrelated state
proceedings against the federal litigant.
li
TABLE OF CONTENTS
QUESTION PRESENTED ..................-.
TABLE OF CITED AUTHORITIES ............ iv
OPINIONS .........0.--c cece eeeeeeeeeeeees 1
JURISDICHIGM [ees .......... 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS ..........00-02 cee eeeeeeeee 1
STATEMENT OF THE CASE ................ 5
ARGUMENT |.) 9
A. Reasons for granting Petition ........... 9
B. Rules of the Tennessee Supreme Court
offend the United States Constitution .... 19
CONCLUSION (2 cs... 21
APPENDIX
Appendix <A: Circuit Court Opinion
(5/1 S/2OGG) ae ee kw. la
Appendix B: District Court Opinion
(8/7/2008) . oy eee a we 4a
Appendix C: Order Denying Petition for
Rehearing (7/2G720mge) .....-........-.... lla
il
Appendix D: Plaintiffs Post-Hearing Brief
CHD gv Snes a ee ee eee l3a
Appendix E: Plaintiffs Pre-Hearing Brief
i, | ee ea ee ee ere eer 17a
Appendix F: Plaintiffs Emergency Motion for
Temporary Restraining Order (7/22/2008) .. 29a
1V
TABLE OF CITED AUTHORITIES
CASES
Adams v. Attorney Registration & Disciplinary
Commission of the Supreme Court of Illinois,
600 F. Supp. 390(N.D. Ill. 1984), aff'd, 801 F.2d
ee Ge, OD gc ve bcc ewes xs 16, 17, 18
Brotherton v. Cleveland,
173 F.3d 552 (6" Cir. 1999) ............... 11
Burford v. Sun Oil Co.,
319 U.S. 315, 63 S. Ct. 1098, 87 L.Ed. 1424
SE ae a en ey ea ha ee eee 18
Cafeteria Workers v. McElroy,
367 U.S. 886, 81 S. Ct. 1743, 6 L.Ed.2d 1230
SNCs tee oe Len et, eee rare ee 19
Colorado River Water Conservation District, et al.
v. United States,
424 U.S. 800, 96 S. Ct. 1236, 47 L.Ed.2d 483
SNS oS rire gp con hoa ee hs ie a ae 13,17
County of Allegheny v. Frank Mashuda Co.,
360 U.S. 185, 79 S. Ct. 1060, 3 L.Ed.2d 1163
(1959)
Craig v. Boren,
429 U.S. 190, 97 S. Ct. 451, 50 L.Ed.2d 397
1 RRMA ET Serer ae eis OA rae ce gE eR RD 12
Danner v. Board of Professional Responsibility
(Danner 1),
277 Fed. Appx. 575 (6" Cir. 2008)......... 6,8
Vv
Danner v. Board of Professional Responsibility
(Danner IT),
2009 WL 139981 (6 Cir. May 18, 2009) .. 8,18
District_of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 103 S. Ct. 1303, 75 L.Ed.2d 206
SE eae es eke OL ee eee eS 11
Dubuc v. Michigan Bd. of Law Examiners,
342 F.3d 610 (6" Cir. 2003) .............. 11
Ex parte Young,
209 U.S. 123, 28S. Ct. 441, 52 L.Ed.714
RE eee Cua a ae teas ee. waa ee a 11
Goldberg v. Kelly,
397 U.S. 254, 90 S. Ct. 1011, 25 L.Ed.2d 287
| tite SEEN aah pete a, PAA Be niet uy i mips nent 19
Hicks v. Miranda,
422 U.S. 332, 95 S. Ct. 2281, 45 L.Ed.2d 223
I es) ra a ecg ge et ate in, i@
Hudson v. Palmer,
468 U.S. 517, 104 S. Ct. 3194, 82 L.Ed.2d 393
Se ee es oh ee ek Coe ee ee 20
Huffman v. Pursue, Ltd.,
420 U.S. 592, 95 S. Ct. 1200, 43 L.Ed.2d 482
I te cre fer er sal g taka ee a oa hint a ene 14
Jordan v. Hutcheson,
323 F.2d 597 (4 Cir. 1963)
Juidice v. Vail,
430 U.S. 327, 97 S. Ct. 1211, 51 L.Ed.2d 376
NE oe ar ies Cog Or by ks Wk eee A
Lake Carriers Ass’n v. MacMullen,
406 U.S. 498, 92 S. Ct. 1749, 32 L.Ed.2d 257
(a ie Sas a Rees ae Fe a ee
Lawrence v. Chabot,
182 Fed. Appx. 442 (6 Cir. 2006)
Louisiana Power & Light Co. v. City of Thibodaux,
360 U.S. 25, 79 S. Ct. 1070, 3 L.Ed.2d 1058
Hig leg oe faa oe or nae lien een nt oe
Mathews v. Eldridge,
424 U.S. 319, 96 S. Ct. 893, 47 L.Ed.2d 18
ee a eg ie ane Vue ia urea ge ary
Middlesex Ethics Committee v. Garden State Bar
Association,
457 U.S. 423, 102 S. Ct. 2515, 73 L.Ed.2d 116
(1981)
Mistretta v. United States,
488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714
EE Rabe i Oe nS aay ee ag ae a e's 20,
Morrissey v. Brewer,
408 U.S. 471, 92 S. Ct. 2593, 33 L.Ed.2d 484
era. a are als in abe hea ea a ee
Parratt v. Taylor,
451 U.S. 527, 101 S. Ct. 1908, 68 L.Fid.2d 420
INA A esa Se anne SOM
21
V1)
People of the State of Illinois v. General Electric Co.,
683 F.2d 206 (7" Cir. 1982), cert. denied, 461
U.S. 913, 103 S. Ct. 1891, 77 L.Ed.{2d] 282
Ey Oe es eee etree oe eee 15, 16, 18
Railroad Commission of Texas v. Pullman,
312 U.S. 496, 4158. Ct. 643, 85 L.Ed. 971 (1941)
Rooker v. Fidelity Trust Co.,
263 U.S. 413, 44 S. Ct. 149, 68 L.Ed. 362
I ane ia Pa wy eae yy eb hue ea el 11
Secretary of Maryland v. Joseph H. Munson Co.,
467 U.S. 947, 104 S. Ct. 2839, 81 L.Ed.2d 786
ae ce ota ie ee eee 12
State v. Thompson,
197 S.W.3d 685 (Tenn. 2006) ............. 21
Steffel v. Thompson,
415 U.S. 452, 94 S. Ct. 1209, 39 L.Ed.2d 505
SS cc ae c 520-4 visie s niee o ee ee passim
Trainor v. Hernandez,
431 U.S. 484, 97 S. Ct. 1911, 52 L.Ed.2d 486
EL eR REOne tt Tend ee Sr eee ee ee 14
Virginia v. American Booksellers Ass'n,
484 U.S. 383, 108 S. Ct. 636, 98 L.Ed.2d 782
eT aE he ME TRI ort SEA le 12
Wisconsin v. Constantineau,
400 U.S. 433, 91 S. Ct. 507, 27 L.Ed.2d 515
A ee eae eee 10
vill
Younger v. Harris,
401 U.S. 37, 91 S. Ct. 746, 27 L. Ed.2d 669
Ie ks ee gy ab wee Oe kaa passim
Zinermon v. Burch,
494 U.S. 113, 110 S. Ct. 975, 108 L.Ed.2d 100
NS ed reo Cs 6 aa a ae Ok a 19, 20
CONSTITUTIONS
Oe rae 1
U.S. Const. Eleventh Amend. ................ 11
U.S. Const. Fourteenth Amend. ......... 1, 19, 20
ye ee 2, 20
"TOW, CONG, GTGUENE VEL SS ww wc ccc ees 6
gc 8 ee 6
STATUTES
es oie oc Ok 4 a 540 4 we eer 1
a ae er 8
cece bees aneewereewes¥awn 8
ab a eh ga’) oe eee aoe ee eae 8
ses gn oy ose 0b 08 od ee 8
pg i sf | re $, 20, 21
ee peace ke ve eew eens 8
i sk gd 4 a be a4 Oe Oe 21
epee PPP ere eee e ree eee 4, 20, 21
TAA, BeBe" OMUMK AKC) 2... ce eee 3, 20, 21
pg ee VS | OS irae 3, 20, 21
pee Te ea ee nee 6
RULES
Eg cern ne War a ne tN ig 18
a i es wd a aa Rk eR 18
ix
Tenn. Sup. Ct. R. 9,9 4.5 ..........-: .... passim
Tenn. Sup. Ct. R.9,§ 8.1 ....... eevee. 7,8, 21
Tenn. Sup. Ct. R. 21,8 7.07 ........ eae. ae
]
OPINIONS
The opinion of the United States Court of Appeals
for the Sixth Circuit is reported at 2009 WL 1391981
(6" Cir. May 18, 2009). The opinion of the United
States District Court for the Middle District of
Tennessee is reported at 2008 WL 3200799 (M.D.
Tenn. August 7, 2008).
JURISDICTION
The opinion of the United States Court of Appeals
for the Sixth Circuit, affirming the opinion of the
United States District Court for the Middle District of
Tennessee, was filed on May 18, 2009. A timely
petition for rehearing was denied on July 29, 2009.
This Court has jurisdiction pursuant to 28 U.S.C.
1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS
United States Constitution, First Amendment
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.
United States Constitution, Fourteenth Amendment
All persons born or naturalized in the United
States and subject to the jurisdiction thereof,
are citizens of the United States and of the
2
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 protections of the laws. ...
Tennessee Constitution, Article I -— Declaration of
Rights
Tennessee Constitution, Article I, Section 8
That no man shall be taken or imprisoned, or
disseized of his freehold, liberties or privileges,
or outlawed, or exiled, or in any manner
destroyed or deprived of his life, liberty or
property, but by the judgment of his peers or
the law of the land.
