Fieger v. Thomas

• Decision Date: 08 February 1996
• Docket Number: Nos. 94-2378,94-2379,s. 94-2378
• Citation: 74 F.3d 740
• Parties: Geoffrey N. FIEGER, Plaintiff-Appellant, v. Philip J. THOMAS, Grievance Administrator, and Michigan Attorney Grievance Commission, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 740

74 F.3d 740

64 USLW 2513

Geoffrey N. FIEGER, Plaintiff-Appellant, v. Philip J. THOMAS, Grievance Administrator, and Michigan Attorney Grievance Commission, Defendants-Appellees.

Nos. 94-2378, 94-2379.

United States Court of Appeals, Sixth Circuit.

Argued April 14, 1995.

Decided Feb. 8, 1996.

Michael Alan Schwartz (briefed), Fieger, Fieger & Schwartz, Southfield, MI, Robert A. Sedler (argued), Wayne State University Law School, Detroit, MI, for plaintiff-appellant.

Jane Shallal (argued and briefed), Michigan Atty. Grievance Com'n, Detroit, MI, for defendants-appellees.

Before: MERRITT, Chief Judge; KEITH and WELLFORD, Circuit Judges.

MERRITT, Chief Judge.

Michigan lawyer Geoffrey Fieger brought this suit in federal district court seeking to enjoin the Michigan Attorney Grievance Commission from prosecuting a three-count disciplinary complaint filed against him on October 12, 1994. In addition to the injunction, Fieger sought a declaration from the district court that the system for lawyer discipline in the State of Michigan and certain rules and standards of professional conduct as adopted by the Michigan Supreme Court are unconstitutional. The sole question we address on this appeal is whether the district court should have declined to address the issues under the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and later cases. Because we conclude that the district court should have declined to exercise jurisdiction, we reverse the decision of the district court and remand with instructions that the case be dismissed. Our abstention decision in this case is controlled by the decision of the Supreme Court in Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982).

I. Background

The Michigan Attorney Grievance Commission ("Commission") is the prosecutorial arm of the State Supreme Court in matters relating to the supervision and discipline of Michigan lawyers. Michigan Court Rule 9.108(A) (hereinafter "M.C.R."). On October 12, 1994, the Commission filed a formal complaint against Geoffrey Fieger with the Michigan Attorney Discipline Board ("Board"). The Board is the adjudicative arm of the Supreme Court in matters relating to the supervision and discipline of Michigan lawyers. M.C.R. 9.110(A). The three-count complaint alleged that Fieger made several disparaging remarks about Michigan prosecutors, judges, justices and the judiciary in general in violation of M.C.R. 9.104(1)-(4) ¹ and Michigan Rule of Professional Conduct (hereinafter M.R.P.C.") 3.5(c) ², 8.2(a) ³ and 8.4(a)-(c) ⁴. Rather than contesting the complaint using the disciplinary procedures approved by the Michigan Supreme Court, Fieger attempted to enjoin the state disciplinary proceedings by filing suit in federal court. He argued that the above-cited Rules of Professional Conduct violate his First Amendment rights and are facially invalid because they are vague and overbroad. He also contended that the Michigan lawyer discipline system violates his right to procedural due process because it does not guarantee that his constitutional claims will be adjudicated.

On December 2, 1994, Judge Borman issued an opinion in this case. At the conclusion of his legal discussion, Judge Borman summarized his holdings as follows:

This Court holds that:

(1) it will not abstain from dealing with Plaintiff's complaint;

(2) it will not grant a preliminary injunction enjoining the [Commission] from prosecuting its complaint against Plaintiff before the [Board];

(3) it will continue to exercise its jurisdiction over this case and will provide judicial review if the Michigan Supreme Court refuses to provide the meaningful judicial review required by the due process clause of the Federal Constitution;

(4) MCR 9.104(1)-(4); and M.R.P.C. 8.2(a) and 8.4(a)-(c), do not violate the First Amendment vagueness overbreadth doctrines in this case, in particular given that each count of the [Commission] complaint limits the conduct subject to discipline to factual statements violative of the Supreme Court's Sullivan standard; and

(5) the facts presented to this Court do not support the finding of a constitutionally-based equal protection/selective prosecution violation.

Fieger v. Thomas, 872 F.Supp. 377, 387-88 (E.D.Mich.1994). This ruling is subject to a de novo review. Federal Express Corp. v. Tennessee Pub. Serv. Comm'n, 925 F.2d 962, 967 (6th Cir.), cert. denied, 502 U.S. 812, 112 S.Ct. 59, 116 L.Ed.2d 35 (1991).

