Disciplinary Action Against Graham, In re, C3-88-1760
| Decision Date | 23 March 1990 |
| Docket Number | No. C3-88-1760,C3-88-1760 |
| Citation | 453 N.W.2d 313 |
| Parties | In re Petition for DISCIPLINARY ACTION AGAINST John Remington GRAHAM, an Attorney at Law of the State of Minnesota. |
| Court | Minnesota Supreme Court |
William J. Wernz, Director of Office of Lawyers' Professional Responsibility Bd., St. Paul, for appellant.
John Remington Graham, Quebec, Canada, pro se.
This matter comes before us on petition from the Director of the Lawyers Professional Responsibility Board for disciplinary action against John Remington Graham, respondent. The Director charged Graham with violating Rules 3.1, 8.2(a), and 8.4(d), Minnesota Rules of Professional Conduct, by making false statements regarding the integrity of a judge, a magistrate, a legal officer and a lawyer without basis in fact and with reckless disregard for the truth or falsity of the statements.
The statements accused Minnesota District Court Judge John Spellacy, United States Magistrate Patrick J. McNulty, Crow Wing County Attorney Stephen Rathke and Rathke's attorney, Michael Milligan, and others of a conspiracy fixing the outcome in the federal case of Shockman v. Rathke, No. CV-5-87-260 (D.Minn. Dec. 21, 1988). The statements appeared in an unsworn letter to United States Attorney Jerome Arnold, in a sworn complaint to Chief Judge Lay of the Eighth Circuit Court of Appeals alleging judicial misconduct against Judge McNulty, and in an affidavit in support of a motion to recuse Judge McNulty from considering whether attorney fees should be awarded against Graham in the Shockman v. Rathke case.
A hearing on the Director's petition was held in Little Falls, Minnesota on December 13-15, 1988, before the Honorable Paul Hoffman acting as referee. He made his findings of fact and conclusions of law on February 21, 1989. Graham's counsel received the referee's report on February 24, 1989 and immediately contacted Graham in Quebec, Canada to discuss it. Based on discussion of the referee's report with his counsel, Graham decided to settle. Settlement negotiations broke down, however. Graham now disputes the referee's factual findings and conclusions and has moved for permission to order a transcript.
Review of this disciplinary action is limited by Rule 14(e), Rules on Lawyers Professional Responsibility ("RLPR") (1989 Supp.), which provides in part:
The referee shall make findings of fact, conclusions, and recommendations, file them with this Court, and notify the respondent and Director of them. Unless the respondent or Director, within ten days, orders a transcript and so notifies this Court, the findings of fact and conclusions shall be conclusive.
Graham argues that Rule 14(e) requires service of the findings and conclusions directly on him as respondent even though he was represented by counsel. Rule 14(e) does state that the respondent is to be notified. Rule 1, RLPR, defines "notify" as meaning "to give personal notice or to mail to the person at his last known address or the address maintained on this Court's attorney registration records." No express provision of the RLPR states that the respondent must be personally served with notice, however. RLPR 14(b) does state that the referee hearing "shall be conducted in accordance with the rules of civil procedure applicable to district courts." Minnesota civil procedure rules require service of represented parties to be on the attorney. Minn.R.Civ.Proc. 5.02 and Minn.R.Civ.App.Proc. 125.03. Because notification of the findings and conclusions of the referee flow from the hearing proceeding itself, we hold that the civil procedure rules also apply to Rule 14(e). Thus, notification to Graham's attorney constituted notification to respondent Graham under Rule 14(e) and definitional Rule 1.
Graham's attorney did receive notice of the findings and conclusions on February 24, 1988 and immediately contacted Graham by telephone to discuss them. Graham thereby also had actual notice. He decided to settle based on that information. In fact, he was willing to rely on that information to such an extent that he returned a signed version of the stipulation without ever having received a copy of the referee's report and even though he thought the report was "far from the truth." Director's Response to Motion at 2. In short, from both a technical and equitable point of view, Graham received notice as required by Rule 14(e). As he did not order a transcript within the requisite period, the findings of fact and conclusions made by the referee are conclusive. 1 See Application of Hetland, 275 N.W.2d 582, 583, 583 n. 5 (Minn.1978).
In addition to his motion for permission to order a transcript, Graham moved for the removal of Director Wernz and his assistant from this matter and for the removal of Director Wernz from office.
The issue of whether Wernz should be removed from Graham's disciplinary hearing was considered at the disciplinary hearing itself. Finding 50 found no grounds for removal. We have reviewed the record and concur. Moreover, under the review standard of Rule 14(e), that finding is conclusive. Consequently, we deny his motion.
The motion to remove Wernz's senior assistant is summarily denied. Graham himself states in his motion: "I do not believe [Wernz's] assistant has done anything questionable * * *." That being the case, no reason appears to remove her.
Graham also filed a petition with this court for removal of Wernz from office. We find no merit to his motion and therefore deny it.