Section 4.3, Rule 9 of the Tennessee Supreme Court
On petition of the Disciplinary Counsel and
supported by an affidavit demonstrating facts
personally known to affiant, showing that an
attorney has ... failed to respond to the Board or
Disciplinary Counsel concerning a complaint of
misconduct ..., the [Tennessee] Supreme Court
may issue an order with such notice as the
Court may prescribe imposing temporary
conditions of probation on said attorney or
temporarily suspending said attorney, or both.
3
Tennessee Code Annotated 8-23-207
[A]ny self-sustaining board, commission or
agency created by the supreme court of
Tennessee shal! be deemed a state agency and
all employees of such boards, commissions or
agencies shall be deemed state employees and
shall be entitled to the same rights and benefits
enjoyed by other state employees. ..
Tennessee Code Annotated 8-23-204(a)(1)(C)
‘State agency’ means any department,
commission, board, office or other agency of the
executive, legislative or judicial branch of state
government.
Tennessee Uniform Administrative Procedures Act,
T.C.A. 4-5-101 et seq.
Tennessee Code Annotated 4-5-102(2)
‘Agency’ means each state board, commission,
committee, department, officer, or any other
unit of state government authorized or required
by any statute or constitutional provision to
make rules or to determine contested cases .
Tennessee Code Annotated 4-5-320 - Proceedings
affecting licenses. —
(a) When the grant, denial, or renewal of a license
is required to be preceded by notice and opportunity
for hearing, the provisions of this chapter concerning
contested cases apply.
4
(b) When a licensee has made timely and sufficient
application for the renewal of a license or a new license
with reference to any activity of a continuing nature,
the existing license does not expire until the
application has been finally determined by the agency,
and, in case the application is denied or the terms of
the new license limited, until the last day for seeking
review of the agency order or a later date fixed by
order of the reviewing court.
(c) No revocation, suspension, or withdrawal of any
license is lawful unless, prior to the institution of
agency proceedings, the agency gave notice by mail to
the licensee of facts or conduct that warrant the
intended action, and the licensee was given an
opportunity to show compliance with all lawful
requirements for the retention of the license. If the
agency finds that public health, safety, or welfare
imperatively requires emergency action, and
incorporates a finding to that effect in its order,
summary suspension of a license may be ordered
pending proceedings for revocation or other action.
These proceedings shall be promptly instituted and
determined.
(d) (1) Notwithstanding the _ provisions’ of
subsection (c), in issuing an order of summary
suspension of a license the agency shall use one (1) of
the following procedures:
(A) The agency shall issue a notice to the
licensee providing an opportunity for a prompt
informal hearing, review or conference before the
agency prior to the issuance of an order of summary
suspension; or
5
(B) The agency shall proceed with the
summary suspension and notify the licensee of the
opportunity for an informal hearing, review or
conference before the agency within seven (7) business
days of the issuance of the order of summary
suspension.
(2) The notice provided to the licensee may be
provided by any reasonable means and shall inform
the licensee of the reasons for the action or intended
action of the agency and of the opportunity for an
informal hearing, review or conference before the
agency. The informal! hearing, review or conference
described by this subsection (d) shall not be required
to be held under the contested case provisions of this
chapter. ‘The hearing, review or conference is intended
to provide an informal, reasonable opportunity for the
licensee to present the licensee's version of the
situation to the person or entity authorized by law to
summarily suspend the license involved. Whether the
informal hearing, review or conference is held before or
after an order of summary suspension, the sole issue
to be considered is whether the public health, safety or
welfare imperatively required emergency action by the
agency.
STATEMENT OF THE CASE
This appeal seeks to challenge the constitutionality
of one or more provisions of the regulatory rules of the
Tennessee Supreme Court that permit such judicial
entity via its administrative agencies and lower courts
to summarily take the property right of Tennessee
lawyers, that is, a law license, without the due process
of law required by the U.S. Constitution which state
administrative rules where used herein as tools to
6
engage in targeted harassment and retaliation towards
petitioner Tennessee lawyer for said counsel’s serics of
advocacy to improve the administration of justice in
the state of Tennessee.
Petitioner engaged in the First Amendment
protected activity of pursuing prior constitutional
litigation commenced on April 24, 2006 against
respondent state board, Danner v. Board of
Professional Responsibility of the Tennessee Supreme
Court (Danner I), 277 Fed. Appx. 575, 2008 WL
1987043 (6" Cir. May 6, 2008),’ which challenged the
' Petitioner also published a full-length commentary on the
editorial page of Nashville, Tennessee newspaper T'he City Paper
on March 26, 2008 which was critical of the Tennessee Supreme
Court and the Tennessee Plan (T.C.A. 17-4-101 et seq.) stating
that the system of selection and appointment of state appcllate
judges offended the Tennessee Constitution, to wit:
The Judges of the Supreme Court shall be elected by the
qualified voters of the State. The Legislature shall have
power to prescribe such rules as may be necessary to
carry out the provisions of section two of this article.
Every Judge of the Supreme Court shall be thirty-five
years of age, and shall before his election have been a
resident of the State for five years. His term of service
shall be eight years.
The Judges of the Circuit and Chancery Courts, and of
other inferior Courts, shall be elected by the qualified
voters of the district or circuit to which they are to be
assigned. Every Judge of such Courts shall be thirty years
of age, and shall before his election, have been a resident
of the State for five years and of the circuit or district one
year. His term of service shall be eight years.
TENN. CONST., Art. VI, Sec. 3, Sec. 4 (emphases added).
Petitioner urged the Tennessee General Assembly to end the
7
constitutionality of Section 8.1 of Rule 9 of the
Tennessee Supreme Court. Thereafter, Respondents
threatened Petitioner lawyer with disbarment or
suspension on the charge that Petitioner failed to
respond to informal ethics inquiries by Respondents,
who have the apparent regulatory authority to write
letters to Tennessee lawyers seeking informal
responses to client complaints on various issues
arising within the attorney-client relationship.
Petitioner responded by letter dated August 6, 2007 to
Respendents’ ethics inquiry dated July 25, 2007.
Despite such response by Petitioner, Respondents
submitted to Petitioner a Notice of Petition for
Temporary Suspension dated September 4, 2007
pursuant to Section 4.3 of Rule 9 of the Tennessee
Supreme Court for failure to respond to said letter
dated July 25, 2007. Such accusation of non-response
was the second time in as many months that
Petitioner was wrongfully accused by Respondents of
non-response to an informal ethics inquiry.
Tennessee Plan, which was due to sunset in June 2008 if not
renewed by such state legislature. The Chief Justice of the
Tennessee Supreme Court published a rebuttal opinion to
Petitioner’s commentary in the July 7, 2008 edition of The City
Paper. Petitioner engaged in other publiccommentary against the
Tennessee Plan on both Nashville and Knoxville, Tennessee talk
radio stations on May 19, 2008. Petitioner urged the public to
contact their state legislators to vote to end the Tennessee Plan.
The ‘Tennessee Plan was dealt an adverse procedural vote within
the Tennessee General Assembly on May 20, 2008 which vote
caused a key institution that selected Tennessee state judges - the
now-defunct Tennessce Judicial Selection Commission - to begin
aone-year wind-down to extinction that culminated in June 2009.
Tennessee Bar Fight: Busting the monopoly on judicial selection,
WALLST. J., June 15, 2009, at Al4
8
Petitioner filed a Complaint in the U.S. District
Court for the Middle District of Tennessee against
Respondents on June 27, 2008 seeking prospective,
equitable relief challenging the constitutionality of
Section 4.3 (Danner IT), whereas the prior suit had
challenged Section 8.1 (Danner I). The District Court
possessed subject matter jurisdiction over the federal
constitutional claims therein pursuant to 28 U.S.C.
§§ 1331 and 1343 and supplemental jurisdiction over
the corresponding state constitutional claims therein
pursuant to 28 U.S.C. 1367.2 Respondents filed an
Answer in District Court on July 21, 2008. On the
same day July 21, Respondents also commenced a
formal ethics proceeding against Petitioner in a state
tribunal. Respondents’ Answer in federal court pled
abstention as a defense due to such state proceedings.
On the next day July 22, Petitioner filed a motion for
restraining order with the District Court seeking to
enjoin Respondents from any effort to summarily
suspend Petitioner’s law license pursuant to Section
4.3. The motion was set for a July 31, 2008 hearing,
wherein the District Court declined to take any
evidence from Petitioner and ruled to dismiss the
Petitioner’s case sua sponte by order dated August 7,
2008 based on the abstention doctrine due to said state
ethics action filed against Petitioner by Respondents
on July 21, 2008 subsequent to Petitioner’s federal
action filed on June 27, 2008. Petitioner filed a timely
notice of appeal on September 5, 2008.
* Pursuant to 28 U.S.C. 1367, respondent state agency can be sued
in federal court for supplemental state claims because, inter alia,
a state avency is a “person”, pursuant to T.C.A. 4-5-102(9), for the
purpose of Petitioner’s state claims under the Tennessee
Constitution, as opposed to 42 U.S.C. 1983 “person” analysis
concerning such government entitics.
9
On appeal, the U.S. Court of Appeals for the Sixth
Circuit adopted, via summary disposition, the opinion
of the U.S. District Court for the Middle District of
Tennessee on May 18, 2009. Petitioner filed a timely
motion for rehearing on May 26, 2009 requesting that
the Sixth Circuit independently review the substantive
issues in Petitioner’s appeal. The Sixth Circuit denied
Petitioner’s request for rehearing on July 29, 2009.
This Petition seeks a fair opportunity to advocate
that the decisions of the United States Supreme Court
concerning abstention be amplified and clarified via a
modern holding that such decisions do not authorize
the abstention doctrines being abused by state
governments to block litigation in federal court based
on frivolous and false charges filed against a federal
litigant in a state tribunal after the commencement of
such litigant’s federal action.
