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.
SEE FOR YOURSELF THE JOHN BERRY LETTER WHICH RESULTED IN A KBA SANCTION. Read Story
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.
“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: