Page 4

1998 U.S. Dist. LEXIS 20042, *3

subsequently consolidated.

On January 3, 1995, while the 1993 and 1994
complaints were pending, plaintiff filed a complaint in
this Court against several defendants (including several
defendants in the instant action). This complaint alleged,
inter alia, that the defendants had violated the Due
Process Clause and denied him his right to equal
protection under the law. On March 6, 1995, this Court
issued an order dismissing his complaints without
prejudice. In an opinion issued that same day, the Court
stated that plaintiffs claims based on the 1985 grievance
were barred [*4] by the statute of limitations and that his
remaining claims were not ripe for review. Plaintiff
appealed the decision, and the Sixth Circuit affirmed the
dismissal with prejudice of any claim based on the 1985
grievance and affirmed the dismissal without prejudice of
his remaining claims under the Younger Abstention
Doctrine. !

1 Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746,
27 L. Ed. 2d 669 (1971).

On June 12, 1996, an ADB hearing panel issued a
report finding plaintiff guilty of the misconduct charged
in the 1993 and 1994 complaints. (AGC Ex. H.) On
October 7, 1996, the panel issued an order suspending
plaintiff's license for 180 days. (AGC Ex. I.) On April 24,
1997, the ADB affirmed the hearing panel's order of
suspension and subsequently denied plaintiff's motion for
reconsideration. On September 16, 1997, the Michigan
Supreme Court denied plaintiff's application for leave to
appeal, and on November 7, 1997, the court denied
plaintiffs complaint for mandamus, which it treated as a
motion for reconsideration.

[*5] Plaintiff filed the instant complaint, seeking
declaratory and injunctive relief, on April 3, 1998. This
complaint seeks, inter alia, a declaration that various
disciplinary rules and procedures are unconstitutional, an
order reinstating plaintiffs license nunc pro tunc to
October 6, 1997, and an injunction prohibiting defendants
from enforcing various court rules and statutes and from
interfering with plaintiff's constitutional rights and his
right to practice law. 2

2. Plaintiff's counsel disclosed to the Court at oral
argument that plaintiff's suspension has expired
but he has chosen not make application for
reinstatement,

Discussion

Defendants present several arguments for the
dismissal of plaintiff's complaint. The Court will address
the Eleventh Amendment immunity and Rooker-Feldman
arguments infra. 3

3 Defendants also asserted the defense of statute
of limitations. The Court finds this defense to be
without merit. The statute of limitations has not
run on any claims based on the 1993 and 1994
grievances because plaintiff's cause of action did
not accrue with respect to these grievances until
the "termination" of the disciplinary proceedings
in November, 1997. Plaintiff's complaint was
filed on April 3, 1998, well within the statute of
limitations period.

[*6] 1. Eleventh Amendment Immunity

[HN1] "The Eleventh Amendment is an explicit
limitation of the judicial power of the United States."
Missouri v. Fiske, 290 U.S. 18, 25, 54 8. Ct. 18, 20, 78 L.
Ed. 145 (1933). The Eleventh Amendment to the United
States Constitution states: "The Judicial power of the
United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by
Citizens or Subjects of any foreign state." U.S. CONST.
amend. XT. In the absence of consent, a suit in which the
State or one of its departments or agencies is named as a
defendant is proscribed by the Eleventh Amendment.
Pennhurst State Sch, & Hosp. v. Halderman, 465 U.S. 89,
100, 104 S. Ct. 900, 908, 79 L. Ed. 2d 67 (1984) (citing
Florida Dep't of Health and Rehab. Serv. v. Florida
Nursing Home Ass'n, 450 U.S. 147, 101 S, Ct, 1032, 67 L.
Ed. 2d 132 (1981)). Moreover, suits against state officials
in their official capacity are treated as suits against the
state. Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 361,
116 L. Ed. 2d 301 (1991). Whether Eleventh Amendment
immunity applies is a question [*7] of law. Timmer v.
Michigan Dep't of Corrections, 104 F.3d 833, 836 (6th
Cir. 1997).

The Amendment provides immunity to the state, as
well as its departments and agencies, from all suits,
whether for declaratory, injunctive, or monetary relief.
See Thiokol Corp. v. Department of Treasury, 987 F.2d
376, 381 (6th Cir. 1993). This Court finds that the
Michigan Supreme Court, the State Bar of Michigan, and
the ADB are agencies of the state. 4


Page 7

1998 U.S. Dist. LEXIS 20042, *15

that the District of Columbia Court of Appeals' cursory
order denying the plaintiff's petition to waive [*16] a
court rule relating to bar admission was judicial in nature.
It is a question of federal law whether a particular
proceeding before another tribunal was truly "judicial"
for purpose of subject matter jurisdiction. Feldman, 460
US. at 476 n.13, 103 S. Ct. 1311 0.13,

In this Court's opinion, the state proceedings were
judicial in nature. There is no dispute that the grievance
proceedings undertaken by the ADB were adversarial in
nature with the ultimate question being whether plaintiff
violated the Michigan Court Rules by practicing law
during his suspension. 10 Thus, it clearly involved a
determination of liabilities based on facts and law
existing at the time. See Fieger v. Thomas, 74 F.3d 740,
744 (6th Cir. 1996) (citing Prentis, 211 U.S. at 226, 29S.
Ct. at 69). Furthermore, this process involves the ability
to seek leave to appeal to the Michigan Supreme Court
(See MCR 9.122(a), and MCR 7.302.) [HN6] MCR 7.302
requires the party seeking leave to appeal to set forth
among other things "(b) the questions presented for
review related in concise terms to the facts of the case;
(@) a concise statement of the material proceedings and
facts . . . and (e) a concise argument [*17] . . . in support
of the appellate's position on each of the stated
questions.”