ARGUMENT
A. Reasons for granting Petition
Because Petitioner filed a federal constitutional
claim in federal district court on June 27, 2008 and
Respondents subsequently filed both an answer with
the federal court and a state charge against Petitioner
with a state ethics panel on the same day July 21,
2008 wherein said answer in federal court claimed
abstention as a defense due to said separate and
unrelated state proceedings, Younger v. Harris, 401
U.S. 37, 91 S. Ct. 746, 27 L. Ed.2d 669 (1971), the
Tennessee Supreme Court possesses the demonstrated
and deliberate option to deflect much needed
constitutional reform within the state judiciary by
falsely charging a vocal and vigilant Tennessee lawyer
10
with ethics violations arising from facially frivolous
attorney-client complaints, thereby conjuring ongoing
state proceedings, in order to cause any such
constitutional claim in federal court to be dismissed;
whereas, this Court has opened the door to preventing
such abstention abuse via its preliminary standard
that a state proceeding that is contemporaneous to a
federal proceeding must not result in the federal court
applying Younger abstention to dismiss the federal
action if the state-court action does not present a
substantial and immediate possibility of obviating the
federal claim because of any resultant state-court
decision on state-law grounds. Steffel v. Thompson,
415 U.S. 452, 475, ftnt. 22,94 S. Ct. 1209, 1224, ftnt.
22, 39 L.Ed.2d 505, 524, ftnt. 22 (1974) citing Lake
Carriers Ass’n v. MacMullen, 406 U.S. 498, 92 S. Ct.
1749, 32 L.Ed.2d 257 (1972); Wisconsin _ v.
Constantineau, 400 U.S. 433, 9158S. Ct. 507, 27 L.Ed.2d
515 (1971). Petitioner was falsely accused multiple
times in 2007 of the state ethics violation of failing to
respond to the ethics inquiries of Respondents which
inquiries were both harassing and repetitive and also
submitted to Petitioner subsequent to Petitioner’s
protected activities to reform the Tennessee judiciary.
Jordan v. Hutcheson, 323 F.2d 597 (4 Cir. 1963)
(holding that harassing governmental ethics
investigations may constitute constitutional
violations). In the Jordan case, black lawyers
protested the excessive, harassing investigative
practices of a state entity that ostensibly concerned
itself with “legal ethics” but that misused such
respectable mantra to conceal and camouflage civil
rights violations. 323 F.2d at 602-603, 604, 606. The
Jordan court saw fit to retain jurisdiction amidst that
state’s efforts to engage in abstention abuse in order
for the plaintiff lawyers therein to be fairly heard in
1]
federal court on the merits, 323 F.2d at 605-06,
whereas the District Court herein denied Petitioner
lawyer any opportunity to be heard on the merits
despite Petitioner claiming comparable abuse and
citing Jordan (2008 WL 3200799). Cf Id.
Petitioner sought prospective, general equitable
relief in federal district court challenging the
constitutionality of lawyer disciplinary rule Section 4..3
of Rule 9 of the Tennessee Supreme Court, District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462,
485-487, 103 S. Ct. 1303, 1316-1317, 75 L.Ed.2d 206,
224-25 (1983), Rooker v. Fidelity Trust Co., 263 U.S.
413, 44 S. Ct. 149, 68 L.Ed. 362 (1923),*’ wherein the
* An exception to the Rooker-Feldman abstention doctrine - which
doctrine prohibits state litigants from appealing final state-court
rulings to federal district courts - permits American lawyers to
challenge the constitutionality of state bar rules in federal] district
court seeking prospective, general equitable relief because such
exception makes an apparent distinction between state-court
rulings and state-court rules in applying fundamental abstention
principles that bar a federal court from proscribing or reviewing
state-court rulings. See Feldman, 460 U.S. at 485-487, 103 S. Ct.
at 1316-1317, 75 L.Ed.2d at 224-25(1983). Such Rooker-Feldman
abstention exception corresponds to the well-established Eleventh
Amendment exemption that permits federal litigants to challenge
the constitutionality of such state rules seeking prospective,
general equitable relief. Ex parte Young, 209 U.S. 123, 28S. Ct.
441, 52 L.Ed.714 (1908); but compare Dubuc v. Michigan Bd. of
Law Examiners, 342 F.3d 610, 615 (6 Cir. 2003) (analyzing
Eleventh Amendment concerning Michigan bar with multi-tiered,
state-treasury Sixth Circuit standard, by a circuit panel) citing
Brotherton v. Cleveland, 173 F.3d 552, 560-61 (6" Cir. 1999) with
Lawrence v. Chabot, 182 Fed. Appx. 442, 450 (6" Cir.
2006 (analyzing Eleventh Amendment concerning same Michigan
bar without multi-tiered, state-treasury Sixth Circuit standard, by
a separate circuit panel)
12
above-stated concurrent and contrived state
proceedings against Petitioner had no relationship to
Petitioner’s Section 4.3 challenge in federal court
because there was no Section 4.3 claim within such
state proceedings commenced on July 21, 2008 with
the state ethics panel and brought subsequent to
Petitioner being falsely accused in 2007 of Section 4.3
violations, which Section 4.3 threats of law licensure
suspension nevertheless provided Petitioner jus tertii
standing to sue in federal court challenging Section
4.3. Steffel, 415 U.S. at 475-476, 94 S. Ct. at 1223-
1224, 39 L.Ed.2d at 524 (holding that, regardless of
whether federal injunctive relief may be appropriate,
federal declaratory relief is not precluded when no
state proceeding is pending and a federal plaintiff
demonstrates a genuine threat of enforcement of a
disputed state rule).‘
The Steffel standard concerning concurrent but
separate and unrelated state proceedings - which
incrementally and effectively modified the prior
Younger holding on said narrow grounds - must be
elevated from a slight fine-print footnote to a settled
definitive doctrine. Steffel, 415 U.S. at 475 ftnt. 22, 94
* Because most Tennessee lawyers, despite their advanced legal
training, are fearful of rightfully challenging the Tennessee
Supreme Court agencies that have jurisdiction over their law
licensure — the Board of Professional Responsibility and the
Commission on Continuing Legal Education and Specialization -
concerning unconstitutional administrative rules, petitioner
possesses jus tertii standing to represent both his interests and
the interests of all Tennessee lawyers herein. Virginia _v.
American Booksellers Ass’n, 484 U.S. 383, 108 S. Ct. 636, 98
L.Ed.2d 782 (1988); Secretary of Maryland v. Joseph H. Munson
Co., 467 U.S. 947, 1048S. Ct. 2839, 81 L.Ed.2d 786 (1984); Craig v.
Boren, 429 U.S. 190, 97S. Ct. 451, 50 L.Ed.2d 397 (1976).
13
S. Ct. at 1224 ftnt. 22, 39 L.Ed.2d at 524 ftnt. 22.° The
Steffel court “left open” the issue of whether a state
proceeding must be pending on the day the federal
case is filed, Hicks v. Miranda, 422 U.S. 332, 349, 95
S. Ct. 2281, 2292, 45 L.Ed.2d 223, 239 (1975), which
the Hicks court answered in the negative by holding
that “where state criminal proceedings are begun
against the federal plaintiffs after the federal
complaint is filed but before any proceedings of
substance on the merits have taken place in the
federal court, the principles of Younger v. Harris
should apply in full force” concerning an action
wherein such plaintiffs therein were actually charged
with violating a statute that these federal litigants
were actually challenging in federal court. Id.
However, the Hicks court in turn “left open”
intertwining issues created by such subterranean
standard within Steffel such as (1) whether Younger
should apply to bar a prospective constitutional
challenge to a state law in federal court due to state
proceedings that have no direct relationship to the
specific law being challenged in federal court, (2)
whether Younger should apply in a case wherein
frivolous state proceedings are commenced against a
federal plaintiff after such litigant files a civil rights
action in federal court, and (3) whether Younger
should apply in a case wherein a federal plaintiff has
° This Court has discussed and decided an abstention anomaly
concerning concurrent and interrelated federal and _ state
proceedings arising from the same federal Jaw. Colorado River
Water Conservation District, et.al. v. United States, 424 U.S. 800,
96S. Ct. 1236, 47 L.Ed.2d 483 (1976). But no abstention standard
exists for concurrent and unrelated federal and state proceedings
arising from different state rules or laws. 424 U.S. 800, 813-19, 96
S. Ct. 1236, 1244-47, 47 L.Ed.2d 483, 495-99.
14
committed no offense under the state law that such
plaintiff is challenging in federal court. See Id.
Because Petitioner lawyer did not violate state
disciplinary rule Section 4.3 without dispute, an
extended quote of Seventh Circuit jurisprudence
interpreting, amplifying, and clarifying Younger
within these general contexts is appropriate, to wit:
Abstention ... is a narrow exception to the duty
of a federal court to adjudicate a controversy
before it and is justified only in exceptional
circumstances. See County of Allegheny v.
Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.
Ct. 1060, 1062-63, 3 L.Ed.2d 1163 (1959). ...
Plaintiffs claim that the type of abstention in
Younger v. Harris,401 U.S. 37,91 8S. Ct. 746, 27
L.Ed.2d 669 (1971), is appropriate in this case.
Younger abstention was recently applied to
state bar disciplinary hearings in Middlesex
Ethics Committee vu. Garden State Bar
Association, 457 U.S. 428, 102 S. Ct. 2515, 73
L.Ed.2d 116 (1981). It must be noted, however,
that the proceeding in Middlesex followed an
alleged violation of disciplinary rules. In fact,
the Supreme Court has only applied Younger in
cases where a state enforcement proceeding
followed an alleged violation of a state statute
or rule, even if only in civil proceedings. See
e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 95
S. Ct. 1200, 43 L.Ed.2d 482 (1975)(enforcement
of nuisance statute after alleged violation);
Juidice v. Vail, 430 U.S. 327,978. Ct. 1211, 51
L.Ed.2d 376 (1977 )judicial contempt proceeding
after alleged violation); Trainor v. Hernandez,
431 US. 434, 97 S. Ct. 1911, 52 L.Ed.2d 486
15
(1977)(civil suit seeking return of money
fraudulently obtained).
