Berry v. Schmitt, s. 11–5456

Citation40 Media L. Rep. 2113,688 F.3d 290
Decision Date27 July 2012
Docket Number11–5515.,Nos. 11–5456,s. 11–5456
PartiesJohn M. BERRY, Jr., Plaintiff–Appellant/Cross–Appellee, v. Michael J. SCHMITT, in his official capacity as Chair of the Kentucky Bar Association Inquiry Commission, Defendant–Appellee/Cross–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)


ARGUED: William E. Sharp, American Civil Liberties Union of Kentucky, Louisville,Kentucky, for Appellant/Cross–Appellee. Mark R. Overstreet, Stites & Harbison, PLLC, Frankfort, Kentucky, for Appellee/Cross–Appellant. ON BRIEF: William E. Sharp, American Civil Liberties Union of Kentucky, Louisville, Kentucky, David B. Tachau, Katherine E. McKune, Tachau Meek PLC, Louisville, Kentucky, for Appellant/Cross–Appellee. Mark R. Overstreet, Stites & Harbison, PLLC, Frankfort, Kentucky, Bethany A. Breetz, Stites & Harbison, Louisville, Kentucky, for Appellee/Cross–Appellant. J. Joshua Wheeler, The Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, Virginia, for Amicus Curiae.

Before: DAUGHTREY and ROGERS, Circuit Judges; ZOUHARY, District Judge.*

ROGERS, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. ZOUHARY, D.J. (pp. 305–06), delivered a separate concurring opinion.


ROGERS, Circuit Judge.

The balance between an attorney's right to free political speech and a state's right to regulate attorney conduct is delicate. States often successfully navigate the tension between these competing interests, permitting open critique while protecting the viability and vitality of judicial institutions. One of the ways that states do this is through ethical rules that prohibit attorneys from making false or reckless statements about judicial officers. Sometimes, however, the balance is upset and the state applies its rules in a way that impinges upon the free interchange of ideas that is vital to self-government. This is especially problematic when the speech is made by attorneys, who are often the citizens best situated to criticize government abuse.

This First Amendment case arose when the Kentucky Bar Association (KBA) issued a written warning against an attorney for criticizing a quasi-judicial state legislative ethics commission. John Berry, an attorney, attended a public session of the Kentucky Legislative Ethics Commission regarding alleged fund-raising violations by Senate President David Williams. Berry was unhappy with how the session was conducted—the Commission closed the session to the public but allowed Williams to remain—and Berry drafted a letter expressing his displeasure. The letter stated that the Commission's procedures could cause the public to think that the “deck was stacked.” The Commission complained of the letter to the Kentucky Bar Association's Inquiry Commission. After investigating the matter, the Inquiry Commission issued a letter warning Berry that his conduct violated Kentucky Rule of Professional Conduct 8.2(a), and advising him to refrain from similar conduct in the future. After exhausting his state remedies, Berry brought this First Amendment challenge to Rule 8.2(a). The district court granted summary judgment for the KBA. This decision was improper because Rule 8.2(a) is unconstitutional as applied to Berry's speech.


In 2007, the Kentucky Legislative Ethics Commission received a complaint regarding the fund-raising of Kentucky Senate President David Williams. The Commission conducted a hearing regarding the allegations, which Berry attended. At the hearing, the Commission called an executive session and excluded the media, Berry, and other members of the public during its inquiry into the allegations, but allowed Williams to be present. After hearing the evidence, the Commission issued an order dismissing the complaint against Williams.

On October 5, 2007, Berry wrote a letter to the Commission criticizing the Commission's disposition of the Williams matter:

The inquiry was conducted entirely behind closed doors with the exception of Senator Williams who was allowed to be present throughout the preliminary inquiry. The exclusion of the pub[l]ic and the media was enough to arouse suspicion, but the exclusion of the complainant (except for a brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave cause for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, but I do believe that your Order ... that exonerated him, was contrary to the undisputed evidence that was presented.

Berry disseminated copies of his letter to the Commission, members of the public, and the media.

