case number: 4:08-cv-102 - turtle talk · united states district court district of north dakota...

UNITED STATES DISTRICT COURT DISTRICT OF NORTH DAKOTA

SOUTHWESTERN DIVISION Vance Gillette, ) ) Plaintiff, ) CASE NUMBER: 4:08-CV-102 ) vs. ) ) N.D. Disciplinary Board )

Counsel, Brent Edison, ) ) Defendant. )

_________________________________________________

MEMORANDUM IN SUPPORT

OF MOTION TO DISMISS _________________________________________________

State of North Dakota Wayne Stenehjem Attorney General By: Douglas A. Bahr Solicitor General

N.D. Bar ID No. 04940 Office of Attorney General 500 North 9th Street Bismarck, ND 58501-4509 Telephone (701) 328-3640 Facsimile (701) 328-4300

Attorneys for Defendant.

Case 4:08-cv-00102-DLH-CSM Document 6 Filed 12/17/2008 of 17

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TABLE OF CONTENTS AND AUTHORITIES

Page(s) Statement of the Case ......................................................................................................... 1 Argument.............................................................................................................................. 1 I. There is an established North Dakota judicial process to discipline attorneys.......... 1 N.D. Const. art. VI ..................................................................................................... 1 N.D.R. Lawyer Discipl. 3.1 ........................................................................................ 1 N.D.R. Lawyer Discipl. 2.4(E) ............................................................................... 2, 3 N.D.R. Lawyer Discipl. 3.1(B) ................................................................................... 2 N.D.R. Lawyer Discipl. 3.1(C) ............................................................................... 2, 3 N.D.R. Lawyer Discipl. 3.1(D)(1)............................................................................... 2 N.D.R. Lawyer Discipl. 3.1(D)(2)............................................................................... 2 N.D.R. Lawyer Discipl. 3.1(D)(3)............................................................................... 2 N.D.R. Lawyer Discipl. 3.1(D)(4)............................................................................... 2 N.D.R. Lawyer Discipl. 3.1(D)(5)............................................................................... 3 N.D.R. Lawyer Discipl. 3.1(D)(6)............................................................................... 3 N.D.R. Lawyer Discipl. 3.1(D)(7)............................................................................... 3 N.D.R. Lawyer Discipl. 3.1(D)(8)............................................................................... 3 N.D.R. Lawyer Discipl. 3.1(D)(9)............................................................................... 3 N.D.R. Lawyer Discipl. 3.1(E)(1) ........................................................................... 3, 4 N.D.R. Lawyer Discipl. 2.3(B) ................................................................................... 4 N.D.R. Lawyer Discipl. 3.1(E)(2) ............................................................................... 4 N.D.R. Lawyer Discipl. 3.1(E)(3) ............................................................................... 4


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N.D.R. Lawyer Discipl. 3.5(B) ................................................................................... 4 N.D.R. Lawyer Discipl. 3.1(F)(1) ........................................................................... 4, 5 N.D.R. Lawyer Discipl. 3.1(F)(2) ........................................................................... 4, 5 N.D.R. Lawyer Discipl. 3.2(A) ................................................................................... 4 N.D.R. Lawyer Discipl. 3.5(A) ................................................................................... 5 Disciplinary Bd. v. Ellis, 504 N.W.2d 559 (N.D. 1993) ......................................................................... 5 Disciplinary Bd. v. Jones, 487 N.W. 2d 599 (N.D. 1992) ........................................................................ 5 II. The Younger abstention doctrine bars Gillette’s action............................................. 5 Younger v. Harris, 401 U.S. 37 (1971)................................................................... 5, 6, 7, 8, 9, 10 Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987)........................................................................................... 5 Middlesex County Ethics Comm. V. Garden State Bar Ass’n, 457 U.S. 423 (1982)................................................................. 5, 6, 7, 8, 9, 10 Moore v. Sims, 442 U.S. 415 (1979)................................................................................... 5, 6 Haw. Hous. Auth. V. Midkiff, 467 U.S. 229 (1984)....................................................................................... 5 Hirsh v. Justices of Supreme Ct., 67 F.3d 708 (9th Cir. 1995)............................................................................. 5 Huffman v. Pursue, Ltd., 420 U.S. 592 (1975)....................................................................................... 6 Alleghany Corp. v. Pomeroy, 898 F.2d 1314 (8th Cir. 1990)......................................................................... 6 Norwood v. Dickey, 409 F.3d 901 (8th Cir. 2005)....................................................................... 7, 8