The Seventh Circuit has explicitly required
some sort of violation and the existence of
subsequent enforcement proceedings for a
Younger abstention to be allowed. In People of
the State of Illinois v. General Electric Co., 683
F.2d 206 (7 Cir. 1982), cert. denied, 461 U.S.
913, 103 S. Ct. 1891, 77 L.Ed.[2d] 282 (1983),
the Seventh Circuit held that Younger does not
require abstention where there has been no
violation of state law. In that case the federal
plaintiff brought a declaratory action alleging
that a certain state law was unconstitutional.
The federal defendant, the state, subsequently
filed an action in state court seeking an
injunction against the federal plaintiffs
predicated upon the statute. The Seventh
Circuit held that removal of the state action was
improper. The court then refused to apply the
Younger doctrine to the federal case.
[T]he federal plaintiffs in the present case
did not violate state law, so the state could
not have brought a penalty action against
them. The state’s interest in maintaining
law and order through enforcement of its
penal statutes was not impaired by the
federal lawsuit and the principle of the
Younger case is therefore inapplicable.
Id. at 212. ...
‘I'he court in General Electric was specifically
concerned with the situation that would occur
16
here if the court allowed an action for
prospective relief to form the basis for a
Younger abstention.
(T]he state argues, as an alternative ground
for dismissal of the federal suit, that the
district court, even if it had jurisdiction,
should have abstained from exercising it and
forced the companies to litigate exclusively
in the state courts. There must be
something wrong with this argument,
because if it were accepted it would prevent
people from ever challenging the
constitutionality of state legislation in
federal court. Every time someone brought
a suit to have a state law declared
unconstitutional the state would
immediately file an action in state court to
enjoin violation of the statute and then move
the federal district court to stay or dismiss
the federal suit, thereby forcing the federal]
plaintiff to litigate his federal claims by way
of defense in the state court action.
683 F.2d at 212-13. In the present case
plaintiffs chose to litigate their constitutional
claims in federal court. They had not, at the
time of filing, violated the disciplinary rule ... In
this circuit at least, the state cannot now bring
an enforcement action that would require this
court to abstain. ...
Adams v. Attorney Registration & Disciplinary
Commission of the Supreme Court of Illinois, 600 F.
Supp. 390, 394-95 (N.D. Ill. 1984) affd 801 F.2d 968
(7" Cir. 1986)holding that Younger abstention is
17
inapplicable to dismiss a federal-court action by a
lawyer challenging the _ constitutionality of a
disciplinary rule of a state supreme court wherein the
lawyer had not violated the challenged state rule
wherefore the state could bring no proceeding in state
court against such lawyer concerning the challenged
rule). The Seventh Circuit standards stated in Adams
and General Electric could be operative as guides to
deliberate the Question herein, and also the above-
stated three (3) interrelated and facilitating issues
attached thereto, concerning the current tenor of
Younger among the Circuits in the wake of its progeny,
Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281, 45
L.Ed.2d 223 (1975), Steffel v. Thompson, 415 U.S. 452,
94S. Ct. 1209, 39 L.Ed.2d 505, 524 (1974), Younger v.
Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed.2d 669
(1971), because this Court has established no
definitive holding to govern or guide federal-court
adjudication of concurrent but separate and unrelated
state proceedings. See Colorado River Water
Conservation District, et al. v. United States, 424 U.S.
800, 813-19, 96 S. Ct. 1236, 1244-47, 47 L.Ed.2d 483,
495-99 (1976)(discussing history of federal-state courts
concurrent jurisdiction standards as_ issues
independent from the abstention doctrines).
This Court must exercise its supervisory function
over lower federal courts because (1) the Sixth Circuit
departed far from accepted and usual judicial
proceedings because Petitioner briefed Steffel on
appeal but the Sixth Circuit in its terse rulings below
(2009 WL 1391981) simply ignored such binding
precedent set by this Court, Steffel, 415 U.S. at 475-
476, 94S. Ct. at 1223-1224, 39 L.Ed.2d at 524, (2) the
District Court departed far from accepted and usual
judicial proceedings, which departure was sanctioned
18
by the Sixth Circuit, by, without basis in law,
summarily dismissing Petitioner’s claim sua sponte at
threshold stage during Petitioner’s injunction hearing
held on July 31, 2008 — without Respondents even
having to file a customary F.R.C.P. 12 motion to
dismiss citing any applicable law - _ thereby
affirmatively denying Petitioner any opportunity to
present any evidence to support Petitioner’s retaliation
claim or his motion for a temporary restraining order
seeking equitable relief, F.R.C.P. 65(6), Steffel, 415
U.S. at 475-476, 94S. Ct. at 1223-1224, 39 L.Ed.2d at
524 (holding that federal equitable relief is not
precluded when no state proceeding is pending),
Adams, 600 F. Supp. at 392, 396 (granting temporary
restraining order in federal court to lawyer concerning
operation of a disciplinary rule promulgated by a state
supreme court), and (3) the decision of the Sixth
Circuit in the instant Danner II (2009 WL 139981)
case directly conflicts with comparable decisions of the
Seventh Circuit upholding the Adams court (801 F.2d
968) and interpreting the Younger court concerning
the nuances of various abstention standards. Adams,
600 F. Supp. at 393-396 (discussing and distinguishing
the Burford, Pullman, and Younger abstention
standards of the United States Supreme Court as non-
applicable to lawyers who have violated no ethics rule
being challenged in federal court);° People of the State
of Illinois v. General Electric Co., 683 F.2d 206 (7" Cir.
° Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed.2d 669
(1971); Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87
L.Ed. 1424 (1943); Railroad Commission of Texas v. Pullman, 312
U.S. 496, 41 S. Ct. 643, 85 L.Ed. 971 (1941); see also Louisiana
Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S. Ct.
1070, 3 L.Ed.2d 1058 (1959).
19
1982) cert. denied 461 U.S. 913, 103 S. Ct. 1891, 77
L.Ed.2d 282 (1983){supra].
Therefore, the time has come for further
progression of the progeny of Younger abstention in
order to resolve practical and pressing problems left
pending by these cases and controversies concerning
constitutional challenges to state laws in federal court
amidst concurrent but separate and unrelated state
proceedings against federal litigants. See Id.
B. Rules of the Tennessee Supreme Court
offend the United States Constitution
Pursuant to Section 4.3 of Rule 9 of the Tennessee
Supreme Court, any Tennessee lawyer can _ be
disbarred or suspended without a pre-deprivation
hearing for an alleged failure to respond to an ethics
inquiry; therefore, Section 4.3 is unconstitutional
because such summary suspension offends the
procedural due process clause of the Fourteenth
Amendment to the United States Constitution. See e.g.
Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47
L.Ed.2d 18, 33 (1976); Morrissey v. Brewer, 408 U.S.
471, 481, 92 S. Ct. 2593, 33 L.Ed.2d 484 (1972);
Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25
L.Ed.2d 287 (1970); Cafeteria Workers v. McElroy, 367
U.S. 886, 895, 81 S. Ct. 1743, 6 L.Ed.2d 1230 (1961).
In this type of case, procedural] due process specifically
requires an evidentiary hearing before summary
suspension of law licensure is implemented pursuant
to Section 4.3. Zinermon v. Burch, 494 U.S. 113, 136-
39, 110 S. Ct. 975, 989-90, 108 L.Ed.2d 100, 120-22
(1990). First, it is not unforeseeable that a Tennessee
lawyer could be suspended under said rule. Id. at 136.
Second, it is not impossible for Respondents to hold a
20
pre-deprivation evidentiary hearing before a Section
4.3 suspension is implemented because’ the
Respondents make provision for a post-deprivation
hearing in the same Section 4.3. Id. at 136-137. Third,
Respondents are delegated, assigned, or granted
powers by the Tennessee Supreme Court via its Rule
9 which bureaucratic deliberation gravitates against
the random, unauthorized deprivation of
constitutionally protected interests that would justify
the government being relieved of any pre-deprivation
evidentiary hearing. Id. at 138, 115, 129-130 citing
Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68
L.Ed.2d 420 (1981), Hudson v. Palmer, 468 U.S. 517,
104 S. Ct. 3194, 82 L.Ed.2d 393 (1984). Therefore,
Section 4.3 violates the Fourteenth Amendment to the
U.S. Constitution because the general principles of due
process dictate pre-determination due process, as
opposed to post-determination due process, by the
state-court agency herein. Zinermon, 494 U.S. at 136-
39, 110 S. Ct. at 989-90, 108 L.Ed.2d at 120-22;
compare T.C.A. 4-5-102(2), T.C.A. 4-5-320(c), T.C.A. 8-
23-204(a)1)(C), T.C.A. 8-23-207 with Mistretta v.
United States, 488 U.S. 361, 384-385, 388-389, 393-
394, 394 ftnt. 20, 109S.Ct. 647, 661, 663-664, 665-666,
666 ftnt. 20, 102 L.Ed.2d 714, 738-39, 740-41, 743-44,
744 ftnt. 20 (1989)(holding that a federal-court agency
is subject to the due process standards of the federal
Administrative Procedure Act).’
’ Section 4.3 of Rule 9 of the Tennessee Supreme Court is
unconstitutional pursuant also to the state due process standards
of Tennessee, TENN. CONST., Art. I, Sec. 8, because said
disciplinary rule permits the state high court to (1) prescribe any
notice to a Tennessee lawyer that it sees fit and (2) impose
summary suspension on the professional license of a Tennessee
lawyer, without the specific pre-deprivation findings and other
21
CONCLUSION
Based on the arguments above, Petitioner
respectfully requests the issuance of a writ of
certiorari to the United States Court of Appeals for the
Sixth Circuit.
specified due process required by the Tennessee Administrative
Procedures Act (TAPA), to wit:
If the agency finds that public health, safety, or welfare
imperatively requires emergency action, and incorporates
a finding to that effect in its order, summary suspension
of a license may be ordered pending proceedings for
revocation or other action.
