Read full text of Deter’s Lawsuit Against KBA

U.S. District Judge Danny Reeves, has set a hearing on the complaint of Eric Deters, for Friday Jan. 14,2011 at Frankfort.

The Dters complaint as published by www.Cincinnati.com

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION AT COVINGTON

ERIC C. DETERS : CASE NO:

:

Plaintiff :

v. : Judge:

:

BRUCE K. DAVIS :

President :

Kentucky Bar Association :

514 West Main Street :

Frankfort, KY 40601 :

:

and :

:

KENTUCKY BAR ASSOCIATION :

514 West Main Street :

Frankfort, KY 40601 :

:

Serve: Bruce K. Davis :

:

and :

:

SUSAN GREENWELL :

Disciplinary Clerk :

Kentucky Bar Association :

514 West Main Street :

Frankfort, KY 40601 :

:

and :

:

SUSAN STOKLEY CLARY :

Clerk of Supreme Court :

700 Capital Ave. :

Room 235 :

Frankfort, Ky 40601-3415 :

:

and :

:

CHIEF JUSTICE JOHN D. MINTON, JR. :

Chief Justice of Kentucky :

Supreme Court :

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2700 Capital Ave. :

Room 235 :

Frankfort, Ky 40601-3415 :

:

Defendants. :

VERIFIED COMPLAINT

FOR DECLARATORY AND INJUNCTIVE RELIEF

Comes now, Eric Deters, by and through his own counsel, states as follows:

I. Jurisdiction

1. This is a civil action seeking equitable and declaratory relief, vindicating the

privileges, and immunities guaranteed to the Plaintiff by the Constitution of the

United States.

2. Jurisdiction is conferred upon this Honorable Court and is founded upon 28 U.S.C.

§§ 1331, 1343, and 42 U.S.C. §§ 1983; 1985.

3. Jurisdiction is further conferred upon this Honorable Court and is founded upon the

Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202.

II. Parties

4. Plaintiff, Eric Deters, hereinafter referred to as Plaintiff, is, and was at all times

material hereto, a citizen of the United States, and of the State of Kentucky, and a

resident of the judicial district. He is also a licensed attorney in good standing in the

states of Kentucky, Ohio and Florida.

5. The Defendant, Bruce K. Davis, is the President of the Defendant, Kentucky Bar

Association, and is at all times, upon information and belief, a citizen of the United

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3States and State of Kentucky, acting under the color of state law. Said defendant is

being sued individually and in his official capacity. In addition, the Kentucky Bar

Counsel is part of the Bar Association.

6. The Defendant, Susan Greenwell, is the Disciplinary Clerk of the Kentucky Bar

Association, and is at all times, upon information and belief, a citizen of the United

States and State of Kentucky, acting under the color of state law. Said defendant is

being sued individually and in her official capacity.

7. The Defendant, Susan Stokley Clary, is the Clerk of the Kentucky Supreme Court,

and is at all times, upon information and belief, a citizen of the United States and

State of Kentucky, acting under the color of state law. Said defendant is being sued

individually and in her official capacity.

8. The Defendant, John D. Minton, Jr., is the Chief Justice of the Kentucky Supreme

Court, and is at all times, upon information and belief, a citizen of the United States

and State of Kentucky, acting under the color of state law. Said defendant is being

sued individually and in his official capacity.

III. Bar Counsel False Statements

And Charges

Bar Counsel has made the following false statements and charges:

9. Accusing Plaintiff of making false statements concerning Judge Bates. At the

tribunal, through Judge Bates own testimony, Plaintiff proved he made no false

statements.

10. Accusing Plaintiff of naming Henry Fischer a Defendant in the jail battle case. In

their Reply Brief, Bar Counsel finally admitted their mistake.

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411. Accusing Plaintiff of soliciting representing Richard Clise without his permission.

Plaintiff proved he only represented Stacey Clise and referred Richard Clise to Andy

Busald.

12. Accusing Plaintiff of not having a written understanding/agreement on the fee of

Radokovic and Moberly when Plaintiff produced proof he did.

13. Accusing Plaintiff of making a knowingly false statement in the Kahrs matter, when

Plaintiff proved through Kahrs own affidavit, it was a honest mistake.

