Rose v. Office of Prof'l Conduct

• Decision Date: 15 August 2017
• Docket Number: No. 20151037,20151037
• Citation: 424 P.3d 134
• Parties: Susan ROSE, Appellant, v. OFFICE OF PROFESSIONAL CONDUCT, Appellee.
• Court: Utah Supreme Court

424 P.3d 134

Susan ROSE, Appellant,

v.OFFICE OF PROFESSIONAL CONDUCT, Appellee.

No. 20151037

Supreme Court of Utah.

Filed August 15, 2017

Susan Rose, pro se, Sandy, for appellant.

Adam C. Bevis, Billy Walker, Salt Lake City, for appellee.

Justice Pearce authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Durham, and Judge Pohlman joined.

Having been recused, Justice Himonas does not participate herein; Court of Appeals Judge Jill M. Pohlman sat.

On Direct Appeal

Justice Pearce, opinion of the Court:

INTRODUCTION

¶ 1 The district court disbarred Susan Rose for violations of Utah's Rules of Professional Conduct in cases Rose handled in both federal and state courts. Her disbarment came after the district court struck her answer and entered default judgment against her. The disbarment did not come suddenly, or by surprise. Over the course of several years, Rose had received multiple warnings from multiple tribunals. These tribunals called her motion practice "bizarre," "inscrutable," "dilatory," "frivolous," "legally meritless," "wholly superfluous," "utter[ly] incomprehensibl[e]," "unresponsive, immaterial, and redundant," and "not based in reality."

¶ 2 After receiving and investigating referrals concerning Rose's conduct, the Office of Professional Conduct brought an action in the Third District Court. Nearly eight years later, the district court struck Rose's answer and entered default judgment, concluding that Rose had abused the discovery and litigation process. By entering default judgment, the court accepted as true the allegations that Rose had violated a number of the Rules of Professional Conduct.

¶ 3 At her subsequent sanctions hearing, Rose refused to defend herself. She told the district court, "I think it's fair to say I know how this will go, I know how the end result will be, and I'm done." And in the end, Rose was disbarred.

¶ 4 Rose does not explicitly argue on appeal that the district court should not have entered default judgment, that her conduct did not violate the rules, or that disbarment was too harsh a sanction.¹ Instead, she claims that Utah's process is unconstitutional in a number of ways. She contests this court's jurisdiction and argues that the Supremacy Clause and principles of res judicata prevent Utah from disciplining her. She also brings a number of constitutional claims, arguing that Utah's attorney discipline proceedings violated her due process and equal protection rights under the United States Constitution. She ultimately petitions this court to dismiss this case entirely because "Utah's system is an inquisition" that violates her due process and equal protection rights and is therefore "void."

¶ 5 We affirm the order of the district court but note that this is an unusual case. The district court entered a default judgment against Rose, and Rose chose not to defend herself at the sanctions hearing. Rose has not directly challenged the decision to enter default or the appropriateness of disbarment as a sanction. This requires us to start from the factual premise that Rose committed the violations of which she was accused. We are only left to sort through Rose's challenges to the attorney discipline system.

BACKGROUND

¶ 6 Susan Rose was admitted to the Utah State Bar in 1997. In 2001 and 2005, the Utah Bar received two informal complaints against Rose in two separate cases—one in federal court and the other in state court.

I. The Federal Court Case

¶ 7 In 1999, Rose represented a group of plaintiffs in an action before the Navajo Tribal Court. The Tribal Court granted Rose's clients relief. Rose later tried to enforce the Tribal Court's order against San Juan County and several non-tribal member defendants in federal district court. Her case was assigned to Judge Dale Kimball.

¶ 8 While representing her clients in federal court, Rose filed several pleadings and motions that the court found to be frivolous. After Judge Kimball granted a motion to dismiss against certain defendants based on sovereign immunity and then dismissed the case as to several other defendants for lack of jurisdiction, Rose filed a notice of appeal in the Tenth Circuit Court of Appeals. She also moved to disqualify Judge Kimball.

¶ 9 In Rose's motion to disqualify Judge Kimball, Rose emphasized Judge Kimball's apparent religious affiliation. Rose complained that "being a member of said Church and an acknowledged social leader in Utah, [if he] would have ruled to enforce the civil rights of the Navajo Court plaintiffs, Judge Kimball may have been subjected to great social and political pressures." Rose claimed that ruling in her clients' favor would have caused Judge Kimball "political and social embarrassment."