T.C.A. 4-5-320(c)[emphasis added]. Despite the unlawful
efforts of the Tennessee Supreme Court to exempt itself from the
due process provisions of the United States Constitution and the
Tennessee Constitution via its various summary suspensionand
sanctions powers, Section 4.3 of Rule 9 of the Tennessee Supreme
Court, Section 8.1 of Rule 9 of the Tennessee Supreme Court,
Section 7.07 of Rule 21 of the Tennessee Supreme Court, such state
administrative procedures statute applies nevertheless to
respondent Board of Professional Responsibility of the Tennessee
Supreme Court because said board isa T.C.A. 8-23-207 and T.C.A.
8-23-204(a)(1)(C) “state agency” subject to TAPA, per T.C.A. 4-5-
102(2). Therefore, such state-court agency is not itself a “court”
exempt from the administrative due process provisions of TAPA,
per T.C.A. 4-5-106(a). See Mistretta v. United States, 488 U.S.
361, 384-385, 388-389, 393-394, 394 ftnt. 20, 109 S.Ct. 647, 661,
663-664, 665-666, 666 ftnt. 20, 102 L.Ed.2d 714, 738-39, 740-41,
743-44, 744 ftnt. 20 (1989)(holding that a federal-court agency -
despite its presence under the judicial branch - is not a court and
does not exercise judicial power because it is an independent
agency subject to the due process dictates of the federal
Administrative Procedure Act); see also State v. Thompson, 197
S.W 3d 685, 691 (Tenn. 2006)holding that the phrase “state
agency” was operative to invoke TAPA provisions in that case).
22
Respectfully Submitted,
David E. Danner, Esq.
P.O. Box 1307
Antioch, TN 37011-1307
615.596.5460
Pro Se
APPENDIX
APPENDIX A
NOT RECOMMENDED FOR FULL-TEXT
PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 08-6075
[Filed May 18, 2009]
DAVID E. DANNER,
Plaintiff-Appellant,
Vv.
BOARD OF PROFESSIONAL
RESPONSIBILITY OF THE TENNESSEE
SUPREME COURT; CHARLES A. HIGH,
Defendants-Appellees.
Nowe ee eee eee
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
Before: GUY, GILMAN, and COOK, Circuit Judges.
COOK, Circuit Judge. David Danner sued the
Tennessee Supreme Court’s Board of Professional
2a
Responsibility (“the Board”) and its former
Disciplinary Counsel, Charles High, during a Board
investigation of complaints filed by Danner’s former
clients. The district court dismissed his case without
prejudice under the abstention doctrine articulated in
Younger v. Harris, 401 U.S. 37 (1971). Danner appeals,
and we affirm.
t.
We review de novo a district court’s order declining
federal jurisdiction on grounds of Younger abstention,
Fieger v. Thomas, 74 F.3d 740, 743 (6th Cir. 1996). The
Younger doctrine counsels federal courts to abstain
from enjoining certain pending state court criminal
proceedings, 401 U.S. at 44, but the doctrine also
extends to ongoing administrative proceedings, such as
state bar disciplinary processes, Middlesex County
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,
434-35 (1982). Federal courts properly invoke Younger
abstention when a proceeding satisfies three criteria:
“(1) the underlying proceedings constitute an ongoing
state judicial proceeding; (2) the proceedings implicate
important state interests; and (3) there is an adequate
opportunity to raise constitutional challenges in the
course of the underlying proceeding.” Danner v. Bd. of
Profl Responsibility of the Tenn. Supreme Court, 277
F. App’x 575, 578 (6th Cir. 2008).
Here the Board proceedings are ongoing state
judicial proceedings for purposes of applying Younger.
The Board commenced its disciplinary process by
authorizing a Petition for Discipline before Danner
filed his state court claim. State bar disciplinary
proceedings may be “judicial in nature.” Middlesex,
457 U.S. at 433-34. In fact, this Circuit holds that
3a
similar attorney disciplinary proceedings are “an
adjudicative, rather than a legislative, function.”
Squire v. Coughlan, 469 F.3d 551, 556 (6th Cir. 2006);
see also Danner, 277 F. App’x at 578; Fieger, 74 F.3d at
744.
As for the remaining Younger criteria, the
regulation and discipline of attorneys is without a
doubt an important state function. See Danner, 277 F.
App’x at 579. Moreover, the disciplinary process
provides for judicial review of allegations that the
Board’s findings violate constitutional provisions. /d.
We therefore conclude that the proccedings satisfy al]
three of the Younger criteria and hold that the district
court correctly abstained in deference to the state
proceeding. In addition, Danner failed to invoke any of
the exceptions to Younger abstention—“bad faith,
harassment, or flagrant unconstitutionality.” Squire,
469 F.3d at 556 (citation and internal quotation marks
omitted).
IT.
We affirm.
4a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
No. 3:08-0651
Judge Nixon
[Filed August 7, 2008]
DAVID EF. DANNER, ESQ.,
Plaintiff,
Vv.
RESPONSIBILITY OF THE
TENNESSEE SUPREME
COURT; CHARLES A. HIGII,
)
)
)
)
)
)
BOARD OF PROFESSIONAL )
)
)
)
)
Defendants. )
)
ORDER
On July 31, 2008, the Court held a hearing on
Plaintiffs Emergency Motion for ‘Temporary
Restraining Order (“Plaintiffs Motion”) (Doc. No. 5).
As a result of arguments presented at the hearing on
Plaintiffs Motion, and after thorough review of the
parties’ pleadings, the Court determines that this case
5a
should be DISMISSED without prejudice in
accordance with Younger v. Harris, 401 U.S. 37 (1971).
Plaintiffs Motion is DENIED as moot.
I. BACKGROUND
1. Procedural Background
Plaintiff David E. Danner, Esq. (“Mr. Danner’) filed
suit on June 27, 2008. (Doc. No. 1). Mr. Danner
represents himself in this matter and claims violations
of 42 U.S.C. §§ 1983 and 1985, the First, Fifth, and
Fourteenth Amendments to the United States
Constitution, and §§ 8, 19, and 21 of Article I of the
Tennessee state Constitution. (Id.) He seeks a
declaratory judgment that § 4.3 of Rule 9 of the
Tennessee Supreme Court (“§ 4.3”) is unconstitutional,
an injunction against “any policy, practice, or conduct
by Defendants deemed to be in violation of the federal
and state constitutions,” and an award of attorneys
fees and costs. (Id.).
Mr. Danner filed the present Emergency Motion for
Temporary Restraining Order (Doc. No. 5) on July 22,
2008. He filed a supporting Declaration of David E.
Danner, Esq. (Doc. No. 6) on July 22, 2008, and a
supporting Memorandum (Doc. No. 7) on July 23,
2008. Defendants filed a Response in Opposition (Doc.
No. 8) along with a supporting Affidavit from Randall
J. Spivey, Disciplinary Counsel for the Board of
Professional Responsibility of the Supreme Court of
Tennessee (“the Board”), (Doc No. 9) on July 23, 2008.
Plaintiffs Motion seeks a preliminary injunction
against use of § 4.3 against any lawyer licensed to
practice in Tennessee, or in the alternative, against
6a
Plaintiff. Section 4.3 authorizes the Board to
temporarily suspend the law license of a
Tennessee-licensed attorney for failure “to respond to
the Board of Disciplinary Counsel concerning a
complaint of misconduct.” TN. R.S. CT. RULE 9, § 4.3
(2008).
2. Factual Background’
1. Mr. Danner’s Previous Suit Against the
Board
On April 26, 2006, Mr. Danner filed a suit against
the Board and its Disciplinary Counsel in the Middle
District of Tennessee federal court that was, in all
material respects, identical to the present suit. That
earlier suit was filed in response to a notice of
intention to discipline as well as a _ proposed
admonition sent to Mr. Danner by the Board in March,
2006. This notice by the Board was the result of a
complaint filed by a former client of Mr. Danner’s in
February, 2005. In notifying Mr. Danner of its
intention to discipline, the Board acted under
authority of § 8.1 of Rule 9 of the Tennessee Supreme
Court Rules (“§ 8.1”). The basis of Mr. Danner’s suit
were claims that § 8.1 was unlawful under federal and
state constitutions, and that the Board was engaging
in retaliatory harassment of Mr. Danner responsive to
his engagement in protected speech. ‘lhe district court
' All facts are undisputed unless otherwise noted. Facts in this
section are taken from the Sixth Circuit’s opinion in Danner v.
Board of Professional Responsibility of the Tennessee Supreme
Court, 2008 WL 1987043 (6th Cir. 2008). and the Affidavit of
Randall J. Spivey (Doc. No. 9). Plaintiff's allegations are taken
from the Declararation of David E. Danner (Doc. No. 6).
Ja
dismissed Mr. Danner’s suit without prejudice under
Younger. Mr. Danner’s two subsequent pleas for
post-judgment relief were denied, as was his appeal to
the Sixth Circuit. Danner v. Bd. _ of Prof’
Responsibility, 2008 WL 1987043 (6th Cir. 2008).
The present suit arises out of slightly different
facts. ‘wo more complaints were filed against Mr.
Danner by former clients of his in May, 2007. The
Board responded to these complaints by mailing
inquiries to Mr. Danner, asking him to justify his
conduct and billing practices. The Board avers that it
misplaced a few of Mr. Danner’s responses to its
inquiries, and erroneously issued a Notice of Petition
for Temporary Suspension as a result. Mr. Danner
timely responded to this Notice, and no action was
taken to suspend his law license. It is undisputed that
no proceeding is currently ongoing or contemplated for
suspension of Mr. Danner’s license.