In November 2007, the Inquiry Commission of the Kentucky Bar Association began investigating whether Berry's letter violated the Kentucky Rules of Professional Conduct. The Inquiry Commission focused on Rule of Professional Conduct 8.2(a), which provides that [a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer.” Ky. Sup.Ct. R. 3.130(8.2(a)). Berry denied any violation.

Following a lengthy investigation, the Inquiry Commission issued a warning letter asserting that Berry's conduct violated Rule 8.2(a) “by publicly implying that the Legislative Ethics Commission did not conduct its review appropriately.” The letter continued:

The Inquiry Commission voted to issue this warning letter, in connection with its Order of Dismissal, as provided by SCR 3.185, in lieu of either a Private Admonition or a Charge. This letter is to advise you in the future to conform your conduct to the requirements of the Rules of Professional Conduct.

Pursuant to SCR 3.185, the issuance of this warning letter does not constitute a record of formal discipline. The file will be destroyed after one (1) year.

The disciplinary complaint against Berry was dismissed. Berry did not appeal because Kentucky does not provide for an appeal of the Inquiry Commission's findings.

Berry filed this action in November 2009, alleging that he wished to engage in further criticism of the Commission's investigation of David Williams. Berry alleged, however, that he has refrained from such speech because he now fears professional discipline. Berry contended that the warning letter contained threats of enforcement that deprived him of his First and Fourteenth Amendment rights. He asked the district court to declare that Rule 8.2(a) is unconstitutional, facially and as applied. Berry also requested injunctive relief preventing the KBA from enforcing the rule against him “for any future distribution of his October 5, 2007 letter” or “future speech [that is] substantially similar.”

The district court granted the KBA's motion for summary judgment. The district court held that the Rooker–Feldman doctrine barred Berry's as-appliedchallenge. Berry v. Schmitt, No. 03:09–60–DCR, 2011 WL 1376280, at *2–4 (E.D.Ky. April 12, 2011). Turning to the facial challenge, the district court held that Berry had standing and that his claims were ripe, but that Rule 8.2(a) did not reach a substantial amount of protected speech. Id. at *7–8. Berry filed this timely appeal and the KBA filed a cross-appeal challenging Berry's standing.1

A. Article III Standing

The district court properly determined that Berry had standing to pursue his pre-enforcement challenge to Rule 8.2(a) because he alleged an injury in fact. Where a plaintiff alleges that state action has chilled his speech, “it is not necessary that [he] first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). However, a plaintiff must still satisfy the injury-in-fact requirement by showing: (1) “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute and (2) “a credible threat of prosecution thereunder.” Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). Berry has met both requirements.

Berry alleges that his intended conduct is “affected with a constitutional interest” and yet is proscribed by the KBA rules. Berry “remains dissatisfied with the [Commission]'s resolution of the inquiry into Senate President David Williams's fundraising activities in 2007 and “wishes to distribute his October 5 letter as a means of expressing his disagreement with (and opposition to) the manner in which the [Commission] conducted its inquiry and the decision it reached.” The parties appear to agree that Berry has a constitutional interest in such political speech.

There is little question that Rule 8.2(a), as construed by the KBA in its letter, proscribes Berry's intended conduct. Berry alleges that he intends to engage in speech identical—or substantially similar—to the speech contained in his October 5 letter. The KBA's warning letter “unequivocally stated that,” by circulating the October 5 letter, “Berry had violated the rule and essentially cautioned him not to let it happen again.” Berry, 2011 WL 1376280, at *5. It takes no great leap of logic to deduce that if Berry engages in speech identical or substantially similar to that contained in the October 5 letter, such conduct similarly would violate Rule 8.2(a) regardless of whether he is punished for such conduct.

Moreover, Berry has shown a credible threat of enforcement. This court's reasoning in Morrison v. Board of Education of Boyd County, 521 F.3d 602 (6th Cir.2008), is instructive. In Morrison, a high school student allegedly refrained from expressing his anti-homosexual beliefs because he feared punishment under his school's anti-bullying policy. Id. at 607. We held that ...

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