Moncier v. Jones, 3:11–CV–301.
| Decision Date | 19 July 2011 |
| Docket Number | No. 3:11–CV–301.,3:11–CV–301. |
| Citation | 803 F.Supp.2d 815 |
| Parties | Herbert S. MONCIER, Plaintiff, v. Nancy JONES, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Tennessee |
OPINION TEXT STARTS HERE
Herbert S. Moncier, Knoxville, TN, pro se.
Jonathan N. Wike, Tennessee Attorney General's Office, Janet M. Kleinfelter, Office of the Attorney General, Nashville, TN, for Defendants.
This civil action is before the Court on plaintiff's request for injunctive relief [Docs. 2, 10].1 Defendants filed a response in opposition [Doc. 8], and plaintiff replied [Docs. 9, 10]. The Court then heard oral argument, at length, from all parties [Doc. 15]. The day after the hearing, defendants filed a notice of supplemental authority [Doc. 16].
The Court has thoroughly considered the filings as well as the arguments advanced orally by the parties. For the reasons stated herein, the Court denies plaintiff's request for injunctive relief.
This case comes to the Court with a long, complex, and in some ways unfortunate, history. On July 30, 2008, defendant Nancy Jones, Disciplinary Counsel for the Board of Professional Responsibility of the Supreme Court of Tennessee (the “Board”), filed a petition for discipline against plaintiff [Doc. 8–1]. A hearing panel for the Board held a hearing and, on January 13, 2010, the hearing panel issued its judgment, finding plaintiff had violated certain rules of the Tennessee Rules of Professional Conduct, and imposed a forty-five day active suspension, along with a ten-and-one-half month probationary period [Doc. 6 ¶ 10]. The hearing panel also required a practice monitor for plaintiff's probationary period and that plaintiff obtain an additional twelve hours of ethics continuing legal education during that time [ Id.]. Plaintiff filed post-judgment motions on January 19, 2010, pursuant to “Tenn. Sup.Ct. R. 9, 23.2 and Tenn. R. Civ. P. 52.02, 54.02, 59.04 and 60.02 for relief from multiple errors and mistakes in the [h]earing [p]anel's judgment” [ Id. at ¶ 11]. On February 13, 2011, the hearing panel held that it did not have the authority to consider plaintiff's motions [ Id. at ¶ 12]. The Board considered the hearing panel's judgment on March 12, 2010 [Doc. 8–1].2
Pursuant to Tennessee Supreme Court Rule 9 §§ 1.3 and 8.3 and Tenn.Code Ann. § 29–9–101 et seq. , as well as “the routine and customary practice under those rules and statutes,” plaintiff alleges that he timely filed a petition for judicial review with the Knox County Circuit Court [ Id. at ¶ 13]. On September 10, 2010, the Circuit Court held that portions of the hearing panel's order were not charged in plaintiff's disciplinary complaint, dismissed those charges, and ordered a reconsideration of the appropriate discipline [ Id. at ¶ 14; Doc. 8–1].
On December 20, 2010, a date on which plaintiff states his new hearing before the hearing panel was pending, the Tennessee Supreme Court decided Board of Professional Responsibility of the Tennessee Supreme Court v. Cawood, 330 S.W.3d 608 (Tenn.2010), which plaintiff contends “changed the routine and customary practice for obtaining judicial review in Tennessee disciplinary proceedings” [Doc. 6 ¶ 15]. Plaintiff further contends that the Tennessee Supreme Court incorporated into Rule 9 §§ 1.3 and 8.3 and Tenn.Code Ann. § 27–9–101 et seq. requirements from a different statute, Tenn.Code Ann. § 27–8–101 et seq. , which “requires writs for constitutional certiorari to be under oath and contain the language that the petition was the ‘first application for the writ’ ” [ Id. at ¶ 16].
Thereafter, the Board filed a motion, pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure, asking the Circuit Court to set aside its order affirming in part and reversing in part the judgment of the hearing panel on the ground that plaintiff's petition failed to satisfy the requirements set forth in Cawood [ Id. at ¶ 19; Doc. 8–1]. Plaintiff also filed a Rule 60.02 motion on February 11, 2011, requesting that the Circuit Court grant plaintiff relief by setting aside its earlier judgment and allow plaintiff to amend and supplement his petition to conform to the requirements of Cawood [Doc. 6 ¶ 20].3 On February 18, 2011, the Circuit Court granted the Board's motion and vacated its judgment, and denied plaintiff's motion [ Id. at ¶¶ 21, 22]. Consequently, on March 9, 2011, the Board filed a “Protocol Memorandum” in the Tennessee Supreme Court seeking to enforce its original judgment and punishment [ Id. at ¶ 30]. On March 10, 2011, plaintiff filed an appeal of the denial of his Rule 60.02 motion, and, on March 14, 2011, he sought a stay of the enforcement of discipline until the conclusion of his appeal [ Id. at ¶ 23; Doc. 8–1]. The Tennessee Supreme Court denied the request for a stay, but granted plaintiff's alternative request for an opportunity to respond to the Board's proposed order of enforcement [Doc. 8–1]. Plaintiff subsequently filed a “lengthy response to the proposed order of enforcement, formally raising fifteen issues,” as well as other motions [ Id.]. One such motion requested that the court consolidate plaintiff's appeal of the February 18, 2011 order of the Circuit Court with the Board's request for enforcement [ Id.].