Having disposed of Graham's motions, we turn to the substance of this disciplinary hearing. The referee's factual findings were comprehensive and may be summarized as follows:
Graham has been a licensed Minnesota attorney since 1967. He practiced in Brainerd, Minnesota from 1981 until August 1988, when he moved to Quebec, Canada. While practicing in Brainerd, substantial personal and political ill-will arose between Stephen Rathke, Crow Wing County Attorney, and him. The animosity continued throughout the period covered by this matter.
Graham's statements against Rathke, Spellacy, McNulty and Milligan, which led to this suit for disciplinary action, followed the Shockman v. Rathke decision that denied issuance of an injunction against prosecution of Michael Shockman. The background of that case forms the basis for Graham's accusations and this disciplinary matter.
On September 21, 1987, Michael Shockman struck his seven-year-old son on the face causing facial bruises. The son's school reported the bruises. Brainerd city police removed the boy from school and placed him in protective custody on September 25, 1987. The Shockmans retained Graham on September 26, 1987 to help them regain their son. The son was returned to the family on September 28, 1987.
On October 1, 1987, subsequent to the child's return, Graham wrote to a member of the Crow Wing County Board complaining about the handling of several custody and child protection cases, including that of the Shockmans. He did not refer to the Shockmans by name. He criticized Rathke in particular, but not in connection with handling the Shockman case. The letter caused heated debate at the county board meeting held on October 6, 1987.
On October 9, 1987, an assistant Crow Wing County attorney, with the agreement of Rathke, signed a fifth degree assault charge against Shockman for striking his son. Graham, as the Shockmans' attorney, filed a federal court complaint on October 21, 1987 seeking to enjoin the assault prosecution on the grounds that Rathke had commenced it in retaliation for Graham's letter to the county board.
In response, Rathke requested district court judge John Spellacy to convene a grand jury to consider whether to indict Michael Shockman for assault and to inquire into the process which gave rise to the criminal complaint against Shockman. A grand jury was convened in the Shockman matter, and a special prosecutor unconnected with Rathke was appointed. The grand jury returned an indictment against Michael Shockman. During this period, Judge Spellacy had remarked to Graham that Graham's comments in his October 1, 1987 letter might constitute criminal defamation. No charge or indictment was made as to possible defamation by Graham, but Graham took Spellacy's comment to mean the grand jury had really been convened to indict him for criminal defamation.
On December 9, 1987, Rathke, Rathke's attorney Michael Milligan, and Graham met with Magistrate Patrick J. McNulty in Duluth on Graham's motion for a temporary injunction in the Shockman case. They decided to hold an expedited trial in January on the suit for permanent injunction. The referee found that the proceedings and results of this December 9 hearing did not support Graham's later assertion that at that hearing
[t]he judge had indicated preliminary approval of the suit. The evidence seemed reasonable. The law ... seemed reasonable.... [McNulty] suggested clearly enough that the matter might have real merit.... [and] clearly enough hinted he was going to give my clients ... relief pendente lite.
In re Graham, No. C3-88-1760, Finding of Fact 20 (Feb. 21, 1989) (hereinafter "Order"). Graham filed an amended complaint following the December 9 hearing. Milligan answered on Rathke's behalf alleging violation of Rule 11 of Minnesota Rules of Civil Procedure and Minn.Stat. Sec. 549.21 (1988) and asserting rights to attorney fees, costs and disbursements.
The expedited trial seeking an injunction was held January 4-6, 1988. McNulty found for defendant Rathke. Milligan moved for award of attorney fees. His argument in support of the motion described Graham as the real party in interest who brought the suit only in order to harass and embarrass Rathke. The referee found Milligan's written...
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Westfall, Matter of, No. 72022
...directly addressed the question and concluded that an objective rather than subjective standard should be used. In re Disciplinary Action Against Graham, 453 N.W.2d 313 (Minn.), cert. denied sub nom. Graham v. Wernz, 498 U.S. 820, 111 S.Ct. 67, 112 L.Ed.2d 41 (1990). See also Louisiana Stat......
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...Eberhart, 267 Conn. 667, 841 A.2d 217 (2004) 7-9:2 In re Flanagan, 240 Conn. 157, cert. denied, 522 U.S. 865 (1997) 4-3:2 In re Graham, 453 N.W.2d 313 (Minn.1990) 4-1 In re Grand Jury Investigation, 399 F.3d 527 (2d Cir. 2005) 1-7:1.3 In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 2000......
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...In re Terry, 271 Ind. 499, 394 N.E.2d 94, 95-96 (1979); Louisiana State Bar Ass'n v. Karst, 428 So. 2d 406, 409 (La. 1983); In re Graham, 453 N.W.2d 313, 321-22 (Minn.1990); In re Westfall, 808 S.W.2d 829, 837 (Mo.1991); In re Holtzman, 78 N.Y.2d 184, 573 N.Y.S.2d 39, 43, 577 N.E.2d 30, 34 ......