Doe v. Supreme Court of Ky.
| Decision Date | 28 August 2020 |
| Docket Number | CIVIL ACTION NO. 3:19-CV-236-JRW |
| Citation | 482 F.Supp.3d 571 |
| Parties | Jane DOE, Plaintiff v. SUPREME COURT OF KENTUCKY, et al., Defendants |
| Court | U.S. District Court — Western District of Kentucky |
Michele Henry, Tyler A. Larson, Craig Henry PLC, Britt Stevenson, Louisville, KY, for Plaintiff.
Brett R. Nolan, Office of the Governor, Carmine G. Iaccarino, Sarah E. E. Adkins, Kentucky Attorney General, Frankfort, KY, for Defendant Supreme Court of Kentucky.
Bethany A. Breetz, Stites & Harbison, PLLC, Louisville, KY, Katie M. Glass, Robin E. McGuffin, Stites & Harbison, PLLC, Lexington, KY, Mark R. Overstreet, Stites & Harbison, PLLC, Frankfort, KY, for Defendants Kentucky Bar Association, KBA Board of Governors, Pamela Yvette Hourigan.
Kayla M. Campbell, Mitchel Terence Denham, Dressman Benzinger LaVelle PSC, Louisville, KY, for Defendants Kentucky Board of Bar Examiners, Kentucky Office of Bar Admissions, Kentucky Bar Character and Fitness Committee, Elizabeth Susan Feamster, Grant Helman, Susan Coleman Lawson, Gary Dudley Payne, David Bryan Sloan, Kristen Northcutt, Lisa Larkey, Stephanie Thomas.
Bethany A. Breetz, Stites & Harbison, PLLC, Jeffrey A. McKenzie, Dentons Bingham Greenbaum LLP, Louisville, KY, Katie M. Glass, Robin E. McGuffin, Stites & Harbison, PLLC, Lexington, KY, Mark R. Overstreet, Stites & Harbison, PLLC, Frankfort, KY, for Defendant Kentucky Lawyers' Assistance Program Foundation, Inc.
1. The Court GRANTS Jane Doe's motion for leave to amend (DN 14).
2. The Court DIRECTS the Clerk to file Doe's Amended Complaint (DN 14-1).
3. The Court GRANTS the motions to dismiss (DNs 16, 18, & 19).
4. The Court DENIES AS MOOT :
5. The Court DISMISSES Counts I, II, & III of the Amended Complaint, with prejudice.
6. The Court DISMISSES Counts IV & V of the Amended Complaint, without prejudice.
MEMORANDUM OPINIONCourts, journalists, and scholars have extensively documented the mental health issues that afflict lawyers.1 The problems begin in law school, where "law students have disproportionate levels of stress, anxiety, and mental health concerns compared with other populations."2 After graduation, lawyers suffer from depression at higher rates than non-lawyers.3 Not long ago, the Kentucky Bar Association President described a spike in Kentucky lawyers dying by suicide as "disproportionate" and "disconcerting."4
Jane Doe was a lawyer in Florida. She moved to Kentucky. She wanted to practice law here. Bureaucrats didn't want her to. They thought her mental disability
made her unfit. For over two years, they stopped her. But she didn't give up. And they eventually relented.
Then Doe sued them, alleging they had illegally asked about her mental health history and treatment, illegally forced her to turn over her medical records and her therapists’ notes from their counseling sessions, and illegally treated her like a criminal because of her disability.
This case is not only about Jane Doe. It's also about the lawyers who decide who else can be a lawyer.
Under the Kentucky Constitution, that power belongs to the Supreme Court of Kentucky.5 The court, in turn, delegates that job to its Bar Bureaucracy:
Anyone with any power in this Bar Bureaucracy is a lawyer. So, just like an oil or drug cartel, those who are already selling something get to decide who else may sell that same thing. Of course, unlike most cartels, this one is legal. In fact, the Kentucky Constitution requires it.12
If Doe had sued the Bar Bureaucracy back when it stopped her from entering the market, she would have had standing to ask the Court to block it from treating her like it did. But you can't blame Doe for waiting to sue. If your goal is to persuade the Bar Bureaucracy's lawyers to let you join their club, it isn't a good strategy to poke them in the eye with a lawsuit that accuses them of violating the Americans with Disabilities Act and the United States Constitution.
