Litigation

This article originally appeared in The Bar Examiner print edition, Fall 2020 (Vol. 89, No. 1), pp. 89–92.

Character and Fitness

Abuse of legal system; debt

The Board of Commissioners on Character and Fitness of the Supreme Court of Ohio recommended denial of an application to take the July 2019 Ohio bar examination based on the applicant’s extensive history of frivolous litigation and her accumulation of unpaid debt.

The Board of Commissioners on Character and Fitness of the Supreme Court of Ohio, acting pursuant to its sua sponte authority, held a hearing regarding the character and fitness of Cynthia Rodgers that resulted in findings of fact and a recommendation that her application to take the July 2019 Ohio bar examination be denied. Issues of concern to the board were Rodgers’s disclosures that she has been involved in almost 60 civil actions during her lifetime and that she has several debts that have remained unpaid for many years. The lawsuits in question were mostly filed by Rodgers, including two during her years in law school, and involved diverse subject matter including wrongful death, personal injury, medical malpractice, automobile sales, guardianship, probate, the amount of rent due for Section 8 housing, employment and property law issues, and bankruptcy. She also filed a number of administrative actions involving welfare benefits, social security benefits, and educational matters involving herself, her children, and other relatives. Many of these actions were repetitive and arguably frivolous, and those filed on behalf of relatives likely involved the unauthorized practice of law. The defendant in one of the most recent actions filed a complaint seeking to have Rodgers declared a vexatious litigator.

At the hearing, Rodgers presented four overwhelmingly positive letters of recommendation from officials at her law school stating that Rodgers excelled in her work with the law school’s legal clinic. When asked to reconcile the recommendation letters with her numerous ill-advised and often meritless legal actions, she stated that the letters portray her as she is now, not as she was when she filed most of the legal actions. The writers of the letters had not been informed about the large number of legal actions, although they had been told of some of them. It also appears from Rodgers’s testimony at the hearing that she does not believe she was wrong to file those actions.

The debts in question, owed to several major retailers, do not appear on Rodgers’s credit report, probably because they are too old; they were probably sold to collection agencies that have given up trying to collect them. Rodgers does “not appear particularly concerned” that these debts have been resolved only through her neglect. Rodgers and her husband have also accumulated almost $900,000 in student loan debt, which is being repaid on a 25-year “percentage of income” plan. However, she and her husband are currently paying nothing because their incomes are so low. Rodgers indicated at her hearing that she had no idea how much she had borrowed to attend law school and that she “knew there was no way … that I would ever be able to pay all that back.” Rodgers said that if she becomes licensed to practice law, she intends to work part-time for legal aid.

At the hearing, Rodgers expressed some insight that filing multiple meritless lawsuits was not the right way to use the legal system. Appearing to be considering the issue for the first time, she said that she would “do things differently” now that she has graduated from law school and has a better perspective on how the legal system works. The board did not consider her credibility on this issue to be very high.

The board was troubled by Rodgers’s attitudes regarding use of the legal system and accumulation and payment of debt. Because Rodgers had not proven by clear and convincing evidence that she possesses the requisite character, fitness, and moral qualifications for admission to the practice of law, the board recommended denial of her application to take the bar exam, stating that her conduct “represents an ongoing lack of integrity, abuse of process[,] and neglect of financial responsibility” and “does not show respect for the law … or the ability to exercise good judgment.” The board acknowledged, however, that Rodgers’s record in law school indicates that she has the ability to help others and “has learned at least something from her past litigation experiences.” The board therefore recommended that Rodgers be permitted to reapply in five years for the July 2024 Ohio bar examination and that she undergo a complete character and fitness investigation upon reapplication. The board’s findings of fact and recommendation were adopted by the Ohio Supreme Court.

See In re: Application of Cynthia Marie Rodgers, Case No. 2019-1094 (OH 2019), http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=876632.pdf&fbclid=IwAR0tzH9DV-JAtpSD1SGZc4g0P9JmBpcYYg8fujFA6-e96kmqVTBBP5pX4Lw

Character and Fitness

Dishonesty; disrespect for legal process

The Vermont Supreme Court reviewed on its own motion the Character and Fitness Committee’s decision to certify an applicant’s character and fitness and reversed that decision, denying the applicant admission based on his pattern of dishonesty and his inability to conduct himself in a professional manner.

