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:
v. : Judge:
BRUCE K. DAVIS :
Kentucky Bar Association :
514 West Main Street :
Frankfort, KY 40601 :
KENTUCKY BAR ASSOCIATION :
514 West Main Street :
Frankfort, KY 40601 :
Serve: Bruce K. Davis :
SUSAN GREENWELL :
Disciplinary Clerk :
Kentucky Bar Association :
514 West Main Street :
Frankfort, KY 40601 :
SUSAN STOKLEY CLARY :
Clerk of Supreme Court :
700 Capital Ave. :
Room 235 :
Frankfort, Ky 40601-3415 :
CHIEF JUSTICE JOHN D. MINTON, JR. :
Chief Justice of Kentucky :
Supreme Court :
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 1 of 26 – Page ID#: 1
2−700 Capital Ave. :
Room 235 :
Frankfort, Ky 40601-3415 :
FOR DECLARATORY AND INJUNCTIVE RELIEF
Comes now, Eric Deters, by and through his own counsel, states as follows:
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
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.
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
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 2 of 26 – Page ID#: 2
3−States 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
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
10. Accusing Plaintiff of naming Henry Fischer a Defendant in the jail battle case. In
their Reply Brief, Bar Counsel finally admitted their mistake.
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 3 of 26 – Page ID#: 3
4−11. Accusing Plaintiff of soliciting representing Richard Clise without his permission.
Plaintiff proved he only represented Stacey Clise and referred Richard Clise to Andy
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
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.
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 4 of 26 – Page ID#: 4
5−This 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
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 5 of 26 – Page ID#: 5
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 6 of 26 – Page ID#: 6
7−16. 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
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
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 7 of 26 – Page ID#: 7
8−attorney 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
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 8 of 26 – Page ID#: 8
9−Plaintiff 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
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.
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 9 of 26 – Page ID#: 9
10−25. 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
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 10 of 26 – Page ID#: 10
11−personal 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
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 11 of 26 – Page ID#: 11
12−filed 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
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
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”
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 12 of 26 – Page ID#: 12
13−and 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
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 13 of 26 – Page ID#: 13
14−rights, 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.
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 14 of 26 – Page ID#: 14
56. Judicial immunity does not preclude suit for prospective relief such as an injunction.
Pulliam v. Allen
, 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.
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 15 of 26 – Page ID#: 15
16−Despite 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
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 16 of 26 – Page ID#: 16
17−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. 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
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 17 of 26 – Page ID#: 17
18−such 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.
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 18 of 26 – Page ID#: 18
19−72. 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.
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.
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 19 of 26 – Page ID#: 19
20−78. 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
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
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
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 20 of 26 – Page ID#: 20
21−views 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
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
22−84. 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
23−harm 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.
Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 23 of 26 – Page ID#: 23
24−2. An injunction staying the Bar Proceedings against him until this matter is heard on
3. A declaratory judgment that the word “judge” in KRS 26A.015 includes the Trial
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
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