Despite the responses to the Bar Complaint disproving the allegations, Bar Counsel filed

charges knowing they were false. The tribunal reinforced proof of the false charges. They

were so severe, Plaintiff filed a Rule 11 against Bar Counsel. (See attached.) It spells out

even more false statements made by Bar Counsel.

14. In addition to these false statements, Plaintiff has, as reflected in the Exhibits to these

Charges, had to endure the following:

A. A leak by bar counsel of the Clise charge. And, a refusal by bar counsel to

respond. Only after a letter to Chief Justice Minton, did bar counsel respond.

B. Slander and libels pertaining to these proceedings on blogs and websites.

C. A private reprimand once made public. (Justice Keller to his credit wrote a

written apology.)

D. A false allegation by Deputy Bar Counsel Jay Garrett that the media did not

contact me about the Clise charge.

E. A false allegation that I did not file something timely.

All of these are documented in Exhibits in the bar matters. In the history of bar counsel, no

one has been more unfairly prosecuted.

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5This matter involves total dishonesty and lack of integrity by Bar Counsel. Bar

Counsel should be above reproach. They should not try to make false statements against

lawyers in good standing. (The Brief attached details how terrible Bar Counsel’s conduct

has been in this matter.)

IV. Factual Allegations

15. The Kentucky Bar Association, acting through Bar Counsel, charged Plaintiff with

six charges. It’s Plaintiff’s position these charges are baseless and he has vigorously

defended himself. None of the charges involve: dishonesty, moral turpitude,

criminal conduct, fraud, theft, malpractice or any shameful act. Plaintiff was “serial

bar complained” by a collection of attorneys who are for lack of a better descriptive

word – his enemies. Plaintiff can prove these lawyers file or threaten Rule 11 in

nearly every case they are involved with Plaintiff. In addition, Plaintiff angered Bar

Counsel when he pointed out Bar Counsel’s misconduct in these matters. Plaintiff

attaches to the Complaint, his entire Brief filed in the bar association to detail before

the Court the charges, the process and the unfairness of the process. He also attaches

Motions and other documents filed which reflect his concerns about the bias of Frank

Doheny, the trial commissioner. Plaintiff has nothing to hide relative to his conduct

as charged. He accepts this filing makes all this public and he is allowed to do so at

his own choosing. Having Bob Carran and Phil Taliaferro telling people he was

being disbarred, caused Plaintiff to discuss these matters on the radio anyway. The

last proposal by the bar counsel was a thirty day suspension. Plaintiff rejected this

proposal. Plaintiff has prepared affidavits to support Carran and Taliaferro

informing people his legal career is over. They are behind one or more of these bar

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6charges.

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716. Pursuant to SCR 3.300 and Kentucky Rules of Civil Procedure 1, the rules of

Civil Procedure apply to Kentucky Bar Association Proceedings. SCR 3.300

states, “The Respondent shall have all the rights secured to a party by the Rules of

Civil Procedure…” Kentucky Rules of Civil Procedure 1 states, “[t]hese Rules

govern procedure and practice in all actions of a civil nature in the Court of

Justice except for special statutory proceedings, in which the procedural

requirements of the statute shall prevail over any inconsistent procedures set forth

in the Rules.”

17. Pursuant to SCR 3.240, after a Trial Commissioner for a tribunal is scheduled, a

Respondent can challenge a Trial Commissioner to sit in judgment. The rule

states: “[a]ny time, not later than ten (10) days after the appointment of a Trial

Commissioner or at such point in the proceeding that facts become known

sufficient for such challenge, the Respondent may, by motion, challenge for cause

the Trial Commissioner. If the challenge is such as might disqualify a Circuit

Judge, the Chief Justice shall relieve the challenged member and direct the

Disciplinary Clerk to immediately fill the vacancy.” This rule recognizes there

could be bias and the importance to provide a lawyer the right to object to the

appointment.