Because the Bar Bureaucracy (finally) allowed Doe to practice law, she lacks standing for prospective relief. And because legislative and judicial immunity protect Bar Bureaucracies from money damages arising from the promulgation of bar rules and the adjudication of bar applications, the Court will dismiss Doe's federal claims. In addition, the Court declines to exercise supplemental jurisdiction over Doe's state-law claims.
The Bar Bureaucracy won this round against an applicant it deemed suspect and undesirable. But there will be more applicants — and more lawsuits. Some of those plaintiffs will have standing to seek prospective relief. And when they do, the Bar Bureaucracy will have to answer for a medieval approach to mental health that is as cruel as it is counterproductive.
Several federal and state courts have held that the Americans with Disabilities Act prohibits Bar Bureaucracies from unnecessarily interrogating applicants about their mental health.13 So too did the Department of Justice. In 2014, it concluded that questions about applicants’ mental health do "not provide an accurate basis for predicting future misconduct."14 Instead, they likely "deter applicants from seeking counseling and treatment for mental health concerns, which fails to serve the Court's interest in ensuring the fitness of licensed attorneys."15 In other words, according to the Department of Justice, a Bar Bureaucracy's decision to ask applicants about their mental health status makes aspiring lawyers less fit to practice law.16
Jane Doe was born and raised in Kentucky.17 She earned her Florida law license in 2006 and worked there in government and private practice. After a 2014 diagnosis for Bipolar I Disorder, Doe entered a monitoring program run by the Florida Lawyers’ Assistance Program. She was, and remains, in good standing with the Florida bar.18
In December 2015, Doe applied for a Kentucky law license. The application required her to disclose her history of depression and Bipolar I Disorder and that she had undergone treatment. And so began her 994-day tale of bureaucratic woe.
Doe disclosed everything Kentucky's Bar Bureaucracy required her to disclose. That included two required releases giving the Bar Bureaucracy "complete access to her personal and private medical records, including treatment notes"19 and a third for her monitoring records from Florida. In January 2016, Doe's doctor told the Bar Bureaucracy that Doe had "compli[ed] with medical advice, prescription instructions," and what the Florida bar required of her.20 Doe's doctors have always said she should "continue practicing law without concerns for her or the public's safety."21
The Bar Bureaucracy pressed on. So Doe sent in yet another form. This fourth medical records release granted "access to inpatient records, outpatient records, and treatment notes."22
The next month, shortly before Doe took the February 2016 bar exam, the Character and Fitness Committee refused to approve her application. Instead, in March, the Bar Bureaucracy proposed, and Doe signed, a "consent agreement" for conditional admission.23 It required 1) a Kentucky Contract (more on that later); 2) compliance with Florida's rules and Kentucky's rules and reporting requirements; and 3) "residency in Kentucky ... unless" Doe was relocating for work and the Bar Bureaucracy approved.24
The consent agreement did not provide details about the Kentucky Contract. Yvette Hourigan, Director of the Kentucky Lawyer Assistance Program, said the contract would mirror the monitoring arrangement Doe had with the Florida Lawyers’ Assistance Program, which was tailored to Doe's diagnosis.
Doe passed the bar exam. She paid the dues and swearing-in fee.
Although Hourigan had promised to send a proposed contract, she didn't. Instead, she arranged to meet with Doe the morning of the new lawyers’ swearing-in ceremony at the State Capitol. That day, Hourigan "texted that she was running late and they would meet on the steps of the Capitol" minutes before the swearing-in.25
At this point, you might be thinking that a public place with many of Doe's peers isn't an ideal place to discuss private medical issues. (It isn't.)
You might also wonder if other bar applicants could overhear their discussion.26 (They could.)
Instead of the personalized contract Hourigan had promised, she presented a boilerplate contract. It included a host of medically unnecessary requirements, including random drug and alcohol testing. When Doe told Hourigan she had never had drug or alcohol problems, Hourigan told her the provisions were standard. Hourigan, who is not a doctor27 but plays one on the Capitol steps, also said Doe's medications required abstinence from alcohol. (They don't.)
Doe refused to sign the contract. She told Hourigan it violated the Americans with Disabilities Act, and "the ADA does not permit the disabled to be treated like criminals."28 (It doesn't.)
Later in 2016, after Doe provided yet another medical-records release, Doe's doctor advised Hourigan that Doe...
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