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Neal v. Wilson, 112 F.3d 351 (8th Cir. 1997)....................................................................... 7, 8 In re Dir. of Lawyers Prof’l Responsibility Bd., 752 F.2d 352 (8th Cir. 1985)....................................................................... 7, 8 N.D. Const. art. VI, § 3 .............................................................................................. 8 N.D.C.C. ch. 27-11.................................................................................................... 8 N.D.C.C. ch. 27-13.................................................................................................... 8 N.D.C.C. ch. 27-14.................................................................................................... 8 N.D.R. Lawyer Discipl. 2.4 ........................................................................................ 8 N.D.R. Lawyer Discipl. 3.1 ........................................................................................ 8 Dvorak v. Supreme Court, Civil No. 2:00-cv-00088-RWG-KKK (D.N.D. July 11, 2000) .................... 8, 10 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)....................................................................................... 8 N.D.R. Lawyer Discipl. 3.1(A) ................................................................................... 9 N.D.R. Lawyer Discipl. 3.1(E) ................................................................................... 9 N.D.R. Lawyer Discipl. 6.1(B) ................................................................................... 9 N.D.R. Lawyer Discipl. 3.1(F).................................................................................... 9 Baffert v. Cal. Horse Racing Bd., 332 F.3d 613 (9th Cir. 2003)........................................................................... 9 Judicial Conduct Comm’n v. McGuire, 2004 ND 171, 685 N.W.2d 748.................................................................... 10 In re Disciplinary Action Garass, 2002 ND 181, 652 N.W.2d 918.................................................................... 10 Disciplinary Bd. v. Hawkins, 2001 ND 55, 623 N.W.2d 431...................................................................... 10 Gibson v. Berryhill, 411 U.S. 564 (1973)..................................................................................... 10


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Peery v. Brakke, 826 F.2d 740 (8th Cir. 1987)......................................................................... 10 Conclusion ......................................................................................................................... 10


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STATEMENT OF THE CASE

On December 2, 2008, plaintiff Vance Gillette (Gillette) served a Summons and

Complaint against North Dakota Disciplinary Board Counsel Brent Edison. Mr. Edison is

Assistant Disciplinary Counsel for the Disciplinary Board of the North Dakota Supreme

(Disciplinary Board). Compl. ¶ 3. The Complaint is against Mr. Edison in his official

capacity, id., and thus is against the Disciplinary Board.

The Complaint alleges Gillette is an attorney licensed in North Dakota. Id. ¶ 2.1

The Complaint further alleges that the Disciplinary Board is attempting to take disciplinary

action against Gillette based on Gillette’s conduct on the Fort Berthold Indian Reservation.

Id. ¶ 11. The Complaint alleges the Disciplinary Board, and thus the North Dakota

Supreme Court, lacks jurisdiction to discipline Gillette based on his conduct on the Fort

Berthold Indian Reservation. Id. ¶ 15. The Complaint further alleges the attempted

discipline violates Gillette’s rights to Equal Protection because “Non-Indian or white

attorneys (licensed in ND) who practice in another jurisdiction are not charged by an initial

ND petition.” Id. ¶ 20. The Complaint requests declaratory and injunctive relief barring the

Disciplinary Board from disciplining Gillette for his actions on the Fort Berthold Indian

Reservation. Id. at p. 5.

ARGUMENT

I. There is an established North Dakota judicial process to discipline attorneys.

Under Article VI, Section 3 of the North Dakota Constitution, the North Dakota

Supreme Court has authority to regulate the practice of law in North Dakota, including

disciplining attorneys licensed by the North Dakota Supreme Court. As authorized by the

North Dakota Constitution, the North Dakota Supreme Court established rules for the

attorney disciplinary process. The North Dakota State Bar disciplinary process is

established by Rule 3.1 of the North Dakota Rules of Lawyer Discipline and related rules.