18. Eric Deters did not challenge Frank Doheny after Frank Doheny was named Trial

Commissioner because he had no basis to do so. Eric Deters did google Mr. Doheny

and checked out the Dinsmore & Shohl website prior to making the decision not to

challenge. Quite simply, Eric Deters had no basis to challenge at the appointment

stage. Plaintiff was concerned Frank Doheny was a medical malpractice defense

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8attorney since Plaintiff is a Plaintiff’s medical malpractice lawyer, but failed to see

that as a basis to object. In addition, Ben Cowgill, former Kentucky Bar counsel

informed Plaintiff he “heard” Frank Doheny was a very serious individual about

lawyer conduct, even to the extent that when he was a managing partner of a law

firm, he required all lawyers to wear their suit coats when they went out for lunch.

Again, a rumor, and no basis to seek another Trial Commissioner.

19. In the middle of the June 21 and June 22, 2010 tribunal hearing, it was revealed Trial

Commissioner Frank Doheny’s law partner, Linda Ash, took over the representation

of a couple who Eric Deters represented. This couple filed a complaint against Eric

Deters. It became a Bar Charge and the couple testified at the tribunal. The Charge

involved a $1,500 fee dispute which Eric Deters disputes. Linda Ash, it was revealed

at the tribunal, charged $25,000 to complete a legal matter for which Eric Deters was

only charging $1,500. Eric Deters can’t comprehend how this is not a basis for

recusal. Trial Commissioner Frank Doheny received, as a partner of Linda Ash, as

small as it might be, money from the couple who complained and testified against

Eric Deters. The Judge is the partner of the lawyer representing the Plaintiff is a fair

analogy. Frank Doheny has refused to voluntarily recuse himself. It is Plaintiff’s

position the conflict is obvious on its face and not even subject to debate. The

individual sitting in Judgment of Eric Deters at the tribunal is the law partner of the

lawyer representing the couple who filed the bar complaint against him! As spelled

out in the attached Motion to Recuse, there was no legal waiver of the conflict. In

addition, Plaintiff would like to point out that Linda Ash was not a witness at the

tribunal. Upon hearing about the $25,000 and her involvement, it’s prejudicial

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9Plaintiff does not have the opportunity to cross examine her. At a new tribunal, this

could take place.

20. In addition to the issue set forth in paragraph thirteen, there were other concerns

which arose during the tribunal. And, in candor, in manner and speech, Frank

Doheny came across as someone who would require lawyers to wear suit coats when

out to lunch. He was very rigid. Yet, no basis for recusal.

21. On June 28, 2010, Eric Deters wrote a letter to Bar Counsel expressing those

concerns. (Attached)

22. After receiving the transcript of the tribunal and the brief of Bar Counsel, Eric Deters

filed a Motion to Recuse Frank Doheny under KRS 26A.015. Frank Doheny refused

to recuse himself. (See Affidavit and Order attached.) This shocked Plaintiff. It

increased the concern about Frank Doheny to sit in judgment of Plaintiff. It is

Plaintiff’s position that no rational unbiased lawyer could review these bar charges

and find he did anything wrong. It’s why Plaintiff desires an unbiased lawyer as the

Trial Commissioner. Bar Counsel has shown no integrity. They have filed false

statements and false charges. (See Brief and Motions attached.)

23. Before a judicial officer may have a conflict waived, written agreement signed by

both parties to the hearing must be entered into the record. The affected judge may

not influence that waiver. The judge may not be present when the affected parties

discuss the waiver of the judge. No such written waiver or time alone has been

entered in the bar matters.

24. Eric Deters also filed a Motion to Suspend the Proceeding pending the resolution of

the recusal issue. This was overruled.

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1025. After Frank Doheny refused to recuse himself, Eric Deters prepared an Affidavit

pursuant to KRS 26A.020(1) and sent it to the Disciplinary Clerk of the Kentucky

Bar Association for filing. (See attached.) KRS 26A.020(1) is the mechanism used

when KRS 26A.015 fails. Kentucky allows both or either.

26. On December 10, 2010, Eric Deters received the attached letter from the Disciplinary

Clerk, Susan Greenwell, returning the KRS 26A.020(1) affidavit refusing to file it.

27. It is Eric Deters position that Susan Greenwell should have filed it and certified it to

the Chief Justice of Kentucky. A Trial Commissioner sits in the same position as a

Circuit Judge pursuant to the Supreme Court Rules. The Disciplinary Clerk sits in

the same position as a Circuit Clerk.

