Deters v. Ky. Bar Ass'n, Civil No. 15–1–GFVT

• Decision Date: 14 September 2015
• Docket Number: Civil No. 15–1–GFVT
• Citation: 130 F.Supp.3d 1038
• Parties: Eric C. Deters, Plaintiff, v. Kentucky Bar Association, Linda Gosnell, Jay Garrett, Sarah Coker, Thomas Glover, and Steve Pulliam, Defendants
• Court: U.S. District Court — Eastern District of Kentucky

130 F.Supp.3d 1038

Eric C. Deters, Plaintiff,

v.Kentucky Bar Association, Linda Gosnell, Jay Garrett, Sarah Coker, Thomas Glover, and Steve Pulliam, Defendants

Civil No. 15–1–GFVT

United States District Court, E.D. Kentucky, Central Division. Frankfort.

Signed September 14, 2015

Eric C. Deters, Independence, KY, pro se.

Bethany A. Breetz, Zachary Myers Vanvactor, Stites & Harbison, PLLC, Louisville, KY, Mark R. Overstreet, Stites & Harbison, PLLC, Frankfort, KY, for Defendants.

MEMORANDUM OPINION & ORDER

Gregory F. Van Tatenhove

, United States District Judge

Eric C. Deters is an attorney in Kentucky who has had a long and contentious relationship with the Kentucky Bar Association (KBA). At the time his complaint was filed, he claimed that "at least 67 Bar Complaints" had been filed against him during his legal career and that he had "defeated" 61 of them. [R. 1 at ¶ 119.] With this number of complaints, it is no surprise that Deters has had his fair share of interaction with the Office of Bar Counsel. Often, Deters' dealings with the KBA have resulted in litigation, both in State and Federal Courts.¹ In past suits, Deters has challenged the constitutionality of many of the rules that he seeks to have reviewed herein, but he has never had these issues resolved in his favor. He has filed three federal suits challenging various KBA rules. See Deters v. Davis (Deters I ), No. 3:11–cv–02, 2011 WL 2417055 (E.D.Ky. June 13, 2011)

; Deters v. Ky. Bar Ass'n (Deters II ), No. 3:11–cv–26, 2011 WL 5837172 (E.D.Ky. Nov. 21, 2011) ; Deters v. Ky. Bar Ass'n, 1:14–cv–192 (S.D.Ohio 2014.) He voluntarily dismissed two and one was dismissed by this Court, with the decision subsequently affirmed by the Sixth Circuit. See Deters v. Ky. Bar Ass'n, No. 11–6524 (6th Cir. Dec. 10, 2012). He has also filed two actions in state court, one of which was voluntarily dismissed and another which was declared moot. See Ky. Bar Ass'n v. Deters (Deters 2012 ), 360 S.W.3d 224 (Ky.2012) ; Ky. Bar Ass'n v. Deters (Deters 2013 ), 406 S.W.3d 812, 822 (Ky.2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 965, 187 L.Ed.2d 787 (2014). With all this experience in hand, Deters now sues the KBA and many of its current and former employees, for compensatory, injunctive, and declaratory relief. For the reasons stated herein, the Court will GRANT the Defendants' Motion to Dismiss, and DENY Deters' Motion for Preliminary Injunction.

I

A

On January 5, 2015, Deters filed a combined complaint and brief with this Court, wherein he seeks "Declaratory, Compensatory and Injunctive Relief, Costs and Attorney Fees for Constitutional Violation[s] and a Trial by Jury on the 42 U.S.C. § 1983

Claim." [R. 1.] Contemporaneously, he moved for a temporary restraining order and preliminary injunction wherein he asks for the Court to enjoin the Defendants from exercising their powers to object under SCR 3.410(2)

, including a stay against it being enforced against Deters. [R. 3.] The Court promptly held a telephonic status conference, at which time it became apparent that a temporary restraining order was inappropriate, and so the Court set a briefing and hearing schedule on the motion for preliminary injunction and other dispositive motions. [R. 10.]

Deters' combined complaint and brief is 63 pages long, often repetitive, and short on legal analysis. Amidst this voluminous filing, Deters requests the following relief:

1. Deters requests a declaratory judgment SCR 3.510(2)

is unconstitutional and for immediate injunctive relief on his Motion and this Verified Complaint. This is the only claim on which Deters seeks injunctive relief.

2. For declaratory judgment SCR 3.480 is unconstitutional and Deters be allowed to retire whenever he wants.

3. For declaratory judgment SCR 3. 160(4) be found unconstitutional and Bar Counsel not have absolute immunity.

4. For declaratory judgment, reciprocal discipline between Kentucky and Ohio be considered unconstitutional.

5. The entire structure of Kentucky bar discipline be found unconstitutional from the fact Bar Counsel is employed by the KBA who hears and decides discipline prosecuted by Bar Counsel and there are ex parte communications between and among Defendants and the Board of Governors.

6. For all compensatory damages to which Deters is entitled and for an amount exceeding the jurisdiction of this Court under 42 U.S.C. § 1983.

7. For all costs, attorney fees and other relief to which is entitled and a trial by jury.

[R. 1 at 62 (emphasis in original).]