1 Gillette’s office is located in Minot, North Dakota. See http://www.ndcourts.com/Lawyers/.


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A brief summary of the process can be found on the North Dakota Supreme Court website

at http://www.ndcourts.com/Court/Committees/disc_brd/information.htm.

The North Dakota State Bar disciplinary process is initiated by a complaint being

filed with the Secretary of the Disciplinary Board. N.D.R. Lawyer Discipl. 3.1(A). The

Secretary assigns the complaint to the appropriate District Inquiry Committee. Id. By rule,

District Inquiry Committees have authority to “[r]eview investigative reports and

recommendations” and to “[a]ct on each complaint by dismissal, by approval of diversion

from discipline, by issuance of an admonition or consent probation or both, by directing

participation in a lawyer assistance program in conjunction with an admonition or consent

probation, or by directing counsel to file a petition with the board initiating formal

disciplinary or disability proceedings.” Id. at 2.4(E).

Upon receipt, the chair, or upon designation, the vice-chair of the District Inquiry

Committee evaluates the complaint. Id. at 3.1(B). “If the lawyer is not subject to the

jurisdiction of the court, the chair or vice-chair shall refer the matter to the appropriate

entity in the jurisdiction in which the lawyer is admitted.” Id.

The District Inquiry Committee may summarily dismiss a complaint “if the alleged

facts, if true, are not grounds for disciplinary action or disability.” Id. at 3.1(C).2 If the

complaint is not summarily dismissed, the complaint is assigned to a member of the

District Inquiry Committee for prompt investigation. Id. at 3.1(D)(1). A copy of the

complaint is then served on the lawyer, who has twenty days to serve a written response

on the assigned investigator and complainant. Id. at 3.1(D)(2), (3), (4). Unless an

extension is granted by the chair of the District Inquiry Committee, within sixty days of the

assignment the investigator must “file a written report with the chair containing a summary

2 “After summary dismissal of a complaint, the chair or vice-chair, as appropriate, shall promptly notify the lawyer and complainant of the action and furnish a copy of the complaint to the lawyer. The lawyer is not required to respond to the complaint. There is no appeal from a summary dismissal.” N.D.R. Lawyer Discipl. 3.1(C).


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of the investigation and conclusions, the response received from the lawyer, and relevant

documents.” Id. at 3.1(D)(5). Notice of the opportunity to appear before the District Inquiry

Committee is generally provided to the complainant and lawyer. Id. at 3.1(D)(6), (7).3

The District Inquiry Committee meets and acts on the complaint by dismissing it,

approving “diversion from discipline,” issuing “an admonition or consent probation or both,

by directing participation in a lawyer assistance program in conjunction with an admonition

or consent probation, or by directing counsel to file a petition with the board initiating

formal disciplinary or disability proceedings.” Id. at 2.4(E). Disciplinary Counsel promptly

notifies “the complainant and lawyer in writing of the disposition of the complaint and the

reasons for the inquiry committee's decision.” Id. at 3.1(D)(8). The rules provide the

following appeal rights:

The complainant, lawyer, or counsel may appeal any disposition, except a determination that there is probable cause, or a diversion from discipline, to the board by filing a written request for review with counsel within 30 days of mailing of notice. Upon receipt of the written request, counsel shall refer the file to the board which shall consider the merits of the appeal. The determination of the board may be the subject of a petition for leave to appeal to the court, but leave will not be granted unless the person seeking leave to appeal shows that the board acted arbitrarily, capriciously, or unreasonably.

Id. Upon disposition of the matter by the District Inquiry Committee, the investigator’s

report must be filed with the Secretary of the Disciplinary Board. Id. at 3.1(D)(9).

