Matter of Gorence
| Decision Date | 28 December 1992 |
| Docket Number | No. 92-CV-0405-JB.,92-CV-0405-JB. |
| Citation | 810 F. Supp. 1234 |
| Parties | In the Matter of Robert J. GORENCE An Attorney Admitted to Practice Before the Courts of the State of New Mexico. |
| Court | U.S. District Court — District of New Mexico |
David N. Williams, Asst. U.S. Atty., Albuquerque, NM, for petitioner.
Virginia L. Ferrara, Chief Disciplinary Counsel, Albuquerque, NM, for respondent.
ORDER GRANTING THE DISCIPLINARY BOARD OF THE SUPREME COURT OF THE STATE OF NEW MEXICO'S MOTION TO REMAND
The above-entitled matter having come before the Court upon the Disciplinary Board's Motion for Remand, and the Court having reviewed the material on file herein, having heard oral argument, and being fully advised in the premises, FINDS and ORDERS as follows:
Background
Petitioner Robert E. Gorence ("Gorence") is an Assistant United States Attorney in the state of New Mexico. Gorence successfully prosecuted two extortionists, Brian Ellzey and his father, David Ellzey. During the investigation of David Ellzey, Gorence contacted Brian Ellzey three different times without advising Brian Ellzey's attorney, assistant federal public defender Peter Schoenburg ("Schoenburg"). Apparently, Gorence contacted Brian Ellzey in an effort to persuade Brian to testify against his father. The parties dispute whether Schoenburg still represented Brian Ellzey at the time of the contacts by Gorence.
After the first contact, Schoenburg called Gorence to protest. Schoenburg subsequently filed a complaint against Gorence with New Mexico's Disciplinary Board alleging that Gorence's contact with Brian Ellzey was unethical. The Disciplinary Board conducted an investigation which focused on the allegation that Gorence violated Rule 16-402 of New Mexico's Rules of Professional Conduct. The rule directs that "in representing a client a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."
The hearing officer who conducted the investigation found probable cause to believe Gorence had violated the rule. The Disciplinary Board offered Gorence an informal admonition regarding his conduct which Gorence rejected. In turn, the Disciplinary Board filed a formal specification of charges against Gorence. Gorence removed the case to federal court under 28 U.S.C. § 1442(a) — the federal officer removal statute. The case was reassigned to this Court.
The issue before this Court is whether Gorence may properly remove his disciplinary proceeding to federal court. For reasons outlined below, the Court holds that Gorence may not so remove and that this case must be remanded to the New Mexico Disciplinary Board.
For removal to be proper under the statute, the law requires that three related elements be satisfied by the party seeking removal: (1) the subject action or prosecution must be civil or criminal pursuant to § 1442(a), (2) the party must be an officer of the United States acting within the scope or color of that office pursuant to § 1442(a)(1), and (3) the party must be able to assert "a colorable claim of federal immunity or other federal defenses," Mesa v. California, 489 U.S. 121, 139, 109 S.Ct. 959, 970, 103 L.Ed.2d 99 (1989). Gorence argues that he satisfies all three requirements.1
An overwhelming majority of courts have held that a disciplinary proceeding is neither criminal nor civil in nature. See e.g., Razatos v. Colorado Supreme Court, 746 F.2d 1429, 1435 (10th Cir.1984) (); In re Daley, 549 F.2d 469, 475 (7th Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 110, 54 L.Ed.2d 89 (1977) (); In the Matter of John Doe, Esq., 801 F.Supp. 478, 481-84 (D.N.M.1992) (). See also Franklin D. Cleckley, Clearly Erroneous: The Fourth Circuit's Decision to Uphold Removal of A State-Bar Disciplinary Proceeding Under The Federal-Officer Removal Statute, 92 W.VA.L.REV. 577, 621-29 (1990) (hereinafter Cleckley). A few courts have characterized disciplinary proceedings as either "special civil" proceedings or "quasi-criminal" in nature. See e.g., In re Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117 (1968) (); Committee on Professional Ethics v. Bromwell, 389 N.W.2d 854, 857 (Iowa 1986) (). However, this Court finds that state bar disciplinary proceedings function not to determine whether an attorney's conduct violates criminal or civil law, but whether the attorney "retains the attribute of moral fitness which is requisite to the fulfillment of an attorney's responsibilities to the court which licensed him, as well as to the public." In re Daley, 549 F.2d at 475. Thus, this Court concludes that a disciplinary proceeding is sui generis.