28. The Commentary to the Kentucky Code of Judicial Conduct defines a Trial

Commissioner as a judicial officer who is subject to the Code of Judicial Conduct.

“Application of the Code of Judicial Conduct, [a]nyone, whether or not a lawyer

who is an officer of a judicial system performing judicial functions, including an

officer such as a court commissioner, is a judge for the purpose of this Code.”

29. The Hon. Frank Doheny, the Trial Commissioner assigned to hear the complaint

against Eric Deters, was appointed by the Chief Justice of the Kentucky Supreme

Court with the consent of the Supreme Court. The discipline process of the

Kentucky Bar Association, is a function of the Supreme Court. Therefore it is

clear that the Trial Commissioner Frank Doheny is subject to the Code of Judicial

Conduct and the method for recusal.

30. KRS 26A.015 (2) states, “[a]ny justice of judge of the Court of Justice or master

commissioner shall disqualify himself in any proceeding: (a) [w]here he has

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11personal bias or prejudice concerning a party, or personal knowledge of disputed

evidentiary facts concerning the proceedings, or has expressed an opinion

concerning the merits of the proceeding;… (c) Where he knows that he,

individually or as a fiduciary, or his spouse or minor child residing in his

household, has a pecuniary or proprietary interest in the subject matter in

controversy or in a party to the proceeding.

31. SCR 4.010 states, “”[j]udge” means any judge or justice of the Court of Justice or

other officer of the Court of Justice performing judicial functions. In addition, where

context so requires, the term judge shall include lawyer or layperson subject to the

jurisdiction of the Commission.”

32. Further, SCR 5.050, “[a] trial commissioner shall disqualify himself in all matters in

which he has an interest, relationship or bias that would disqualify a judge.”

33. SCR 3.225 states, “[t]he Chief Justice shall appoint, subject to the approval of the

Supreme Court, from among the membership of the Bar Association, a Trial

Commission. Members of the Trial Commission shall be lawyers licensed in the

Commonwealth who possess the qualifications of a Circuit Judge.”

34. The fee of $25,000.00 charged by his law firm by his law partner, gives Trial

Commissioner Doheny a financial interest in the outcome.

35. Further, Canon 2 of the Code of Judicial Conduct imposes on all judicial officers

a duty of impartiality in sitting on cases coming before them, “[a] judge shall

respect and comply with the law and shall act at all times in a manner that

promotes public confidence in the integrity and impartiality of the judiciary…”

36. The Trial Commissioner’s law partner is currently representing the party who has

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12filed the complaint before the KBA against Plaintiff Eric Deters.

37. Further, the complaint against Eric Deters alleges an excessive fee. Yet, the Trial

Commissioner’s current law partner has charged the same client a fee that is 16.6

times greater than the fee charged by Eric Deters. ($25,000) The appearance of

impartiality is raised when Eric Deters is alleged to have charged an excessive fee

($1,500) when the Trial Commissioner’s law firm charged a fee that makes his

pale in comparison.

38. The Chief Justice is required to replace the judicial officer when such a

disqualification exists. KRS 26A.015(3)(a) states, “[a]ny justice or judge of the

Court of Justice disqualified under the provisions of this section shall be replaced

by the Chief Justice.”

39. On December 17, 2010, Eric Deters sent the Affidavit to Susan Stokley Clary, the

Clerk of the Kentucky Supreme Court, for filing. It was received on December 20 by

the Clerk. (See attached letter.)

40. Ashley Bolender a lawyer in Eric Deters office, had conversation on the phone with a

clerk in the Clerk’s office to check on the affidavit. (The attached memorializes the

conversation.)

41. On December 27, 2010, Eric Deters sent the Affidavit directly to Chief Justice

Minton when it appeared the Supreme Court Clerk was not going to file it. (See

attached letter.)

42. The December 17 letter and the December 27 letter were sent by Federal Express

next day delivery.

43. On December 28, Chief Justice Minton signed a “Filing of Unauthorized Pleadings”

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13and the Affidavit was sent back to Eric Deters. This would have been the same day

the Chief Justice received the filing.