“The board shall begin a formal disciplinary proceeding within 60 days of referral of

a matter to the board for formal proceedings or within 60 days of the board's determination

that there is probable cause to believe a lawyer committed misconduct warranting public

discipline.” Id. at 3.1(E)(1).4 Disciplinary Counsel initiates the proceeding “by filing with

the board and serving upon the lawyer a petition that is sufficiently clear and specific to

3 Notice of the opportunity to appear before the District Inquiry Committee is not provided to the complainant if “the complaint is subject to summary dismissal under N.D.R. Lawyer Discipl. 3.1C,” if there “is a diversion from discipline,” or if “in the chair's opinion the complainant poses a threat of harm to the committee.” N.D.R. Lawyer Discipl. 3.1(D)(6).


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inform the lawyer of the alleged misconduct.” Id.5 “Upon receiving the petition, the chair of

the Disciplinary Board assigns the matter to a three-member hearing panel. Id. The duty

of the Hearing Panel is to conduct a hearing on the matter and “[s]ubmit findings and

recommendations, together with the record of the hearing, to the court.” Id. at 2.3(B).

Absent an extension, the lawyer has twenty days to file the answer with the assigned

hearing panel and to serve the answer upon Disciplinary Counsel. Id. at 3.1(E)(2).

“If there are any material issues of fact raised by the pleadings or if the lawyer

requests the opportunity to be heard in mitigation,” the Hearing Panel gives “25 days

written notice of the hearing to the lawyer, complainant, and counsel, stating the date and

place of hearing.” Id. at 3.1(E)(3). Prior to the hearing, discovery may be conducted in

accordance with the North Dakota Rules of Civil Procedure. Id. at 3.3(C). At the hearing

the lawyer “is entitled to be represented by counsel, to cross-examine witnesses, and to

present evidence.” Id. at 3.1(E)(3). The hearing is recorded. Id. Unless otherwise

provided by the North Dakota Rules of Lawyer Discipline, the North Dakota Rules of Civil

Procedure and North Dakota Rules of Evidence apply in lawyer disciplinary proceedings.

Id. at 3.5(B).

The Hearing Panel may dismiss the matter, consent to probation or reprimand, or

recommend suspension or revocation. Within 60 days of the close of the hearing record,

the Hearing Panel files with the Secretary of the Disciplinary Board the Hearing Panel’s

order of dismissal, consent probation or reprimand, and/or a report containing its findings

and recommendations on each matter heard other than those resulting in dismissal,

consent probation, or reprimand. Id. at 3.1(F)(1), (2). A copy of the Hearing Panel’s order

4 “The time within which formal proceedings must be instituted may be extended for good cause. Upon receiving the petition the chair of the board shall assign the matter to a hearing panel.” N.D.R. Lawyer Discipl. 3.1(E)(1). 5 “Service of a petition upon the lawyer must be made by personal service or by registered or certified mail at the last address shown in the roster of licensed attorneys maintained by the clerk of the court or other last known address. Service in all other respects is governed by the North Dakota Rules of Civil Procedure.” N.D. Lawyer Discipl. 3.2(A).


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and/or report is also served upon Disciplinary Counsel, the complainant, and the lawyer.

Disciplinary Counsel, the complainant, or the lawyer may request the North Dakota

Supreme Court review of the panel's order; the court may provide for oral arguments or

the submission of briefs. Id. at 3.1(F)(1). The lawyer and Disciplinary Counsel may also

file objections to the Hearing Panel’s report. “Within 50 days after service of the report, the

lawyer and counsel may file briefs limited to objections timely filed under [Rule 3.1]. Oral

arguments may be requested by the lawyer or counsel, or may be set upon the court's

own motion. Briefing and oral argument will be as provided in the North Dakota Rules of

Appellate Procedure.” Id. at 3.1(F)(2).

Attorney disciplinary proceedings are quasi-judicial proceedings. Id. at 3.5(A).

Attorneys are entitled to procedural due process during the proceeding. Disciplinary Bd. v.

Ellis, 504 N.W.2d 559, 562 (N.D. 1993). The North Dakota Supreme Court reviews

disciplinary proceedings against attorneys de novo and the standard of proof required is

clear and convincing evidence. Disciplinary Bd. v. Jones, 487 N.W.2d 599, 601 (N.D.

