Federal Judge Dismisses John M. Berry Jr. Claim Against Ky. Bar Association but His ruling Limiting the Jurisdiction of the Federal Courts to review State Bar Rules, is Contrary to a Ruling of the U.S. Supreme Court

By LawReader Senior Editor Stan Billingsley                 April 12, 2011

(Authors Disclaimer:  In light of the ruling discussed herein, the author states that he has made every effort to speak accurately and truthfully on this subject.  We have reviewed it for any possible challenges to the “integrity or qualifications for office” of any “Judge or public legal officer” and we find none.  While we question the legal reasoning of Federal Judge Reeves, we do not in any manner question his integrity or qualifications for office.)

On Apirl 12, 2011 U.S. District Judge Danny Reeves ruled in the Section 1983 civil rights action filed by John M. Berry Jr. and the ACLU,  against the Ky. Bar Association, that the limitations on free speech imposed by the SCR 3.130 (8.2) upon Kentucky lawyers was not within the subject-matter jurisdiction of the Federal Courts.     See Judge Reeves ruling: John Berry Federal Court of Appeals Case

(Note:  The last page of Judge Reeves ruling (page 16 of a 16 page ruling) was lost in transmission and will be posted shortly.)

We have reviewed the authorities cited by Judge Reeves. Our review suggests that the planned appeal by Berry and the ACLU to the Sixth Circuit Court of Appeals is mandated.  Rulings of  Federal Appeallate Courts and the U.S. Supreme Court appear to recognize jurisdiction of Federal Courts to hear constitutional challenges of state bar rules.

Federal Judge Danny Reeves dismissed John M. Berry, Jr.’s  challenge of  a State Bar Rule.  He concluded that his court had no subject-matter jurisdiction over State Bar Rules.

This  legal reasoning appears to be contrary to a ruling of the U.S. Supreme Court in Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)  which held:

United States district courts do have subject-matter jurisdiction over general challenges to state bar rules promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case.

The case of John Berry Jr. was only considered by the secretive Inquiry Commission.  Berry was not allowed to be present.  The action of the Inquiry Commission of the Ky. Bar Association was final and but was not appealable by Berry.

Judge Reeves frequently cited the 60 year old Rooker-Feldman doctrine to find that the Federal District Court had no subject-matter jurisdiction of Berry’s constitutional challenge to a Kentucky Supreme Court Rule which limits the free speech of lawyers.   The Eleventh Circuit Court of Appeals discussed the danger in extending Rooker-Feldman to exclude claims.  See discussion below.

The essential elements of the Berry case involved an interpretation of SCR 3.130 (8.2) which forbids an attorney to make “false” statements about the “integrity” or “qualifications for office” of a judge or public legal officer. 

 In 2007 John M. Berry, jr. a former State Senator and former Majority Leader of the Kentucky State Senate, wrote a letter to the Legislative Ethics Commission. 

Berry wrote about a ruling the LEC had made in dismissing a claim of improper fundraising by Senate President David Williams.  The LEC ruled that while some of Sen. Williams employees may have violated the rules, that Williams himself had not violated any ethical rule.  (Williams as Senate President appointed at least three of the board members who heard his case.)

Subsequent to the ruling of the LEC, John M. Berry Jr. wrote a letter to the LEC (after it was final and no longer “pending” ) and presented them with a legal argument which questioned their findings.  Kentucky court rulings have held that the rule cited against Berry did not apply unless the statement was made during a pending case.

 He made no threats in the letter, there was no disrespect or profanity in the letter.  We find no language in the letter which questions the integrity of anyone.


After receipt of the letter LEC member Paul Gudgel,  a former Ct. of Appeals judge, reported Berry’s letter to Linda Gosnell the KBA Bar Counsel.  As a result the Bar Counsel began an investigation of  Berry’s letter.   

The Inquiry Commission almost two years after the letter was sent, ruled that Berry had violated SCR 3.130 (8.2).   We have reviewed their findings and they don’t specifically say what it was about the Berry Letter (which is posted on LawReader) that violated SCR 3.130. 

The KBA concluded that his letter was “inappropriate”.   That is not a legal term found in the SCR.

The BAR issued an official Warning Letter and placed it in Berry’s KBA personnel file and said it would be destroyed after one year (of good conduct by Berry).  If any additional charges were brought against Berry then if the Warning Letter was still in existence, the penalty for a new charge could be enhanced.

 (Apparent  Message:  Keep quiet or we will really get you next time. Berry argued that this was a chilling effect on his First Amendment Right to Free Speech.)

Today, Judge Reeves dismissed the Federal Civil Rights action filed by Berry and the ACLU.  He found that the U.S. District Court had no jurisdiction of this First Amendment claim as it involved an ethics issue before the Bar Association.

He reasoned that the KBA Inquiry Commission was a “state court”.  He acknowledged that Berry had no right to an appeal from the findings of the Inquiry Commission.

We have read Judge Reeves ruling where he ruled that Federal Courts do not have subject matter jurisdiction over challenges to state bar rules.   Judge Reeves did not cite a contrary ruling of the United States Supreme Court issued in 1983.  The following decision seems directly contrary to Judge Reeve’s ruling.

Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)

” United States district courts have no jurisdiction over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court’s action was unconstitutional. Review of those decisions may be had only in this Court.  (Meaning the U.S. Supreme Court.)

Thus, to the extent that respondents sought review in the District Court of the District of Columbia Court of Appeals’ denials of their petitions for waiver, the District Court lacked subject-matter jurisdiction over their complaints.

 But United States district courts do have subject-matter jurisdiction over general challenges to state bar rules promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case.”

Judge Reeves ruling has become a national news story. (We found a story about the decision in a Danbury, Connecticut  newspaper.)

Public comments by attorneys in Kentucky may be restricted as part of a general effort to uphold public confidence in the judiciary, “even if the remarks are true but considered reckless”, a federal judge ruled Tuesday.

U.S. District Judge Danny C. Reeves found that the Kentucky Supreme Court‘s regulations as enforced by the state bar association on attorney speech are constitutional.

Although the rule extends to some constitutionally protected speech — namely, reckless true statements — it does not reach a substantial number of impermissible applications,” Reeves wrote in the 16-page decision.”

“Berry, a Henry County lawyer, former state senator and brother of writer Wendell Berry, sued the Kentucky Bar Association in 2009 after receiving a letter saying he “did not adequately comply” with an ethics rule on false statements. The letter, which was kept in Berry’s file for a year, advised him to “conform your conduct to the requirements of the Rules of Professional Conduct.”

“The dispute was over Berry’s criticism of the ethics commission decision to dismiss a complaint in 2007 against Kentucky Senate President David Williams involving campaign money solicited from Frankfort lobbyist. The commission ruled Williams’ Senate aides innocently erred by asking lobbyists for up to $50,000 each at a fundraising luncheon for Senate Republicans. State law bans lobbyists from giving to state legislative campaigns.”

Berry sent a letter to the commission, then shared it with reporters, prompting a complaint by ethics commissioner and retired state Court of Appeals chief judge Paul Gudgel. Gudgel told the bar that “intentionally impugning the reputation” of a commission member “to advance his own agenda” was improper.  Apparently lawyers on the Legislative Ethics Commission were entitled to have their agenda, but a lawyer who questioned the wisdom of their ruling is not allowed to have an agenda.

One must conclude that Members of the Legislative Ethics Commission  (a creature of the Legislature) are now declared a class protected by a Rule of the Kentucky Supreme Court. 

The language of the rule applies to “judges and public legal officers”, the term “public legal officer” is not defined by the rule.  Other court decisions appear to apply this rule only to “pending cases”.  Berry’s letter was written after the conclusion of the hearings by the LEC.

After a 15-month professional conduct investigation, the bar (found Berry guilty of a violation of SCR 3.130 (8.2) and issued a Warning Letter and then dismissed Gudgel’s complaint.  This action by the KBA prevented Berry from having the right to appeal their action. 

We recall a favorite saying of the late Chief Justice Robert Stephens, who often said, “Under the new judicial article, every person has the right to at least one appeal.”   Berry was not granted the right to appeal…not even once.  This right to one appeal is found in the Ky. Constitution as Section 115.

Berry was never granted a hearing, was never was provided with all the evidence against him and never learned from the BAR who his accuser was.  Our exhaustive search of the papers has not revealed any findings of fact which explain how this rule was violated by Berry’s letter.  

He has not been told what portion of his letter was “false” or what part of his letter “questioned the integrity or qualifications for office” of a member of the protected class.  We have read the Berry letter many times looking for a false statement or a statement questioning the integrity or qualifications of any member of the Legislative Ethics Commission.  One would think that if the BAR had found a false statement in Berry’s letter that they would have pointed this out more clearly.

“On its face, the rule does not bar honest, informed criticism,” Reeves wrote. “It merely requires lawyers to speak with greater care and civility than is the norm in political debate.”  (???)

The reason cited for dismissal by Judge Reeves was that :

“Under the Rooker-Feldman doctrine, the Court lacks subject-matter jurisdiction over Berry’s as-applied challenge to Kentucky Supreme Court Rule 8.2(a). Furthermore, Berry’s facial challenge to Rule 8.2(a) fails because the rule is narrowly tailored o serve a compelling state interest.”

Reeves also found that federal courts have no jurisdiction to overturn state bar association disciplinary actions, no matter what form the discipline takes”

In 2009 the Eleventh Circuit Court of Appeals discussed the limits of the shaky old  Rooker-Feldman doctrine in the following case:

    Nicholson v. Shafe, 558 F.3d 1266 (11th Cir., 2009)This appeal calls upon us to address the scope of the Rooker-Feldman1 doctrine, which provides that “lower federal courts are precluded from exercising appellate jurisdiction over final state-court judgments.” Lance v. Dennis, 546 U.S. 459, 463, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006). The Supreme Court has only applied the Rooker-Feldman doctrine as a bar to jurisdiction on two occasions, the first instance being Rooker and the second instance being Feldman. Recently, in Exxon Mobil Corporation v. Saudi Basic Industries Corporation, 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005), the Supreme Court addressed the scope of the Rooker-Feldman doctrine, holding that it “is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Id. at 284, 125 S.Ct. 1517.