The Notice mailed to Mr. Danner in error was
issued under authority of § 4.3. Mr. Danner responded
by filing the present suit. The factual differences
between this action and the one filed in this District in
2006 are (1) that they arise out of different complaints
registered with the Board, and (2) that they challenge
different provisions of Rule 9 of the Tennessee
Supreme Court Rules. reflective of the different.
disciplinary actions taken by the Board in the two
instances. Mr. Danner maintains his claim of unlawful
retaliation in violation of the First Amendment.
Sa
2. The Board’s Ongoing Proceedings
Against Mr. Danner
The Board did not take any disciplinary action
against Mr. Danner relative to the 2007 complaints
while Mr. Danner’s earlier suit was pending in the
Sixth Circuit. However, proceedings against Mr.
Danner were not closed with regard to those
complaints. Since the appellate decision came down in
the Board’s favor, the Board filed a Petition for
Discipline against Mr. Danner on July 21, 2008.
Il. LEGAL STANDARD
Younger held that a federal court should abstain
from enjoining certain pending criminal proceedings in
state courts. 401 U.S. at 44. The Younger abstention
doctrine has been extended to apply to ongoing state
civil, Huffman v. Pursue, Lid., 420 U.S. 592 (1975),
and administrative, Middlesex County Ethics
Commission v. Garden State Bar Association, 457 U.S.
421 (1982), proceedings. So extended, Younger
requires federal court abstention when three (3)
conditions are met: (1) the underlying proceedings
constitute an ongoing state judicial proceeding; (2)
which proceedings involve important state interests;
and (3) the underlying proceeding provides adequate
opportunity to raise constitutional challenges. Danner,
2008 WL 1987043 at *2; Loch v. Watkins, 337 F.3d
574, 578 (6th Cir. 2003). [f these three criteria are met,
the burden lies with the plaintiff to prove a Younger
exception, “such as bad faith, harassment, or flagrant
unconstitutionality.” Danner, 2008 WL 1987043 at *2
(quoting Fieger v. ‘Thomas, 74 F.3d 740, 750 (6th Cir.
1996)).
9a
Ill. ANALYSIS
The Sixth Circuit’s decision in Danner controls the
Court’s decision in this action.” In that case, the
appellate court found: (1) that disciplinary proceedings
by the Board constitute judicial proceedings (2) that
implicate important state interests, and (3) that in the
course of Board disciplinary proceedings and
subsequent review, attorneys such as Mr. Danner have
adequate opportunity to raise constitutional
challenges. 2008 WL 1987043 at *3-4.
The only question which Danner does not answer
with regard to this proceeding is whether there is an
ongoing proceeding by the Board against Mr. Danner.
The Court finds that there is. A state proceeding is
“ongoing” for purposes of Younger when it predates the
plaintiffs federal court filing. Danner, 2008 WL
1987043 at *3. Inthe present case, proceedings against
Mr. Danner relative to complaints filed against him in
2007 were not resolved at the time of filing in this
case. The Board withheld disciplinary action against
Mr. Danner while his earlier appeal was pending in
the Sixth Circuit, and has since issued a Petition for
Discipline against Mr. Danner that remains pending.
None of the Younger exceptions have been plead or
proven in this case.
“There was argument at the July 31, 2008 hearing on Plaintiff's
motion regarding whether or not the Board is immune from suit
under the Eleventh Amendment. Plaintiff has subsequently
submitted briefing on this issue. See (Doc. No. 13). For the reasons
discussed below, the Court determines it unnecessary to reach
this issue.
10a
Mr. Danner argued orally at the hearing on
Plaintiffs Motion that Younger ought not apply in this
case because, on the facts, Mr. Danner’s suit is an
exception to the Rooker-Feldman doctrine. The
Rooker-Feldman doctrine prohibits parties from
appealing adverse state court decisions in federal
district courts. D.C. Court of Appeals v. Feldman, 460
U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923). Rooker-Feldman and Younger are distinct
doctrines; that one may not apply in a given case has
no necessary bearing on the applicability of the other.
Mr. Danner made the same Rooker-Feldman argument
in his previous suit against the Board, and the Sixth
Circuit found it to be without merit. Danner, 2008 WL
1987043 at *5. As a result, Plaintiff presents no valid
reason that Younger should not apply in this case.
IV. CONCLUSION
For the foregoing reasons, the Court DISMISSES
without prejudice Plaintiffs Complaint under the
abstention doctrine of Younger v. Harris. Accordingly,
Plaintiffs Emergency Motion for Temporary
Restraining Order is DENIED as moot
It is so ORDERED.
Entered this 9" day of August, 2008.
/s/
JOHN T. NIXON, SENIOR JUDGE
UNITED STATES DISTRICT COURT
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 08-6075
[Filed July 29, 2009]
DAVID E. DANNER,
Plaintiff-Appellant,
be
BOARD OF PROFESSIONAL
RESPONSIBILITY OF THE TENNESSEE
SUPREME COURT, ET AL.
Defendants-Appellees.
ee ee ee a a
ORDER
BEFORE: GUY, GILMAN, and COOK, Circuit
Judges.
The court having received a petition for rehearing
en banc, and the petition having been circulated not
only to the original panel members but also to all other
active judges of this court, and no judge of this court
having requested a vote on the suggestion for
12a
rehearing en banc, the petition for rehearing has been
referred to the original panel.
The panel has further reviewed the petition for
rehearing and concludes that the issues raised in the
petition were fully considered upon the original
submission and decision of the case. Accordingly, the
petition is denied.
ENTERED BY ORDER OF THE COURT
/s/
Leonard Green
Clerk
13a
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
Case No. 3:08-0651
[Filed July 31, 2008]
DAVID E. DANNER, ESQ.,
Plaintiff,
Vs.
BOARD OF PROFESSIONAL
RESPONSIBILITY OF THE
TENNESSEE SUPREME
COURT, CHARLES A. HIGH,
Defendants.
Nee eee eee eee ee”
PLAINTIFF’S POST-HEARING BRIEF
Comes now the plaintiff, David E. Danncr, Esq.,
and submits his post-hearing brief concerning the oral
argument of Defendants at the Rule 65 hearing held
l4a
on July 31, 2008 which included an Eleventh
Amendment analysis (Answer 15, aff.def.).’
The Sixth Circuit’s Eleventh Amendment analysis
considers the primary issue of determining whether an
entity is a state department or agency for the purpose
of immunity as whether the state would ultimately be
liable for any money judgment. Dubuc v. Michigan Bd.
of Law Examiners, 342 F.3d 610, 615 (6 Cir. 2003)
(“To determine whether an entity is a_ state
department or agency for purpose of the Eleventh
Amendment, the primary issue is whether the state
would ultimately be liable for any money judgment
against the entity”) citing Brotherton v. Cleveland, 173
F.3d 552, 560-61 (6" Cir. 1999). Therefore, defendant
state agency can be sued in federal court,’ to wit:
Defendant Board of Professional Responsibility
of the Tennessee Supreme Court is a board
created by the Tennessee Supreme Court and is
thus an agency of the State of Tennessee
' Plaintiff requested in open court that Defendants be ordered to
provide a written response to Plaintiff's pre-hearing brief (DE#12).
* Pursuant to 28 U.S.C. § 1367 (Complaint 73), defendant state
agency can be sued in federal court for supplemental state claims
because a state agency is a person, pursuant to T.C.A. 4-5-102(9),
for the purpose of Plaintiffs claims under the Tennessce
Constitution (Complaint 922). Tennessee courts have not seen fit
to protect state citizens by establishing any cause of action for
monetary damages for any violation of the Tennessee constitution
by state officials. Lee v. Ladd, 834 S.W.2d 323, 324 (Tenn. Ct. App.
1992): Cline v. Rogers, 87 F.2 " 176, 179 (6"" Cir. 1996). However,
Tennessee courts have provided some equitable relief in some
constitutional matters. E.g. Doe v. Norris, 751 S.W.2d 834, 840,
842 (Tenn. 1988).
15a
employing persons who are employees of the
State of Tennessee, pursuant to T.C.A. 8-23-
207. Per Preamble 7 10, Rule 8 of the Tennessee
Supreme Court and Section 20, Rule 9 of the
Tennessee Supreme Court, the regulations of
defendant board state that (A) it is “largely self-
governing” and that (B) it is self-financed by
annual taxes on Tennessee lawyers. Defendant
Board can be sued in federal district court.
Defendant Board is administratively and
financially autonomous from the State of
Tennessee to a degree that a judgment against
it would not touch the Tennessee state treasury.
Defendant board possesses no immunity from
suit in federal court via the Eleventh
Amendment to the U.S. Constitution.
(Complaint 6; see also Answer 6).
Per Preamble {| 10, Rule & of the Tennessee Supreme
Court and Section 20, Rule 9 of the Tennessee Supreme
Court, the regulations of defendant board state that
(A) it is “largely self-governing” and that (B) it is self-
financed by annual taxes on Tennessee lawyers. This
is Tennessee state law. Section 20, Rule 9 of the
Tennessee Supreme Court.
The Dubuc panel of the Sixth Circuit found that the
parties to that case had submitted no_evidence
regarding whether the State of Michigan would have
been uitimately responsible for any money judgment
against the Board or the Bar in that case and thus a
determination was made in favor of Eleventh
Amendment immunity on other secondary factors, 342
F.3d at 615 (citing the Brotherton court as “declining
to decide whether these other factors are relevant to
the inquiry”), whereas a later Sixth Circuit panel
16a
found, citing Dubuc, that same said Board and Bar
were immune because they merely were arms of the
state of Michigan without said panel delving into any
state-treasury fact question. Lawrence v. Chabot, 182
Fed.Appx. 442, 450 (6 Cir. 2006). Based on the
“primary” analysis of the Dubuc panel, the state-
agency defendant herein can be sued in federal court
consistent with both its evidentiary admissions -
Section 20, Rule 9 of the Tennessee Supreme Court -
and the Eleventh Amendment, cf 342 F.3d at 615,
thereby serving to distinguish this Tennessee-state-
agency case from both the Chabot ruling, 182
Fed.Appx. at 450, and the Dubuc ruling specifically on
the Michigan state agency. 342 F.3d at 615.