1992).

II. The Younger abstention doctrine bars Gillette’s action.

The doctrine of abstention announced in Younger v. Harris, 401 U.S. 37 (1971), is

derived from fundamental principles of federalism and comity and advises against a

federal court’s involvement in the areas that are committed to the jurisdiction of state

bodies. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 10-11 (1987); Middlesex County

Ethics Comm. v. Garden State Bar Ass’n., 457 U.S. 423, 431 (1982); Moore v. Sims, 442

U.S. 415, 434-35 (1979). The doctrine urges “federal courts to abstain from jurisdiction

whenever federal claims have been or could be presented in ongoing state judicial

proceedings . . . .” Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 237 (1984). In fact, absent

extraordinary circumstances, abstention in favor of state judicial proceedings is required if

Younger abstention applies. Hirsh v. Justices of Supreme Ct., 67 F.3d 708, 712 (9th Cir.

1995).


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The Younger abstention doctrine is fully applicable to noncriminal proceedings

when important state interests are involved. Moore, 442 U.S. at 423; Huffman v. Pursue,

Ltd., 420 U.S. 592, 604-05 (1975). “Younger abstention has been extended to

administrative proceedings . . . .” Alleghany Corp. v. Pomeroy, 898 F.2d 1314, 1316 (8th

Cir. 1990). Under Younger abstention, “[w]here vital state interests are involved, a

federal court should abstain ‘unless state law clearly bars the interposition of the

constitutional claims.’” Middlesex County Ethics Comm., 457 U.S. at 432 (quoting Moore,

442 U.S. at 426). “‘[T]he ... pertinent inquiry is whether the state proceedings afford an

adequate opportunity to raise the constitutional claims . . . .’” Id. (quoting Moore, 442

U.S. at 430).

In Middlesex County Ethics Committee the United States Supreme Court held

Younger abstention applied to a New Jersey state bar disciplinary hearing. The Court

first addressed whether the state bar disciplinary hearings constitute a state judicial

proceeding. It noted that “[t]he State of New Jersey, in common with most States,

recognizes the important state obligation to regulate persons who are authorized to

practice law.” 457 U.S. at 432-33 (footnote omitted). The Court recognized that “New

Jersey expresses this in a state constitutional provision vesting in the New Jersey

Supreme Court the authority to fix standards, regulate admission to the bar, and enforce

professional discipline among members of the bar.” Id. at 433. The Court pointed out

that “the local District Ethics Committees act as the arm of the court in performing the

function of receiving and investigating complaints and holding hearings.” Id. It

explained that filing a complaint with the local New Jersey Ethics and Grievance

Committee is in effect filing a complaint with the New Jersey Supreme Court. Id.

Stating that “[i]t is clear beyond doubt that the New Jersey Supreme Court considers its

bar disciplinary proceedings as ‘judicial in nature,’” the Court held “the proceedings are

of a character to warrant federal-court deference.” Id. at 433-34.


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The Court next addressed whether New Jersey state bar disciplinary

proceedings implicate important state interests so as to warrant federal-court

abstention. The Court quickly and easily concluded it did, stating:

The State of New Jersey has an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses. States traditionally have exercised extensive control over the professional conduct of attorneys. The ultimate objective of such control is “the protection of the public, the purification of the bar and the prevention of a re-occurrence.” The judiciary as well as the public is dependent upon professionally ethical conduct of attorneys and thus has a significant interest in assuring and maintaining high standards of conduct of attorneys engaged in practice.

Id. at 434 (citations omitted). Accordingly, the Court concluded that the importance of

the state interest in the state bar disciplinary proceeding called Younger abstention into

play. Id. at 435. “So long as the constitutional claims of respondents can be

determined in the state proceedings and so long as there is no showing of bad faith,

harassment, or some other extraordinary circumstance that would make abstention

inappropriate, the federal courts should abstain.” Id.