As noted in his motion for a preliminary injunction and again in his complaint, Deters seeks injunctive relief only as to the application of Supreme Court Rule 3.510(2)

—a provision detailing the procedures surrounding an attorney's reinstatement to practice law following a suspension:

(2) If the period of suspension has prevailed for 180 days or less, the suspension shall expire by its own terms upon the filing with the Clerk and Bar Counsel of an affidavit of compliance with the terms of the suspension, which must include a certification from the CLE Commission that the Applicant has complied with SCR 3.685

. The Registrar of the Association will make an appropriate entry in the records of the Association reflecting that the member has been reinstated; provided, however, that such suspension shall not expire by its own terms if, not later than 10 days preceding the time the suspension would expire, Bar Counsel files with the Inquiry Commission an opposition to the termination of suspension wherein Bar Counsel details such information as may exist to indicate that the member does not, at that time, possess sufficient professional capabilities and qualifications properly to serve the public as an active practitioner or is not of good moral character. A copy of such objection shall be provided to the Character and Fitness Committee, to the member concerned, and to the Registrar. If such an objection has been filed by Bar Counsel, and is not withdrawn within 30 days, the Character and Fitness Committee shall conduct proceedings under

SCR 2.300

. In cases where a suspension has prevailed for 180 days or less and the reinstatement application is referred to the Character and Fitness Committee, a fee of $1500.00 shall be made payable to the Kentucky Office of Bar Admissions.

SCR 3.510(2)

(emphasis added). Deters contends the present suit is "filed for the purpose of obtaining the reinstatement of Deters to his Kentucky practice upon a finding SCR 3.510(2) is unconstitutional." [R. 1 at 2.]

Soon after Deters filed his motion for a preliminary injunction, the Defendants filed a motion to dismiss. [R. 14.] Both motions have been fully briefed and earlier this year the Court heard argument. [R. 17.] Since the January hearing, Deters has attempted to contact the Court on countless occasions. Impatient, Deters filed a writ of mandamus with the Sixth Circuit. While the Court takes Deters' request for a preliminary injunction seriously, and has attempted to sort though what are sometimes muddled legal arguments in an expedient fashion, it is important to note, as Deters has conceded, that this matter became ripe in both 2012 and 2013, and yet Deters waited until 2015 to file this action. [See R. 1 at ¶ 65.]

B

Deters is an attorney licensed to practice law in the Commonwealth of Kentucky, where he has been so licensed since 1987. [R. 1 at ¶ 1.] Deters has also held licenses in Florida and Ohio since 1988. [Id. at ¶¶ 2–3.]

For the most part, the actions complained of began in 2012. On February 24 of that year, the Kentucky Supreme Court suspended Deters for 61 days and ordered him to complete remedial ethics training. [R. 1 at ¶ 24; R. 14–1 at 11]; see Deters 2012, 360 S.W.3d at 235

. The suspension was based on a finding that Deters was guilty of four charges of misconduct occurring primarily in 2007 and 2008. [R. 1 at ¶ 24; R. 1–4 at 3.]

On March 7, only a couple weeks into his suspension, Bar Counsel objected to Deters' automatic reinstatement pursuant to Supreme Court Rule 3.510(2)

. [Id. at ¶ 25.] As a result of Bar Counsel's objection to reinstatement, Deters explains that he had to apply for reinstatement, and attend a hearing before the Character and Fitness Committee. [Id. at ¶¶ 26, 28.]

On April 23, Deters filed a "Verified Petition and Request for Injunctive Relief" with the Kentucky Supreme Court, challenging the constitutionality of SCR 3.510(2)

. [R. 1 at ¶ 19.] On May 23, the Character and Fitness Committee voted 3–0 to recommend that Deters be reinstated after he completed a few delineated conditions. [R. 1 at ¶ 28; R. 1–4.] The Board of Governors voted 13–0 not to reinstate Deters, and finally, on June 15, the Kentucky Supreme Court voted 7–0 to reinstate Deters. [R. 1 at ¶ 28; R. 1–5 (Deters v. Kentucky Bar Ass'n, 408 S.W.3d 71 (Ky.2012) ).] In so doing, the Supreme Court denied Deters Verified Petition as moot. [R. 1 at ¶ 42.] Deters argues that the process for reinstatement outlined in Supreme Court Rule 3.510(2)"vitiates and renders meaningless the due process received in the disciplinary process leading up to and culminating in the Kentucky Supreme Court Order." [R. 1 at ¶ 21.] Deters further argues that because he had to participate in this reinstatement process, he was unable to practice law in the Commonwealth for 52 days beyond his original 61 day suspension. [Id. at ¶¶ 26, 29.] Discussed more herein, this additional 52 days of suspension was addressed by the Kentucky Supreme Court in Deters 2013, 406 S.W.3d 812 (Ky.2013).

On May 23, 2013, the Kentucky Supreme Court again suspended Deters for violating the Rules of Professional Conduct. Deters 2013, 406 S.W.3d at 814

, reconsideration denied (Aug. 29, 2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 965, 187 L.Ed.2d 787 (2014). On October 23, just as had happened with regard to his first suspension, Bar Counsel again objected to Deters' automatic reinstatement. [R. 1 at ¶ 32; R. 1–20.] As grounds for the objection, Bar Counsel indicated that Deters did not ...