44. Pursuant to the SCR 3.360, Frank Doheny is to make his Recommendation thirty

days from the Reply Brief which was filed on December 17. Therefore, Frank

Doheny is to make his Recommendation between now and January 16, 2011 or

January 18 based upon the calendar for the weekend and MLK, Jr. Day. Therefore,

time is of the essence. This dispute is ripe for review. Plaintiff has exhausted all

processes under state law. Plaintiff asserts the Defendants are refusing to perform

their required duties in the recusal process. This lawsuit and the relief it seeks is

necessary to force the Defendants by Order to perform their duties. Plaintiff is

concerned any moment, Frank Doheny will issue his recommendation and its

Plaintiff’s position he should not be allowed to do so until the recusal is heard. In

addition, if the Recommendation is rendered, this matter still must be heard because

after the Recommendation, the Board of Governors and Kentucky Supreme Court are

involved. The purpose of this filing and injunctive relief now is that the

Recommendation is the first public document in the discipline process.

45. Based upon all of the above paragraphs, Eric Deters finds himself in the position of

despite having a Trial Commissioner with a serious conflict; no one will

independently review that conflict as required by Kentucky law.

V. Violation of 42 U.S.C. Section 1983

46. The Plaintiff has, as a citizen of the United States, the right guaranteed by Fourteenth

Amendment to the Constitution of the United States to pursue his chosen profession,

avocation and occupation free from reprisal for exercising his First Amendment

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14rights, to appear before the Kentucky Supreme Court as a member of the bar of that

Court, and to have his tribunal and Bar Charges decided by a fair, independent and

impartial trial commissioner.

47. The Defendants, and all those in active concert or participation therewith, have

deprived, and continue to deprive, the Plaintiff’s rights by refusing to certify the

recusal affidavit and have it reviewed and decided on its merit.

48. No proceeding is pending in State Court, such that any form of abstention would

apply to this case.

49. There is no parallel State proceeding, nor any decision or order of a State Court,

which would divest this Court of jurisdiction under the

50. Plaintiff has the right to bring this suit in his individual capacity in order to preserve

his own constitutional rights.

Rooker-Feldman doctrine.VI. Equity

51. Insofar as the equitable relief sought in this action is concerned, the Plaintiff has no

adequate remedy at law, or will suffer immediate, continuing and irreparable

damage, injury and loss, unless the equitable relief sought in the Plaintiff’s prayer for

relief is granted.

52. Plaintiff submits to the jurisdiction of this Court and, at all times, offers to do equity.

53. Plaintiff comes before this Court with clean hands.

54. Plaintiff alleges that the nature of his injuries, are injuries for which compensation

cannot be made by an award of monetary damages.

55. The threat that the Plaintiff cannot, and will not, receive a fair hearing before an

impartial and independent tribunal is real, immediate, and continuing.

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15VII. Immunity

56. Judicial immunity does not preclude suit for prospective relief such as an injunction.

Pulliam v. Allen

(1984).

, 466 U.S. 522, 541-42, 104 S.Ct. 1970, 1980-81, 80 L.Ed.2d 565VIII. First Amendment Rights

57. The Plaintiff is an attorney in good standing in the state of Kentucky. He also is the

backup host, weekend host and recent interim night host on Cincinnati, Ohio radio

station known as 700 WLW. He often speaks of political issues while on the air.

One of the bar charges involve statements he made on 700 WLW relative to the

actions of Judge Stephen Bates, the Grant County Kentucky Circuit Court Judge.

(See Brief which details how Judge Bates issued a Summary Judgment and Plaintiff

received a Rule 11 on the same day as the Summary Judgment. Plaintiff believes the

attorneys received inside information from Judge Bates and his office. In the history

of law has a Rule 11 been filed the same day as a Summary Judgment been entered?

The affidavits were already prepared months before the Summary Judgment.)

58. Plaintiff desires, to state his honest, candid and political views of judicial personnel

during his radio broadcasts without the threat of penalty from the Kentucky Bar

Association. The only two Judges Plaintiff has spoken factually about is Judge Bates

and the bias of Judge Summe who has close political connections to Garry

Edmondson and Rob Sanders. Judge Summe worked on Garry Edmondson’s first

campaign; her sister Gabrielle worked there and was involved in his campaign. Her

nephew works in Rob Sanders office. Chris Nordloh works for Garry Edmondson.