Following a hearing by a three-member panel, the Vermont Character and Fitness Committee certified applicant Michael Anderson’s good moral character to practice law. Pursuant to Vermont Rule of Admission 18(c), the Vermont Supreme Court ordered review on its own motion. Anderson appealed this review, arguing that the Committee’s decision should be confirmed because the Committee had adequately performed its duty to investigate “thoroughly, fairly, and impartially.” The Court concluded that the Committee had failed to provide sufficient factual findings to support its decision to certify Anderson’s good moral character. After conducting its own review, the Court concluded that Anderson had failed to demonstrate his good moral character and denied his admission.

In November 2018, while a student at Valparaiso University Law School in Indiana, Anderson applied for admission to the Vermont Bar. As required for admission, he submitted a character and fitness application to the National Conference of Bar Examiners (NCBE). In response to a question asking if he had “ever been a named party to any civil action,” Anderson listed four civil actions where he was a named party, including one in which he sued his law school for failing to reimburse him for pizza he bought for a school-sponsored party. In response to a question asking whether he had ever been “cited for, arrested for, charged with, or convicted of any violation of any law,” Anderson listed five criminal matters. In two of those matters he was charged but the charges were later dropped. In the remaining three matters, Anderson pleaded guilty to interfering with a 911 call, was charged with public intoxication, and (during law school) was charged with misdemeanor theft for taking a flag from a display at a county courthouse and then refusing to drop it when told to do so by police officers.

In response to a question asking whether he had ever “been cited for, arrested for, charged with, or convicted of any moving traffic violation during the past ten years,” Anderson listed six traffic violations. In a section that permitted the applicant to provide additional information, Anderson said that as a 40-year-old man, he had “a lot more history under [his] belt” than most of his law school classmates and that his record showed “that [he had] refused to be intimidated when [he] knew [he] was in the right” and had “accepted punishment when in the wrong.” He asked that the Committee not judge him too harshly for the number of incidents listed in his application.

Anderson graduated from law school in December 2018 and subsequently passed the Vermont Bar Exam. The following June, a member of the Character and Fitness Committee reviewed his application for admission, which included NCBE’s character and fitness report. That committee member declined to certify Anderson’s character and fitness for three reasons. Given Anderson’s lengthy record of criminal and traffic charges, the committee member found it unlikely that Anderson would be able to conform to the Vermont Rules of Professional Conduct; the committee member also concluded that Anderson’s record strongly suggested the possibility of a substance abuse problem; and the committee member expressed concern about Anderson’s ability to conduct himself in a professional manner, stating that Anderson’s record “demonstrates an inability to conduct himself professionally and in a manner that engenders respect for the law when in situations involving conflict.”

The hearing before the three-member panel of the Committee occurred in September 2019. The panel found Anderson to be “well-spoken, polite, and professional” and noted that many of Anderson’s witnesses “spoke highly of him.” Although still expressing reservations about Anderson’s ability to conduct himself professionally in some situations, the panel certified his character and fitness to practice law. As noted earlier, the Vermont Supreme Court then ordered review of the Committee’s decision on its own motion.

In appealing the Court’s decision to conduct its own review, Anderson asserted, incorrectly, that the Court lacks jurisdiction to review the Committee’s decision on its own motion and that the state constitution requires the Court to give deference to the Committee’s factual findings. He added that if the Court refuses to defer to the Committee, the Vermont Rules of Admission “may as well end with a final section that reads ‘none of the above rules apply if the Supreme Court doesn’t like you.’”

The Court concluded that, given the Committee’s concerns about Anderson’s prior conduct, it did not make sufficient factual findings to support its decision to certify his good moral character. After conducting its own review, the Court concluded that Anderson’s habit of “confrontational, combative, and insulting behavior” demonstrates a “likelihood to pose a risk to clients, the legal system, [and] the administration of justice.” That, combined with a pattern of dishonesty illustrated by his omission or mischaracterization of relevant details regarding his many civil cases and criminal and traffic charges, indicate that Anderson lacks the good moral character to practice law. The Court reversed the Committee’s decision and denied Anderson’s application for admission to the Vermont Bar.