Addressing the last requirement of Younger abstention, the Court concluded the

New Jersey state bar disciplinary proceeding provided the plaintiff an adequate

opportunity to present his federal challenge. After noting that “[u]nder New Jersey's

procedure, its Ethics Committees constantly are called upon to interpret the state

disciplinary rules,” the Court explained that abstention is based upon the theory that the

accused should first raise his defense in the state proceeding, even if the defense

challenges the validity of a statute. Id. Based on the nature of the state bar disciplinary

proceedings, the Court stated “it is difficult to conclude that there was no ‘adequate

opportunity’ for [the plaintiff] to raise his constitutional claims.” Id. at 435-36.

The Eighth Circuit has applied Younger abstention to attorney discipline cases on

at least three occasions. See Norwood v. Dickey, 409 F.3d 901 (8th Cir. 2005); Neal v.

Wilson, 112 F.3d 351 (8th Cir. 1997); In re Dir. of Lawyers Prof’l Responsibility Bd., 752

F.2d 352 (8th Cir. 1985). One decision involved a two paragraph affirmance of the district


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court’s dismissal of the complaint on the grounds of abstention. Dir. of Lawyers Prof’l

Responsibility Bd., 752 F.2d at 352-53. In the other two cases it was not disputed that the

first two requirements of Younger were met. Norwood, 409 F.3d at 903; Neal,112 F.3d at

356-57. Addressing the third requirement, the Eighth Circuit noted the burden is on the

plaintiff to show that the state procedural law barred presentation of the federal claims, and

that the court would not presume state courts will not safeguard federal constitutional

rights. Norwood, 409 F.3d at 904; Neal, 112 F.3d at 357.

Middlesex County Ethics Committee and the cited Eighth Circuit decisions dictate

the application of the Younger abstention doctrine to this case. There is an ongoing state

judicial proceeding. Like New Jersey, North Dakota recognizes an important state

obligation to regulate persons who are authorized to practice law. This is evidenced by

the North Dakota Constitution, which expressly vests in the North Dakota Supreme

Court authority to regulate the “admission to practice, conduct, disciplining, and

disbarment of attorneys at law,” N.D. Const. art. VI, § 3, the rules established by the

North Dakota Supreme Court, see N.D. Admission to Practice Rules; N.D.R. Prof’l

Conduct; N.D.R. Lawyer Discipl.; N.D. Standards for Imposing Lawyer Sanctions, and

laws passed by the North Dakota Legislative Assembly, see N.D.C.C. chs. 27-11

(Admission to Bar); 27-13 (Conduct of Attorneys); 27-14 (Disbarment or Suspension of

Attorneys). Similar to the local District Ethics Committees in New Jersey, the North

Dakota District Inquiry Committees act an arm of the North Dakota Supreme Court

when they receive, investigate, and act on complaints. N.D.R. Lawyer Discipl. 2.4, 3.1.

Filing a complaint with a District Inquiry Committee in effect files a complaint with the

North Dakota Supreme Court and begins a proceeding “judicial in nature.” See Dvorak

v. Supreme Court, Civil No. 2:00-cv-00088-RWG-KKK, at 2 n.1 (D.N.D. July 11, 2000)

(Mem. & Order) (“Since [District of Columbia Court of Appeals v. Feldman, 460 U.S. 462

(1983)], there can be no doubt that attorney disciplinary proceedings, such as the


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suspension proceeding before the North Dakota Supreme Court in this case, are judicial in

nature.”) (Attach. 1). Thus, the first requirement of Younger abstention is met.

Significantly, the disciplinary proceeding against Gillette is “ongoing.” A

complaint was filed with the Secretary of the Disciplinary Board, which initiates the

disciplinary process. N.D.R. Lawyer Discipl. 3.1(A). Furthermore, the District Inquiry

Committee issued a determination and Disciplinary Counsel filed a Petition for

Discipline with the Disciplinary Board, see Attach. 2, which initiated a formal, public

proceeding, see N.D.R. Lawyer Discipl. 3.1(E), 6.1(B). Thus, an ongoing state judicial

proceeding exists.