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16Despite these conflicts, she had no problem sanctioning Plaintiff $30,000. Plaintiff

has repeatedly stated on air how outstanding the tri-state judges are and how the

federal court system is something the federal government does well. I don’t trash

judges on the radio. I praise.

59. The Kentucky Bar Association has charged Plaintiff for speaking candidly about

what he believes could be a potentially politically corrupt situation and as such he

has been penalized all of which flies in the face of the First and Fourteenth

Amendments to The Constitution of The United States. The Kentucky Bar

Association seeks to limit such speech all in violation of Mr. Deters guaranteed

rights to free speech under the First and Fourteenth Amendments of the Constitution

of the United States.

60. On its face, SCR 3.130-8.2(a) is an unconstitutional content-based restriction that

does not serve a compelling governmental interest, nor is it narrowly tailored to serve

a governmental interest.

61. Plaintiff desires, to state his honest, candid and political views of judicial

personnel during his radio broadcasts without the threat of penalty from the

Kentucky Bar Association. He is uncertain of the comments he can make,

realizing that all such comments shall be true and not made recklessly or falsely,

without penalty and desires an answer as to what “statements” are acceptable

under SCR 3.130. Plaintiff has proven, as reflected by his Brief, every statement

he made about Judge Bates was true. Plaintiff knows he can’t slander or make

false statements about anyone. And he doesn’t.

62. The Kentucky Bar Association has charged Plaintiff for speaking candidly about

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17what he believes could be a potentially politically corrupt situation and as such he

has been penalized all of which flies in the face of the First and Fourteenth

Amendments to The Constitution of The United States. SCR 3.130 encourages

candid opinions while the Kentucky Bar Association seeks to limit such speech

all in violation of Mr. Deters guaranteed rights to free speech under the First and

Fourteenth Amendments of the Constitution of the United States.

63. The SCR 3.130 requirement violates the free speech and association rights of the

attorney. Attorneys are therefore presumed, under SCR 3.130, to not be able to

speak any type of criticism about a judicial officer despite the truthfulness of the

statement. By interpreting that the ban on critical speech is absolute, an attorney

cannot speak while a lay-person can made any such statement even though an

attorney is in a position to far better know facts of truth and provide information

improving the administration of justice. This action places a curtain over the

ability of the attorney to exercise free speech.

64. SCR 3.130 states that a lawyer shall not make a statement that the attorney knows

to be false or with reckless disregard of the truth. Plaintiff has not made any false

statements, yet was still charged.

65. A law is vague if it is not sufficiently defined so that ordinary people exercising

ordinary common sense can understand it and avoid conduct, which is prohibited,

without encouragement of arbitrary and discriminatory encouragement.

66. SCR 3.130 (8.2) does not adequately define its terms as to Plaintiff who wishes to

engage in constitutionally protected speech by giving views on disputed legal

issues, candid personal views and political corruption. The Plaintiff believes that

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18such a rule prevents him from making any such comments thereby chilling his

right to free speech and creating an unconstitutional regulation of protected

political speech under the First and Fourteenth Amendments of the Constitution

of The United States.

67. A law is overbroad if it prohibits more speech or less speech than is necessary to

achieve the drafter’s purpose.

68. SCR 3.130 sweeps constitutionally protected comments of personal views on

disputed legal and political issues within the sphere of prohibited speech. This is

overbroad and an unconstitutional regulation of protected political speech under

the First and Fourteenth Amendments.

69. SCR 3.130 (8.2) states that a lawyer shall not make a statement that the lawyer

knows to be false or with reckless disregard as to its truth. However, the rule

does not make a clear provision for protecting a statement that is true and not

made with reckless disregard thereby limiting the protected speech of the First

and Fourteenth Amendments of the Constitution of the United States.

70. Plaintiff wishes to speak his views on disputed truthful legal issues. Such item

about judicial philosophy are protected speech. However, SCR 3.130 (8.2)

sweeps all critical speech into the sphere of unconstitutional.

71. SCR 3.130 sweeps attorneys personal views on disputed legal issues and rulings

into a sphere of speech prohibited by the Kentucky Bar Association and thus

constitutes an unconstitutionally overbroad application of the rules governing

judicial and legal officers’ speech and association, and are in direct violation of

the First and Fourteenth Amendments of the Constitution of The United States.