¶ 10 The judge did not agree, and he told her so. He explained that Rose and her clients would "not find a judge more sympathetic to their claims, more willing to apply the law impartially, or more patient with [Rose's] blundering-but-probably-well-meaning efforts." (Emphases in original.) Judge Kimball nevertheless recused himself because he believed that her clients "ha[d] lost faith in th[e] court's ability to treat them impartially."

¶ 11 Judge Kimball's opinion and recusal order describe Rose's conduct before his court and her competence as an attorney:

• The court had been "tolerating [Rose's] repeated and time-consuming calls to chambers with procedural questions and also tolerating Plaintiffs' often incomprehensible pleadings and memoranda."

• "Defendants have repeatedly—‘and justifiably’—requested ... that the court dismiss Plaintiffs' Complaint based on ... its utter incomprehensibility and its failure to identify which claims are alleged against which Defendants. This court, however, ... has chosen ... to endure Plaintiffs' inscrutable Complaint."

• "Plaintiffs [filed a] constant stream of motions, corrections to motions, amendments to motions, re-filing of motions after the responsive memorandum had been filed by the Defendants, and further briefing of motions after oral arguments."

• "[T]he court has clearly demonstrated its frustrations with Plaintiffs and their counsel for their failure to understand the law or to follow the Federal Rules of Civil Procedure, the local rules, and the Rules of Professional Conduct."

• "Plaintiffs also cast various aspersions regarding this court's alleged statements during oral arguments, without any citations to transcripts to demonstrate that such statements were actually made and the context in which they are made. To the extent that there exists any kernel of truth in any of the various statements that Plaintiffs allege that the court made, the statements, not surprisingly, have been taken entirely out of context and/or mischaracterized...."

• "[I]t was apparent in various memoranda and oral arguments throughout this litigation that Plaintiffs and their counsel do not appear to understand the concepts of [the prior] Orders or the reach of the Orders, as they have repeatedly mischaracterized and/or misrepresented various statements in the Order."

• "Only in this case would one find (1) Plaintiffs' counsel attempting to represent a Defendant in the same case; (2) a Defendant who opposes his dismissal from the case; and (3) Plaintiffs claiming that the court's bias against Plaintiffs is reflected in the court's purported interference with a Defendant's filing of a responsive pleading."

(Emphases in original.) Judge Kimball remarked that, in short, it was "clear that [Rose's] perception is not based in reality."

¶ 12 The case was reassigned to Judge Bruce Jenkins. Judge Jenkins dismissed several claims against the remaining defendants. Rose in turn filed motion after motion, amendments to motions, objections to rulings, and motions for reconsideration. Judge Jenkins ultimately dismissed all claims against the remaining defendants for a lack of any factual basis for any claim.

¶ 13 Over the next three years, Rose continued to deluge the court with her motion practice. Finally, in 2005, Judge Jenkins issued a 172-page memorandum decision clarifying his 2002 pretrial hearing ruling.

¶ 14 Judge Jenkins's order also commented on Rose's conduct before his court and her competence as an attorney:

• "[G]leaning the elements of a particular antitrust law violation from the dense thicket of the plaintiffs' pleadings, original and amended, proves a daunting and largely fruitless task."

• "[I]t becomes apparent that many of plaintiffs' theories of liability had already failed as a matter of law—one because the statute in question simply does not afford Plaintiffs a private civil remedy, the others because they are legally meritless."

• "[Plaintiffs'] claims may properly be dismissed as frivolous ... because they are based upon an indisputably meritless legal theory, or are footed upon conclusory assertions rather than specific facts."

• "From the commencement of this litigation, plaintiffs' counsel has taken a dramatically different approach to pleading ... claims, at times shuffling each plaintiff's factual allegations and legal assertions together as one would a deck of playing cards, sacrificing narrative sequence in favor of argumentative characterizations and conclusory assertions."

¶ 15 Even after the district court had entered its final judgment and exhaustively explained the basis for its decision, Rose continued to file motions in the federal district court. She also filed a pleading in the Tenth Circuit asking it to recuse Judge Jenkins. Judge Jenkins responded to Rose in an order stating that the motions before him were "wholly superfluous." Judge Jenkins pronounced "enough is enough" and refused to entertain any further motions in the case until the Tenth Circuit had decided Rose's motion to recuse.

¶ 16 At various points before that, Rose had moved the federal district court to recuse Judge Jenkins. Judge Jenkins denied each of Rose's five motions to recuse him. He denied her motions "for lack of the requisite factual grounds that...