The second prerequisite to abstention – that the state judicial proceeding implicates

important state interests – is also met. Like New Jersey, North Dakota “has an extremely

important interest in maintaining and assuring the professional conduct of the attorneys

it licenses.” Middlesex County Ethics Comm., 457 U.S. at 434. The important state

interests found in Middlesex County Ethics Committee apply equally to North Dakota.

And the final prerequisite to abstention – an adequate opportunity to raise the

federal claim in the state judicial proceeding – is also present in the North Dakota state bar

disciplinary proceeding. Gillette’s challenge to the North Dakota Supreme Court’s

jurisdiction6 and assertion the disciplinary action violates his rights to equal protection may

be raised in and addressed as part of the disciplinary proceeding. The federal defenses

could ultimately be briefed and argued to, and decided by, the North Dakota Supreme

Court. N.D.R. Lawyer Discipl. 3.1(F). The North Dakota Supreme Court has

addressed constitutional and jurisdictional issues in prior disciplinary cases and can do

6 Younger abstention applies even if the constitutionality of the pending proceeding is at the heart of the plaintiff’s claim. See Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 619 (9th Cir. 2003). Thus, Gillette’s challenge to the North Dakota Supreme Court’s jurisdiction, or any aspect of the state disciplinary proceeding, must be brought in the state judicial proceeding, not before this Court.


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so in the pending state proceeding. See, e.g., Judicial Conduct Comm’n v. McGuire,

2004 ND 171, 685 N.W.2d 748 (addressing argument the N.D. Code of Judicial

Conduct is unconstitutionally vague); In re Disciplinary Action Garaas, 2002 ND 181, ¶¶

26-30, 652 N.W.2d 918 (addressing First Amendment defense); Disciplinary Bd. v.

Hawkins, 2001 ND 55, ¶¶ 1-8, 623 N.W.2d 431 (addressing jurisdiction and due process

arguments).

The abstention doctrine enunciated in Younger “contemplates the outright dismissal

of the federal suit, and the presentation of all claims, both state and federal, to the state

courts.” Gibson v. Berryhill, 411 U.S. 564, 577 (1973). Middlesex County Ethics

Committee dictates that result in this case. “Supervision of the bar, particularly attorney

discipline, is traditionally a responsibility wholly within the jurisdiction of the appropriate

state supreme court.” Peery v. Brakke, 826 F.2d 740, 745 (8th Cir. 1987); see also

Dvorak, Civil No. 2:00-cv-00088-RWG-KKK at 3 (“This court is in no position to tell the

North Dakota Supreme Court how it should use its inherent power to discipline a member

of its bar.”). Because attorney discipline is the responsibility of and within the jurisdiction

of the North Dakota Supreme Court, and in light of North Dakota’s “extremely important

interest in maintaining and assuring the professional conduct of the attorneys it

licenses,” Middlesex County Ethics Comm., 457 U.S. at 434, this Court should dismiss

Gillette’s Complaint.

CONCLUSION

For the above reasons, Defendant Disciplinary Board Counsel, Brent Edison

respectfully requests that the Complaint be dismissed.


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Dated this 17th day of December, 2008. State of North Dakota Wayne Stenehjem Attorney General By: /s/ Douglas A. Bahr Douglas A. Bahr Solicitor General

N.D. Bar ID No. 04940 Office of Attorney General 500 North 9th Street Bismarck, ND 58501-4509 Telephone (701) 328-3640 Facsimile (701) 328-4300

Attorneys for Defendant.

e:\dixie\cl\bahr\briefs\civil.brf\gillette\gillettebriefsupportmtd.doc


CERTIFICATE OF SERVICE

CASE NO. 4:08-CV-102 I hereby certify that on December 17, 2008, the following document:

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS was filed electronically with the

Clerk of Court through ECF, and that ECF will send a Notice of Electronic Filing (NEF) to

Vance Gillette.

/s/ Douglas A. Bahr Douglas A. Bahr Solicitor General


Case 4:08-cv-00102-DLH-CSM Document 6-2 Filed 12/17/2008 Page 1 of 4

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