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1972. The Plaintiff’s comments on the radio broadcast were not made with any degree

of falsity or recklessness. The Plaintiff had participated in several judicial matters

in Grant County Circuit Court and had a first hand knowledge of what he

reasonably believed had occurred. He did not knowingly make false statements

and continues to believe his statements were fair, well founded and accurate.

(See Brief.)

73. Application of SCR 3.130 (8.2) to the Plaintiff has, however chilled his right to

make such reasonable statements thereby limiting any freedoms under the First

and Fourteen Amendments of the Constitution of The United States.

74. The KBA has charged Plaintiff with violating the “statement” clause of SCR

3.130 (8.2) In fact, Bar Counsel made countless false statements in the charges

against Plaintiff including the allegation Plaintiff made false statements. This is

one of the basis Plaintiff challenges the immunity of Bar Counsel.

75. The Kentucky Bar Association issued a charge against the Plaintiff stating that

speech of the nature propounded by the Plaintiff was in violation of the SCR

3.130. The KBA has issued such a charge without determining if the speech was

truthful and therefore protected even as to the current SCR 3.130.

76. SCR 3.130 has been interpreted, therefore, by the KBA to mean “any speech” in a

judicial criticism is prohibited thereby clearly flying in the face of the First and

the Fourteenth Amendments of the United States Constitution.

77. SCR 3.130 sweeps an attorneys comments in a sphere of speech prohibited by the

KBA and thus constitutes and unconstitutionally overbroad application of the

rules governing the activities of attorneys in the state of Kentucky.

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2078. This is a civil action for declaratory and injunctive relief arising under the First

and Fourteenth Amendments to the Constitution of the United States. It concerns

various provisions of the Kentucky Supreme Court Rules of attorney conduct as

set forth in Kentucky Supreme Court Rule 3.130 (8.2), including, in particular,

A. SCR 3.130 (8.2) on its face as applied to statements made by the Plaintiff,

wherein he desires to publicly discuss and wants to be permitted to make

political statements, [hereinafter “the statements”];

B. SCR 3.130 as applied to the statements made by Plaintiff is extremely

vague;

C. SCR 3.130 is both facially and overbroad as applied to Plaintiff;

D. SCR 3.130 as interpreted by the KBA, all adopted and interpreted by the

Kentucky Bar Association and all as incorporated by reference into the

Kentucky Rules of Professional Conduct.

79. SCR 3.130 states in relevant part: “A lawyer shall not make a statement that the

lawyer knows to be false or with reckless disregard as to its truth or falsity

concerning the qualifications or integrity of a judge, adjudicatory officer or public

legal officer, or of a candidate for election or appointment to judicial or legal

office . . . The quoted language is hereinafter referred to as the “Statement

Clause.”

80. Plaintiff complains that the aforesaid provision of SCR 3.130 (8.2) on its face and

as applied to the disciplinary process, is unconstitutional because it infringes upon

constitutionally protected free speech and association; because it chills an

attorney’s free speech by prohibiting an attorney from expressing any negative

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21views on legal issues, judicial personnel, actions and political views; and because

it does so through a vague and overly-broad prohibition.

81. SCR 3.130 (8.2) requires, at the cost of harsh attorney discipline from the

Kentucky Bar Association, that an attorney not make a statement that is

“knowingly” false. The rule would seem to indicate that a statement could be

made if it is true. However, the rule as applied to the Plaintiff makes a

prohibition against making any statement other than a complimentary or positive

statement . . . no statement can be made with any hint of negativity.

82. Plaintiff complains that the SCR 3.130 (8.2) requirement as applied to him, chills

and penalizes his constitutional right for making any statement whether true or

false in violation of his First and Fourteen Amendment rights to freedom of

speech and association. Specifically, the knowingly false requirement is not

narrowly tailored to serve a compelling interest so that any statement made will

be subjective in nature and could and usually is randomly be interpreted in a

negative light.