Conclusion
Based on the above-stated reasons, the Court
should grant a temporary restraining order and/or
preliminary injunction to Plaintiff lawyer to enjoin
Defendants’ general, prospective operation of Section
4.3 against any Tennessee lawyer.
Respectfully submitted:
/s/ David Danner
David E. Danner, Esq.
P.O. Box 1307
Antioch, TN 37011-1307
615.596.5460
* * *
[Certificate of Service Omitted in
Printing of this Appendix]
17a
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
Case No. 3:08-0651
[Filed July 29, 2008]
DAVID E. DANNER, ESQ..,
Plaintiff,
VS.
BOARD OF PROFESSIONAL
RESPONSIBILITY OF THE
TENNESSEE SUPREME
COURT, CHARLES A. HIGH,
Defendants.
Nm eee ee eee Se”
PLAINTIFF’S PRE-HEARING BRIEF
Comes now the plaintiff, David E. Danner, Esq.,
and, submits his pre-hearing brief concerning the Rule
65 hearing set for July 31, 2008.
18a
Section 4.3 is unconstitutional because said state-
court rule is impermissibly vague on its face under the
overbreadth doctrine by failing to establish standards
that are sufficient to guard against the arbitrary
deprivation of constitutional rights. City of Chicago v.
Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67
(1999); see also Norfolk 302, LLC v. Vassar, 524
F.Supp.2d 728, 739-40 (E.D. Va. 2007). Section 4.3
permits a property right — a law license - to be
deprived without a _ predetermination hearing,
Zinermon v. Burch, 494 U.S. 113, 136-39, 110 S. Ct.
975, 108 L.Ed.2d 100, 120-22 (1990), and it provides no
protection to Tennessee lawyers against Defendants
engaging in countless repetitive inquiries to a lawyer
by using the specter of a Section 4.3 non-response
penalty despite a lawyer’s prior response(s) (Complaint
197113, 14; DE#9, Affid. of Spivey 17; Danner Dec. 15),
to wit:
On petition of the Disciplinary Counsel and
supported by an affidavit demonstrating facts
personally known to affiant, showing that an
attorney has misappropriated funds to the
attorney’s own use, has failed to respond to the
Board or Disciplinary Counsel concerning a
complaint of misconduct, has_ failed to
substantially comply with a contract entered
into with the Tennessee Lawyer Assistance
Program, or otherwise poses a threat of
substantial harm to the public, the Supreme
Court may issue an order with such notice as
the Court may prescribe imposing temporary
conditions of probation on said attorney or
temporarily suspending said attorney, or both.
.. (emphasis added)
19a
Section 4.3 of Rule 9 of the Tennessee Supreme
Court. Such cursory notice stated in the rules as “with
such notice as the Court may prescribe” is
unconstitutionally vague due process. Norfolk 302, 524
F Supp.2d at 739-40 (E.D. Va. 2007).
Therefore, Section 4.3 fails to comply with both the
state law and the federal law of due process, infra.
Due Process — State Law
Section 4.3 of Rule 9 of the Tennessee Supreme
Court is unconstitutional pursuant to state-standard
due process because said rule permits summary
suspension of the law license of a Tennessee lawyer
without the predetermination hearing required by the
Tennessee Administrative Procedures Act (TAPA),
T.C.A. 4-5-320(d)(1), which state statute applies to the
Board of Professional Responsibility of the Tennessee
Supreme Court because said board is a T.C.A. 8-23-207
“state agency” subject to TAPA, per T.C.A. 4-5-102(2),
and thus said board is not a “court” exempt from
TAPA, per T.C.A. 4-5-106(a).
First, the Tennessee General Assembly has defined
the Board of Professional Responsibility of the
Tennessee Supreme Court as a “state agency”
(Complaint 16; Answer 6), to wit:
[A]lny self-sustaining board, commission or
agency created by the supreme court of
Tennessee shall be deemed a state agency and
all employees of such boards, commissions or
agencies shall be deemed state employees and
shall be entitled to the same rights and benefits
20a
enjoyed by other state employees. (emphasis
added)
T.C.A. 8-23-207. Said code chapter defines “state
agency” as “any department, commission, board, office
or other agency of the executive, legislative or judicial
branch of state government (emphasis added).” T.C.A.
8-23-204(a)(1)(C). See State v. Thompson, 197 S.W.3d
685, 691 (Tenn. 2006)(holding that the phrase “state
agency” was operative to invoke TAPA provisions in
that case). Also, TAPA defines “agency” as “each state
board, commission, committee, department, officer, or
any other unit of state government authorized or
required by any statute or constitutional provision to
make rules or to determine contested cases (emphases
added).” T.C.A. 4-5-102(2). Moreover, the Board makes
rules pursuant to the inherent constitutional power of
the Tennessee Supreme Court. T.C.A. 4-5-102(2);
Section 5.5(f) of Rule 9 of the Tennessee Supreme
Court, infra (“lo adopt rules of procedure not
inconsistent with these rules [Rules 9]”); Belmont v.
Board of Law Examiners, 511 S.W.2d 461, 462 (Tenn.
1974)(holding that the state supreme court possesses
the inherent power to prescribe and administer rules
pertaining to the _ licensing and admission of
attorneys). Furthermore, Tennessee rules of statutory
construction permit plain-language phrases such as
“state agency” and/or “agency” to be defined and
reconciled between different sections of a legislative
code, Loftin v. Langdon, 813 S.W.2d 475, 487 (Tenn.
Ct. App. 1991), In re Lucas, 924 F.2d 597, 601 (6" Cir.
1991)(holding that a phrase in the bankruptcy-code
portion of the federal code can be defined by the
ERISA portion of said code), to wit:
2la
[I]t would be incongruous to give different
constructions to an identical phrase at various
sections of the code ... 924 F.2d at 601.
Second, TAPA excludes “courts” from its provisions,
T.C.A. 4-5-106(a), and the Tennessee constitution
creates one supreme “court” and authorizes other
inferior “courts” as the Tennessee Legislature — not the
Tennessee Supreme Court - may Establish. TENN.
Const. Art. VI, Sec. 1. Also,.the state constitutional
definition of “court” includes the adjudication of rights
between adversaries by a judge(s), to wit:
A court is an instrumentality of sovereignty, the
repository of its judicial power, with authority
to adjudge as to the rights of person or property
between adversaries. The presence of a judge or
judges is necessary as an essential element of a
court. (emphases added)
Mengel Box Co. v. Fowlkes, 186 S.W. 91, 92 (Tenn.
1916). Moreover, the creation of the Board of
Professional Responsibility by the Tennessee Supreme
Court - even if said state constitutional supreme court
were permitted to create a lower court by the
Tennessee Constitution - included no authority for the
Board to adjudicate rights between adversaries by
judges,’ Fowlkes supra, to wit:
' Board decisions are not judge decisions. See Mengel Box Co. v,
Fowlkes, 186S W 91,92(Tenn. 1916). Tennessee state judges are
not elected to the Board of Professional Responsibility of the
Tennessee Supreme Court by the “qualified voters” of the state or
of a district of the state as would be required by the ‘lennessee
Constitution (Complaint 410). TENN. Const. Art. VI, Sec. 3, Sec
4. The Tennessee Supreme Court actually appoints persons to
22a
The Board shall exercise the powers and
perform the duties conferred and imposed
upon it by these disciplinary rules,
including the power and duty:
(a) To consider and investigate any
alleged ground for discipline or
alleged incapacity of any attorney
called to its attention, and upon its
own motion, and to take such action
with respect thereto as shall be
appropriate to effectuate’ the
purposes of these disciplinary rules.
(b) To adopt written guidelines to
ensure the efficient and timely
resolution of complaints,
investigations, and formal
proceedings, which guidelines shall
be approved by the Court, and to
monitor Disciplinary Counsel’s and
the hearing panels’ continuing
compliance with those guidelines ...
(c) To assign members of the district
committees appointed within each
disciplinary district to conduct
disciplinary hearings and to review
and approve or modify
recommendations by Disciplinary
Counsel for dismissals or informal
admonitions.
serve on the twelve-member Board, pursuant to Section 5.1 of
Rule 9 of the Tennessee Supreme Court
23a
(d) To review, upon application by
Disciplinary Counsel, a
determination by the reviewing
member of a district committee that
a matter should be concluded by
dismissal or by private informal
admonition without the institution
of formal charges.
(e) Toprivately reprimand attorneys for
misconduct.
(f) To adopt rules of procedure not
inconsistent with these rules.
(g) The Board shall, to the extent it
deems feasible, consult with officers
of local bar associations concerning
any appointment it is authorized to
make under these rules.
Section 5.5 of Rule 9 of the Tennessee Supreme
Court. Furthermore, the Tennessee Supreme Court
possesses the exclusive separation-of-powers authority
to issue a Tennessee law license per the state
constitution. Belmont, 511 S.W.2d at 464. But, once so
issued, the Tennessee Supreme Court possesses no
carte blanche to summarily take a Tennessee law
license from a Tennessee lawyer which constitutes a
property right to the Tennessee lawyer per the federal
constitution. See e.g. In re Ming, 469 F.2d 1352, 1355
(7 Cir. 1972).