See In re Michael Anderson (Office of Attorney Licensing), 2020 VT 75, No. 2019-353 (VT 2020)

Immunity

Incomplete application; subject-matter jurisdiction; Rooker-Feldman

The US District Court for the Eastern District of Tennessee at Knoxville dismissed a disappointed applicant’s claims against the Tennessee Board of Law Examiners, based on lack of subject-matter jurisdiction, sovereign immunity, Rooker-Feldman, and quasi-judicial immunity.

On January 17, 2020, the US District Court for the Eastern District of Tennessee at Knoxville dismissed the claims of Charles Van Morgan against the members of the Tennessee Board of Law Examiners, based on lack of subject-matter jurisdiction. The action arose from the board’s February 2019 denial of Morgan’s application to the Tennessee Bar. The stated reason for the denial was that Morgan “had not adequately informed [his] law school and the board of [his] termination from the [Tennessee] highway patrol.” Morgan had been terminated from the highway patrol for pursuit of a suspect, and he claimed that the board had used this pursuit and termination as evidence of bad conduct even though federal civil lawsuits arising from the pursuit had been decided in his favor. He also claimed that younger applicants had been heard first on the day of his hearing while he was heard last, and that an armed trooper had been in the hearing room for his hearing but not for others. After his application was denied, Morgan sought review by the Tennessee Supreme Court, asserting (1) violation of his due-process rights, (2) violation of the supremacy clause of the US Constitution, (3) violation of the equal protection clause of the 14th Amendment to the Constitution, (4) conspiracy in restraint of trade in violation of the Sherman Act, and (5) age-based discrimination in violation of the Age Discrimination in Employment Act of 1967. He sought treble damages and an injunction “requiring the board to not use 601(a) termination from [the Tennessee Highway Patrol] to exclude me from my Tennessee law license.” The Tennessee Supreme Court denied the petition because Morgan had “not shown grounds for relief.” Morgan then filed the same claims in the US District Court for the Eastern District of Tennessee at Knoxville.

The defendants moved to dismiss all claims for lack of subject-matter jurisdiction or, alternatively, for failure to state a claim upon which relief could be granted. The court granted the motion to dismiss for lack of subject-matter jurisdiction, citing the doctrines of sovereign immunity, Rooker-Feldman, and quasi-judicial immunity. The court stated that the defendants are immune in their official capacities from Morgan’s claims for damages because the Tennessee Board of Law Examiners is an arm of the judicial branch of the government of Tennessee, which is immune from suits for damages under the 11th Amendment to the US Constitution and the doctrine of sovereign immunity. Sovereign immunity also bars suits for retroactive injunctive relief; however, the injunctive relief sought by Morgan, “the reversal of a past administrative ruling[,]” might constitute prospective injunctive relief, for which suits are permitted under Ex parte Young. The court did not need to decide this question, however, because the US Supreme Court has “exclusive jurisdiction over appeals from final state-court judgments[,]” and, under Rooker-Feldman, federal district courts lack jurisdiction over claims that are “inextricably intertwined” with a state court’s decision. The Tennessee Supreme Court’s denial of Morgan’s petition for relief from the decision of the Tennessee Board of Law Examiners is clearly a final state-court judgment, and Morgan’s claims to the US District Court are inextricably intertwined with that judgment. Therefore, the court lacks jurisdiction over all claims against the defendants in their official capacities.

The defendants also argued that Morgan’s claims against them in their individual capacities are subject to dismissal under quasi-judicial immunity. Such immunity extends “to those persons performing tasks … integral or intertwined with the judicial process” and depends on “the nature of the function performed, not the identity of the actor who performed it.” Board members’ responsibilities in regard to denying admission to a state’s bar are “clearly adjudicatory in nature,” and absolute quasi-judicial immunity is both appropriate and “necessary … to allow the [b]oard to function unharassed.” Therefore, the defendants are immune in their individual capacities from Morgan’s claims for damages, and, as seen above, Rooker-Feldman bars the court’s jurisdiction over Morgan’s claims for equitable relief. Since all claims could be dismissed for lack of subject-matter jurisdiction, the court did not consider the question of failure to state a claim.

See Charles Van Morgan v. William M. Barker, Margaret L. Behm, William L. Harbison, Jeffrey M. Ward, and Barbara M. Zoccola, in their official and individual capacities, 2020 WL 265282 (E.D. Tenn. 2020)