We review dismissals for lack of subject matter jurisdiction de novo. Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir.2006).

 A. The Rooker-Feldman Doctrine

        Generally speaking, the Rooker-Feldman doctrine bars federal district courts from reviewing state court decisions.

The Supreme Court stated in Exxon Mobil that the Rooker-Feldman doctrine “has sometimes been construed to extend far beyond the contours of the Rooker and Feldman cases” and it should be “confined to cases of the kind from which the doctrine acquired its name.” Exxon Mobil, 544 U.S. at 283, 284, 125 S.Ct. 1517.

Approximately 60 years after Rooker, the Supreme Court decided Feldman. There, two disappointed applicants to the District of Columbia bar filed separate lawsuits in the United States District Court for the District of Columbia after the District of Columbia Court of Appeals refused to waive a court rule that required District of Columbia bar applicants to have graduated from an accredited law school approved by the American Bar Association. Neither plaintiff graduated from an accredited law school.

The district court determined that it lacked jurisdiction to hear their claims, but the United States Court of Appeals for the District of Columbia reversed in part, concluding that the waiver proceedings in the District of Columbia Court of Appeals were not judicial proceedings.

The Supreme Court granted certiorari.

        Having determined that the proceedings surrounding the plaintiffs’ waiver petitions in the District of Columbia Court of Appeals were judicial in nature, the Supreme Court concluded that a federal district court has “no authority to review final judgments of a state court in judicial proceedings.” Feldman, 460 U.S. at 482, 103 S.Ct. 1303. “Review of such judgments may be had only in [the United States Supreme Court].” Id.

The Supreme Court drew a distinction between general challenges to the constitutionality of state bar rules and challenges to state court decisions in particular cases that raise federal constitutional questions, finding that a federal district court has jurisdiction to consider the former but not the latter. Id. at 485-86, 103 S.Ct. 1303.

In other words, the Supreme Court determined that THE FEDERAL DISTRICT COURT HAD JURISDICTION TO CONSIDER THE GENERAL ATTACK ON THE CONSTITUTIONALITY OF THE D.C. BAR RULE REQUIRING GRADUATION FROM AN ACCREDITED LAW SCHOOL but that it lacked jurisdiction to hear the allegations “inextricably intertwined with the District of Columbia Court of Appeals’ decisions, in judicial proceedings, to deny the respondents’ petitions.” Id. at 486-87, 103 S.Ct. 1303.

Building on this foundation, the Eleventh Circuit set forth a four-factor test to guide the application of the Rooker-Feldman doctrine, finding that it bars federal court jurisdiction where:

        (1) the party in federal court is the same as the party in state court, see Roe v. Alabama, 43 F.3d 574, 580 (11th Cir. 1995);

(2) the prior state court ruling was a final or conclusive judgment on the merits, see David Vincent, Inc. v. Broward County, 200 F.3d 1325, 1332 (11th Cir.2000);

 (3) the party seeking relief in federal court had a reasonable opportunity to raise its federal claims in the state court proceeding, see Dale v. Moore, 121 F.3d 624, 626 (11th Cir.1997) (per curiam); and (4) the issue before the federal court was either adjudicated by the state court or was inextricably intertwined with the state court’s judgment, see Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332 (11th Cir. 2001).

(LawReader Comment: None of the issues raised by John Berry were litigated by a state court.  Judge Reeves concludes that the (secret) action of the Inquiry Commission (from which Berry was excluded) was a “state court ruling”.

Under test No. 3 above, the Rooker-Feldman doctrine does not apply since Berry never had “a reasonable opportunity to raise (his)…federal claim in the state court proceeding.”)

“The Supreme Court held that the Rooker-Feldman doctrine is “confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Id. at 284, 125 S.Ct. 1517.

Drawing on the facts of Rooker and Feldman, the Supreme Court delineated the scope of the Rooker-Feldman doctrine: when the “the losing party in state court file[s] suit in federal court after the state proceedings end[], complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment.” Id. at 291, 125 S.Ct. 1517.

The Court noted that parallel state and federal litigation does not trigger the Rooker-Feldman doctrine “simply by the entry of judgment in state court.” Id. at 292, 125″

A year after Exxon Mobil, the Supreme [558 F.3d 1279] Court referred to it as a “limited doctrine.” See Lance, 546 U.S. at 464, 126 S.Ct. 1198 (“Neither Rooker nor Feldman elaborated a rationale for a wide-reaching bar on the jurisdiction of lower federal courts, and our cases since Feldman have tended to emphasize the narrowness of the Rooker-Feldman rule.”).

After all, “[s]ince Feldman, [the Supreme Court] has never applied Rooker-Feldman to dismiss an action for want of jurisdiction.” Exxon Mobil, 544 U.S. at 287, 125 S.Ct. 1517.

Therefore, we reverse the district court’s dismissal of the Appellants’ case for lack of subject matter jurisdiction by way of the Rooker-Feldman doctrine” 


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