Therefore, the Board ts subject to TAPA because
the Board is not a state constitutional “court” pursuant
to T.C.A. 4-5-106(a) adjudicating, by voter-elected
24a
judges,* any rights or controversies between
adversarial individuals per Fowlkes, Section 5.5, and
TENN. CONST. Art. VI, Sec. 3, Sec. 4 supra - whereas
the Board is a “state agency” that makes rules per the
inherent constitutional authority of the state supreme
court pursuant to T.C.A. 4-5-102(2), Belmont, and
Section 5.5(f) supra - because the Tennessee Supreme
Court possesses no state constitutional authority to
create any inferior “court” in leu of the Tennessee
Legislature pursuant to the Tennessee Constitution.
TENN. CONST. Art. VI, Sec. 1. Thus, Section 4.3 of Rule
9 of the Tennessee Supreme Court is a vague,
impermissible administrative substitute for the
Board’s compulsory constitutional compliance with the
state predetermination or pre-deprivation duc process
requirements of T.C.A. 4-5-320(d)(1), including the
evidentiary-hearing finding prior to even a summary
suspension per T.C.A. 4-5-320(c)(“If the agency finds
that public health, safety, or welfare imperatively
requires emergency action, and incorporates a finding
to that effect in its order, summary suspension of a
license may be ordered pending proceedings for
revocation or other action. [emphases added]”).° T.C.A.
® TENN. CONST. Art. VI, Sec. 3, Sec. 4.
° Despite Defendants’ sending Plaintiff a 10-day notice prior to
summary suspension per Section 4.3 in order to respond to a
disciplinary complaint — which Plaintiffhad already responded to
— response (DE#9, Affid. of Spivey 77) such notice did not comply
with T.C.A. 4-5-320(c)(“No revocation, suspension, or withdrawal
of any license is lawful] unless, prior to the institution of agency
proceedings, the agency gave notice by mail to the licensee of facts
or conduct that warrant the intended action, and the licensee was
given an opportunity to show compliance with all lawful
requirements for the retention of the license.” [emphases added})
because (1) Defendants failed to comply with T.C.A. 4-5-320(d)(1),
25a
4-5-320(d)(2); see also Norfolk 302, LLC v. Vassar, 524
F Supp.2d 728, 739-40 (E.D. Va. 2007).
Due Process — Federal Law
Section 4.3 of Rule 9 of the Tennessee Supreme
Court is unconstitutional pursuant to federal-standard
due process because said rule permits summary
suspension of the law license of a Tennessee lawyer
without the predetermination hearing required by the
procedural due process clause of the Fourteenth
Amendment to the United States Constitution, to wit:
On petition of the Disciplinary Counsel and
supported by an affidavit demonstrating facts
personally known to affiant, showing that an
attorney has misappropriated funds to the
attorney’s own use, has failed to respond to the
Board or Disciplinary Counsel concerning a
complaint of misconduct, has failed to
substantially comply with a contract entered
into with the Tennessee Lawyer Assistance
Program, or otherwise poses a threat of
substantial harm to the public, the Supreme
Court may issue an order with such notice as
the Court may prescribe imposing temporary
conditions of probation on said attorney or
which references said subsection (c), (2) Defendants’ 10-day notice
would have preceded a summary suspension per fiat, rather than
the notice being an “institution” or commencement of agency
proceedings per process, such as a predetermination hearing per
T.C.A. 4-5-320(d)(1), and (3) Defendants were not engaged in
lawful activity by allegedly using the 10-day notice to unlawfully
threaten Plaintiff (Complaint 713).
26a
temporarily suspending said attorney, or both.
... (emphasis added)
Section 4.3, Rule 9 ofthe Tennessee Supreme Court.
Due process is a flexible concept that avoids a fixed
content unrelated to time, place and circumstance and
that calls for such procedural protections as the
particular situation demands. Mathews v. Eldridge,
424 U.S. 319, 334, 96 S. Ct. 893, 47 L.Ed.2d 18, 33
(1976) quoting Cafeteria Workers v. McElroy, 367 U.S.
886, 895, 81 S Ct. 1743, 6 L.Ed.2d 1230 (1961),
Morrissey v. Brewer, 408 U.S. 471, 481, 92S. Ct. 2593,
33 L.Ed.2d 484 (1972). The specific dictate of due
process cases “generally requires consideration of three
distinct factors: first, the private interest that will be
affected by the official action; second, the risk of an
erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and
finally, the Government’s interest, including the
function involved and the fiscal and administrative
burdens that the additional! or substitute procedural
requirement would entail.” Mathews, 424 US. at 335
citing Goldberg v. Kelly, 397 U.S. 254, 263-271, 90 S.
Ct. 1011, 25 L.Ed2d 287 (1970). 7
In the “particular situation” herein, procedural due
process specifically requires an evidentiary hearing
before summary suspension of law licensure is
implemented pursuant to Section 4.3. Zinermon_v.
Burch, 494 U.S. 113, 136-39, 110 S. Ct. 975, 108
L.Ed.2d 100, 120-22 (1990). First, it is not
unforeseeable that a Tennessee lawyer could be
suspended under said rule. Id. at 136. Second, it is not
impossible for the Board to hold a pre-deprivation
evidentiary hearing before Section 4.3 suspension is
27a
implemented because the Board makes provisicn for a
post-deprivation hearing in the same Section 4.3.* Id.
at 136-137. Third, Defendants are delegated, assigned,
or granted power by the state high court via Rule 9
which gravitates against the random, unauthorized
deprivation of constitutionally protected interests that
would justify the government being relieved of any
predetermination evidentiary hearing. Id. at 138, 115,
* It is acurious phenomenon concerning equal protection analysis
that a Tennessee lawyer can be suspended by a Section 4.3
petition filed by Disciplinary Counsel without prior service of a
copy of such petition on the lawyer but a Tennessee lawyer must
serve on the prosecuting Disciplinary Counsel a request for
dissolution or amendment of said suspension, and the lawyer
must also have “good cause” for the request, to wit:
On petition of the Disciplinary Counsel and supported by
an affidavit demonstrating facts personally known to
affiant, showing that an attorney has misappropriated
funds to the attorney’s own use, has failed to respond to
the Board or Disciplinary Counsel concerning a complaint
of misconduct, has failed to substantially comply with a
contract entered into with the ‘Tennessee Lawyer
Assistance Program, or otherwise poses a threat of
substantial harm to the public, the Supreme Court may
issue an order with such notice as the Court may
prescribe imposing temporary conditions of probation on
said attorney or temporarily suspending said attorney, or
both. ...
The attorney may for good cause request dissolution or
amendment of any such temporary order by petition filed
with the [Tennessee] Supreme Court, a copy of which will
be served on the Disciplinary counse}. Such petition for
dissolution shall be set for immediate hearing before the
Board of Professional Responsibility ...
Section 4.3, Rule 9 of the Tennessee Supreme Court.
28a
129-130 citing Parratt v. Taylor, 451 U.S. 527, 101 S.
Ct. 1908, 68 L.Ed.2d 420 (1981), Hudson v. Palmer,
468 U.S. 517, 104 S. Ct. 3194, 82 L.Ed.2d 393 (1984).
Therefore, Section 4.3 violates the Fourteenth
Amendment to the U.S. Constitution because the
general principles of due _ process. dictate
predetermination-hearing due _ process herein.
Zinermon, 494 U.S. at 136-39.
Conclusion
Based on the above-stated reasons, the Court
should grant a temporary restraining order and/or
preliminary injunction to Plaintiff lawyer to enjoin
Defendants’ general, prospective operation of Section
4.3 against any Tennessee lawyer.
Respectfully submitted:
/s/ David Danner
David E. Danner, Esq.
P.O. Box 1307
Antioch, TN 37011-1307
615.596.5460
He se oh
[Certificate of Service Omitted tn
Printing of this Appendix]
29a
APPENDIX F
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF
TENNESSEE AT NASHVILLE
Case No. 3:08-0651
[Filed July 22, 2008]
DAVID E. DANNER, ESQ.,
Plaintiff,
VS.
BOARD OF PROFESSIONAL
RESPONSIBILITY OF THE
TENNESSEE SUPREME
COURT, CHARLES A. HIGH,
Defendants.
Nee Nee eee eee‘
EMERGENCY MOTION FOR TEMPORARY
RESTRAINING ORDER
Comes now the plaintiff, David E. Danner, Esq.,
and, pursuant to FRCP 65(b), moves the court for a
temporary restraining order for ten (10) days and a
preliminary injunction until trial - for expedited
30a
consideration - with any reasonable bond set by the
Court per FRCP 65(c); due to the impending,
imminent, retaliatory operation of Section 4.3 of Rule
9 of the Tennessee Supreme Court or other regulation
to unlawfully, unilaterally, and/or summarily suspend
Plaintiff lawyer’s license to practice law without a pre-
deprivation hearing being afforded to movant
Tennessee lawyer by the State - despite Plaintiff
lawyer's multiple responses to ethics inquiries - via
pretext of disciplinary action against a Tennessee
lawyer.
For grounds, such retaliation for Plaintiff's exercise
of free speech against the Tennessee Plan and/or prior
grievances or access to courts would violate the First
Amendment to the U.S. Constitution.
Movant requests that the Court issue a preliminary
injunction to:
(1) enjoin immediately the Defendants’ operation of
Section 4.3 of Rule 9 of the Tennessee Supreme Court
against any Tennessee lawyer during the pendency of
this case;
(2) enjoin immediately the Tennessee Supreme
Court or Defendants from any suspension of any law
licensure pursuant to Section 4.3 of Rule 9 of the
Tennessee Supreme Court; and/or
(3) enjoin immediately any imminent action or
proceeding of Defendants deemed to be retaliatory
against Plaintiff.
3la
Respectfully submitted:
/s/ David Danner
David E. Danner, Esq.
P.O. Box 1307
Antioch, TN 37011-1307
615.596.5460
* *K *K
[Certificate of Service Omitted in
Printing of this Appendix}
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