II. Analysis

A. Abstention

It has been nearly 25 years since the Supreme Court instructed federal courts that the principles of equity, comity and federalism in certain circumstances counsel abstention in deference to ongoing state proceedings. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In Younger, the Court held that a federal court should not interfere with a pending state criminal proceeding except in the rare situation where an injunction is necessary to prevent great and immediate irreparable injury. The Court reasoned that important federalism concerns require:

a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.

Id. at 44, 91 S.Ct. at 750. Since Younger, the Supreme Court has applied abstention to state civil proceedings which involve important state interests and to a variety of state administrative proceedings.

In 1982, in Middlesex County Ethics Committee v. Garden State Bar Ass'n, the Supreme Court set out a three part test for determining when the abstention doctrine should be applied. 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Middlesex is a disciplinary case, similar to the one at hand, in which a New Jersey lawyer filed suit in federal court to try to enjoin state disciplinary proceedings on the ground that the disciplinary rules violated his First Amendment rights and that the rules were facially vague and overbroad. The New Jersey Ethics Committee took issue with the lawyer's comments, made at the beginning of a criminal trial, that characterized the proceedings as "a travesty," a "legalized lynching," and "a kangaroo court." Id. at 428, 102 S.Ct. at 2519. The district court abstained on the basis of Younger. The Third Circuit, however, reversed on the ground that the state bar disciplinary proceedings did not provide a meaningful opportunity to adjudicate constitutional claims. The Appellate Court viewed the proceedings as "administrative," not "judicial." Thus, the Supreme Court had before it virtually all the questions that we now face--a constitutional attack on the state disciplinary rules as well as its procedures. The Supreme Court reversed, enumerating the three-part test which forms the basis of our analysis today:

1) Do state bar disciplinary hearings within the constitutionally prescribed jurisdiction of the State Supreme Court constitute an ongoing state judicial proceeding;

2) do the proceedings implicate important state interests; and

3) is there an adequate opportunity in the state proceedings to raise constitutional challenges?

Id. at 432, 102 S.Ct. at 2521.

1. The First Requirement: Ongoing State Judicial Proceedings

The first requirement of abstention under the Middlesex test is that of "ongoing state judicial proceedings." Id. The Plaintiff contends that the Michigan disciplinary proceedings are administrative proceedings, not judicial, and they therefore, fail the first part of the Middlesex test. The Supreme Court has reasoned, however, that the federalism concerns which gave rise to Younger and its progeny are fully applicable to non-criminal proceedings when important state interests are involved. Id. In New Orleans Public Service, Inc. v. Council of the City of New Orleans, the Supreme Court held that in determining whether an administrative proceeding is judicial in nature for purposes of Younger abstention, a court must examine the "nature of the final act." 491 U.S. 350, 371, 109 S.Ct. 2506, 2520, 105 L.Ed.2d 298 (1989) ("NOPSI ") (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226-27, 29 S.Ct. 67, 69-70, 53 L.Ed. 150 (1908)). The Court explained that "[a] judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist." Id. at 370, 109 S.Ct. at 2519 (quoting Prentis, 211 U.S. at 226, 29 S.Ct. at 69); see also CSXT, Inc. v. Pitz, 883 F.2d 468, 474 (6th Cir.1989), cert. denied, 494 U.S. 1030, 110 S.Ct. 1480, 108 L.Ed.2d 616 (1990). Because the Board is proceeding against Fieger to enforce its Rules of Professional Conduct, it is performing an adjudicative, as opposed to a legislative, function. It therefore, satisfies the first requirement for Younger abstention. Thus, under both Middlesex and NOPSI, the Michigan proceedings are judicial in nature for purposes of Younger abstention.

The Plaintiff relies on the Sixth Circuit case, In re Grand Jury 89-4-72, 932 F.2d 481 (6th Cir.), cert. denied, 502 U.S. 958, 112 S.Ct. 418, 116 L.Ed.2d 438 (1991). In that case, the Michigan Attorney Grievance Commission requested disclosure of all the evidence that had been presented to a grand jury in a bribery case and that might have related to criminal or unethical conduct by a Michigan lawyer. Id. at 482. The request was based on Federal Rule of Criminal Procedure 6(e)(3)(c)(i), an exception to the general rule prohibiting disclosure of grand jury proceedings. The grand jury had been charged with investigating allegations that a state judge had accepted bribes from lawyers in return for favorable consideration of pending cases. The lawyer argued that disclosure to the Commission would be improper because the...