83. Plaintiff complaints that the false doctrine portion of SCR 3.130 (8.2) penalizes and

attorney who does speak truthfully about a judicial officer or candidate and

essentially limits all speech while the commentary to the rule sec. (a) states:

Expressing honest and candid opinions on such matters contributes to improving the

administration of justice. Conversely, false statements by a lawyer can unfairly

undermine public confidence in the administration of justice. The rule thereby states

that an honest opinion is acceptable but the Kentucky Bar Association has viewed an

honest opinion as negative.

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 21 of 26 – Page ID#: 21

2284. Additionally, SCR 3.130 (8.2) does not adequately define terms, is vague, is

overbroad and has a chilling effect of the right of free speech. The rule facially and

as applied prevents Plaintiff from making any political comments creating an

unconstitutional regulation of protected political speech under the First and

Fourteenth Amendments of the Constitution of The United States.

IX. Injunctive Relief

85. FRCP 65 provides the basis for injunctive relief, including restraining orders.

Plaintiff seeks a restraining order, preliminary and permanent injunctive relief.

86. This Verified Complaint here under RRCP 65(b)(1) states specific facts which

clearly show immediate and irreparable injury, loss, or damage before the adverse

parties can be heard. See paragraph 43 and 44.

87. Based upon the “any minute a decision,” there is no time to give notice for a hearing.

A hearing can be set at a convenient date and time for everyone on the injunction

request. Plaintiff has sent this lawsuit to Sarah Coker, bar counsel handling these

charges and Frank Doheny, the trial commissioner.

88. Connection Distributing Co. v. Reno, 154 F.3

basis for a preliminary injunction and Plaintiff pleads the elements:

A. Plaintiff has a likelihood of success on the merits. A review of the facts and

law make it clear the recusal must be heard.

B. Plaintiff will suffer irreparable harm without the restraining order or

injunction. A trial commissioner with a conflict will issue a recommendation

without the injunction.

C. The granting of the restraining order or injunction will not cause substantial

rd 281, 288 (6th Cir. 1998), provides theCase: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 22 of 26 – Page ID#: 22

23harm to others. Plaintiff is in good standing. He’s been practicing law during the

years these matters have been going through the discipline process. There is no harm

to anyone if the injunction is granted.

D. There is no impact on the public interest by the granting of the injunction.

This is obvious on its face.

X. Bar Counsel Immunity

89. Pursuant to SCR 3.160(4) bar counsel by order of the Supreme Court is granted

immunity. The rule states, “[n]either the Association, the Board, the Director, the

Inquiry Commission, the Trial Commission, the Office of Bar Counsel, nor their

officers, employees, agents, delegates or members shall be liable, to any person or

entity initiating a complaint or investigation, or to any member of the bar or any

other person or entity being charged or investigated by, or at the direction of, the

Inquiry Commission, for any damages incident to such investigation or any

complaint, charge, prosecution, proceeding or trial.”

90. Plaintiff believes immunity must be provided for by the Constitution, legislative act

or Court decision, not by Order. In this matter, Bar Counsel has filed false

statements against Plaintiff and has even admitted one Charge was false. Plaintiff

believes Bar Counsel, as lawyers, should at least be subject to Rule 11 motions.

(Plaintiff has filed one in this case.)

Prayer For Relief

WHEREFORE, Plaintiff prays that this Court grant the following relief:

1. A restraining Order preventing Frank Doheny from making a recommendation.

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242. An injunction staying the Bar Proceedings against him until this matter is heard on

its merits.

3. A declaratory judgment that the word “judge” in KRS 26A.015 includes the Trial

Commissioner.

4. For an Order requiring the Defendants to perform their duties in the recusal process

and certify and accept the filing under KRS 26A.020 to recuse the Trial

Commissioner, or in the alternative an order recusing the Trial Commissioner.

5. A declaratory judgment that SCR 3.130 (8.2) does not prohibit truthful political

speech, or, in the alternative, that the court rule is unconstitutional, on its face, or as

applied;

6. An order awarding Plaintiff’s costs, and attorneys’ fees;

For all other relief to which he is entitled.

/s/Eric C. Deters

ERIC C. DETERS, ESQ. (#81812)

5247 Madison Pike

Independence, Kentucky 41051

(859) 363-1900 – telephone

(859) 363-1444 – facsimile

eric@ericdeters.com

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