Plaintiff informs the Court that he also filed a Rule 60.02 motion with the hearing panel on February 12, 2011, seeking relief from its judgment and permission to re-file his petition for judicial review under the requirements of Cawood, alleging that the Tennessee Rules of Civil Procedure apply to the hearing panel disciplinary proceedings pursuant to Rule 25.1 of the Tennessee Supreme Court [Doc. 6 ¶¶ 24, 25]. On March 4, 2011, the hearing panel held it did not have jurisdiction to grant plaintiff Rule 60.02 relief [ Id. at ¶ 26]. Plaintiff contends that he filed an application for judicial review of that decision, but the Circuit Court denied judicial review [ Id. at ¶¶ 17, 28]. Plaintiff appealed that denial on April 29, 2011 [ Id. at ¶ 29].
On February 11, 2011 plaintiff filed a request for habeas corpus relief in Knox County Criminal Court [Doc. 8], requesting relief in the event the Circuit Court granted the Board's Rule 60.02 motion and the hearing panel denied plaintiff's Rule 60.02 motion [ Id.]. The habeas proceeding was dismissed on May 10, 2011 [ Id.]. On June 9, 2011, plaintiff filed a notice of appeal of that order [ Id.].
On June 1, 2011, after reviewing “the Board's proposed order of enforcement, [plaintiff's] response, the Board's reply, [plaintiff's] motions, and the Board's responses to those motions,” the Tennessee Supreme Court issued an order of enforcement, concluding “that the punishment imposed by the [h]earing [p]anel is neither inadequate nor excessive, but rather ... appropriate under the circumstances of this case and consistent with the goal of attaining uniformity of punishment throughout the State” [Doc. 8–1; Doc. 6 ¶¶ 31, 32]. The Tennessee Supreme Court also entered judgment against plaintiff for approximately $22,000 in attorney fees “for payment of Disciplinary Counsel's prosecution of [p]laintiff that had been reversed by the Circuit Court ... [and] judicially defaulted by Cawood ” [Doc. 8–1; Doc. 6 at ¶ 34]. It declined, plaintiff asserts, to address plaintiff's claim that the hearing panel and the subsequent disciplinary proceedings were conducted in violation of plaintiff's federal constitutional rights [Doc. 6 ¶ 33].
Plaintiff claims that the State of Tennessee and the Board currently are enforcing plaintiff's punishment “under color of Tennessee's unconstitutional disciplinary proceedings” [ Id. at ¶ 35]. He asserts that the proceedings were quasi-criminal in nature under In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), and are to be conducted in conformity with constitutional due process [ Id. at ¶ 36]. He further claims he has exhausted his state-court remedies [ Id. at ¶ 37].
Plaintiff alleges ten “counts” in his amended complaint. Count I alleges that the practice monitor probation provision violates the Fourth, Fifth, and Fourteenth Amendments.4 Plaintiff asserts that the Disciplinary Counsel did not request a practice monitor from the hearing panel, but such condition was included in the hearing panel's judgment on its own initiative [ Id. at ¶¶ 41, 42]. Plaintiff claims he has never had an opportunity to be heard on the appointment or duties of a practice monitor [ Id. at ¶ 43].
According to plaintiff, the Disciplinary Counsel's duties are established by Tennessee Supreme Court Rule 9 § 7.2 and do not include appointing or establishing the duties of a practice monitor and do not provide that the Disciplinary Counsel may dictate the terms and conditions of plaintiff's probation [ Id. at ¶ 44]. Nevertheless, plaintiff asserts, defendant Jones assumed the role of plaintiff's probation officer without authority and is imposing conditions upon plaintiff's probation that have not been ordered by the hearing panel or the Board, thus violating plaintiff's rights under the Fourth, Fifth, and Fourteenth Amendments [ Id. at ¶ 45].
Plaintiff claims that he has attempted to obtain information about the practice monitor provision from defendant Jones, including who the person would be, what the person's duties would be, what access the person would have to plaintiff's office, plaintiff's clients, attorney-client or attorney work product materials, information necessary to determine what plaintiff does in court or with a client, and what access the person would have when plaintiff is traveling or working outside of his office [ Id. at ¶¶ 49, 50].5 Plaintiff also claims that only after the filing of the original complaint in this action did defendant Jones inform him that he would be required to pay for a practice monitor for all of his court appearances and that plaintiff would not have to share any information with the practice monitor [ Id. at ¶ 51]. Plainti...
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