Gorence contends that the label affixed to an action should not control so long as "the action clearly falls within the language and intent of 28 U.S.C. 1442." State of Wisconsin v. Schaffer, 565 F.2d 961, 963 (7th Cir.1977) citing North Carolina v. Carr, 386 F.2d 129, 131 (4th Cir. 1967). To this end, Gorence asserts that § 1442 should be construed broadly to effectuate its purpose and that disciplinary proceedings fit comfortably within this broad construction. The question then arises as to what is the purpose of 28 U.S.C. § 1442.
The most recent case of import analyzing federal-officer removal is Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989). Mesa held that a federal officer may remove his or her action to federal court pursuant to § 1442 if he or she avers a federal defense. Id. at 129, 109 S.Ct. at 964. To "aver a federal defense," a federal officer must either (a) "cause it to appear that his defense was that in doing the acts charged he was doing no more than his duty under federal law," or (b) "exclude the possibility that the action against the federal officer was based on acts or conduct of the federal officer's not justified by his federal duty." Id. at 131-32, 109 S.Ct. at 966 quoting Gay v. Ruff, 292 U.S. 25, 34, 54 S.Ct. 608, 612, 78 L.Ed. 1099 (1934) and quoting Maryland v. Soper (No. 1), 270 U.S. 9, 33, 46 S.Ct. 185, 190, 70 L.Ed. 449 (1926). Simply stated, Mesa holds that the federal officer must offer the Court some facts which support the claim that the officer was obligated to perform an official federal duty, and that the officer's actions arose out of those official duties.2
In support of the proposition that this Court should construe § 1442 broadly and that disciplinary proceedings fall within this broad construction, Gorence cites three cases. First, Gorence cites North Carolina v. Carr, 386 F.2d 129 (4th Cir.1967), in which the Fourth Circuit allowed a nonparty witness who was a federal officer in a state civil action to remove a contempt action brought against him by the state.3 Id. at 131. Gorence urges that if the federal officer in Carr could remove his case to federal court, then this Court must allow Gorence to remove his case, a fortiori.
Second, Gorence cites Wisconsin v. Schaffer, 565 F.2d 961 (7th Cir.1977). In Schaffer, the Seventh Circuit allowed a United States Attorney to remove to federal court a contempt proceeding brought against him by the state. Citing Carr favorably, the Schaffer court held that removal was proper because the federal prosecutor was acting within the scope of his duties, regardless of how the state characterized the contempt proceeding. Id. at 963.
Finally, Gorence refers this Court to Kolibash v. Committee on Legal Ethics of West Virginia Bar, 872 F.2d 571 (4th Cir. 1989). In Kolibash, the Fourth Circuit held, inter alia, that a state bar's disciplinary action against a federal prosecutor constituted a "civil action or criminal prosecution;" and, that a United States attorney may aver colorable federal defenses — absolute immunity, qualified immunity, supremacy clause, pre-emption and sovereign immunity — in seeking to remove a disciplinary proceeding to federal court. Id. at 575-76.
Carr and Schaffer are readily distinguished from the case at bar. The distinguishing feature derives from the fact that the issue before both courts was whether contempt proceedings brought against a federal officer could be removed to federal court. For example, in Schaffer, the Seventh Circuit reasoned that:
The federal officer's refusal to comply with the subpoena was based on the proposition that he could not disclose the requested material without violating Rule 6(e) of the Federal Rules of Criminal Procedure. This rule prohibits his disclosure of grand jury transcripts unless done in the performance of his duties or unless directed by the district court. His defense to the charge of contempt thus was based on his duty under federal law.
The reasoning employed in Schaffer makes little sense when applied to the case at bar. In Schaffer, the federal...
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Kennedy v. Rockwell
...proceedings - as neither civil nor criminal - has been adopted by "[a]n overwhelming majority of courts." Matter of Gorence, 810 F. Supp. 1234, 1235-36 (D.N.M. 1992) (collecting cases). The proceeding at issue in this case is, therefore, not a "civil action" subject to removal under 28 U.S.......
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Disciplinary Bd. of the New Mexico Supreme Court v. Livingston, 14-cv-00418 KG-RHS
...and, therefor, not subject to removal. "[A] disciplinary proceeding is neither criminal nor civil in nature." Matter of Gorence, 810 F.Supp. 1234, 1235 (D.N.M. 1992) (citing Razatos v. Colorado Supreme Court, 746 F.2d 1429, 1435 (10th Cir. 1984) (stating disciplinary action of attorney notc......
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