10 In these proceedings, both the ADB and the
AGC were acting as arms of the Michigan
Supreme Court. See MCR 9.108(A) and 9.110(A).

In his application for leave to appeal plaintiff
presumably complied with these requirements which
gave the Supreme Court an opportunity to consider
whether or not the issues involved warranted review. In
its order of September 16, 1997, denying plaintiff's
application for leave to appeal, the Court stated:

"On Order of the Court, the application for leave to
appeal is considered, and it is DENIED because we are
not persuaded that the questions presented should be
reviewed by this Court." (PI's Ex. 33) (Emphasis added).

While it is true that a full review was not given by
the Michigan Supreme Court, nevertheless, the process
permits an appellant to seek leave to appeal to the
Michigan Supreme Court and, in this Court's opinion,
[HN7] a decision by the Michigan Supreme Court
denying leave constitutes [*18] judicial review sufficient
to satisfy any constitutional requirement of a judicial

review. [HN8] The United States Supreme Court has not
mandated that an appeal in an attorney discipline
proceeding be as of right. Fieger, 74 F.3d at 748
{analyzing Middlesex). Further, the fact that review was
discretionary did not bar presentation of plaintiff's federal
claims - plaintiff was permitted to raise such claims in his
motion for leave. Jd. at 749 (citing Hirsh v. Justices of
the Supreme Court of Cal., 67 F.3d 708, 713 (9th Cir.
1995)). [HN9] The decision by the Michigan Supreme
Court is a "final judgment" reviewable by the United
States Supreme Court under section 1257. See
Richardson v. District of Columbia Court of Appeals, 317
US. App. D.C. 465, 83 F.3d 1513, 1514 (D.C. Cir. 1996)
(citing Local No. 438 Constr. & Gen. Labor Union,
AFL-CIO v. Curry, 371 U.S. 542, 549, 83 S. Ct. 531, 536,
OL. Ed. 2d 514 (1963).

Plaintiff next contends that he is not seeking review
of his suspension, but rather his complaint "asserts a
general challenge to the constitutionality bar and court
procedural rules and Defendants’ administrative and
ministerial customs and practices." (Pl.'s Br. [*19] in
Resp. to Defs.' Mot. to Dismiss or Alternatively for
Summ. J. at 2-3.) In Feldman, the Supreme Court
recognized that [HNI10] district courts may have
jurisdiction over general challenges to state bar rules, so
long as such challenges "do not require review of a final
state-court judgment in a particular case." See Feldman,
460 US. at 486, 103 S. Ct. at 1317.

The Court rejects plaintiff's claim, raised throughout
his pleadings and repeatedly by counsel at oral argument,
that he is bringing a general challenge to such rules and
procedures, Plaintiff's complaint alleges. inter alia, that
defendants unconstitutionally applied certain provisions
of the Michigan Court Rules in the disciplinary
proceedings against plaintiff and deprived him of his due
process and equal protection rights. Plaintiff further
asserts that the allegedly unconstitutional court rules and
practices were being enforced in a way that violated
plaintiff's constitutional rights. (Compl. PP 20(c); 23(a).)
By way of relief, his complaint seeks, among other
things, a declaration that Patmon's rights have been
violated and that Patmon'’s conduct as a lawyer is
protected by the United States Constitution. Plaintiff
{*20] also seeks orders restoring plaintiff's license and
purging his disciplinary records. (Compl. PP 26(C), (G).)
Such averments indicate that plaintiff is challenging his
license suspension, and his claims are therefore
inextricably intertwined with the grievance process. See



Page 3

1998 U.S, Dist. LEXIS 20042, *1

[HN8] The United States Supreme Court has not
mandated that an appeal in an attorney discipline
proceeding be as of right.

Civil Procedure > U.S. Supreme Court Review > State
Court Decisions

[HN9] A decision by the Michigan Supreme Court is a
"final judgment" reviewable by the United States
Supreme Court under 28 U.S.C.S. § 1257.

Civil Procedure > Jurisdiction > Subject Matter
Jurisdiction > Jurisdiction Over Actions > General
Overview

Civil Procedure > Appeals > Appellate Jurisdiction >
State Court Review

Legal Ethics > Sanctions > Disciplinary Proceedings >
Appeals

[HN10] District courts may have jurisdiction over general
challenges to state bar rules, so long as such challenges
do not require review of a final state-court judgment in a
particular case.

COUNSEL: For FREDERICK A. PATMON, plaintiff:
Clarence B. Tucker, Sr., Tucker & Hughes, Hallison
Young, Patmon & Young, Detroit, MI.

For MICHIGAN SUPREME COURT, CONRAD L.
MALLET, JR., CORBIN R. DAVIS, ATTORNEY
DISCIPLINE BOARD FOR THE STATE OF
MICHIGAN, MILES A. HURWITZ, JOHN F. VAN
BOLT, defendants: Margaret A. Nelson, Michigan
Department of Attorney General, Lansing, MI.

For STATE BAR OF MICHIGAN, EDMUND M.
BRADY, JR., defendants: Thomas K. Byerley, Lansing,
MI.

For MICHIGAN ATTORNEY GRIEVANCE
COMMISSION, PHILLIP J. THOMAS, defendants:
Richard L. Cunningham, Attorney Grievance
Commission, Detroit, MI.

JUDGES: PRESENT: HONORABLE PATRICK J.
DUGGAN, U.S. DISTRICT COURT JUDGE.

OPINION BY: PATRICK J. DUGGAN

OPINION

OPINION AND ORDER

At a session of said Court, held in the U.S. District
Courthouse, City of Detroit. County of Wayne, State of
Michigan, on NOV 19 1998.

PRESENT: THE HONORABLE PATRICK J.
DUGGAN

U.S. DISTRICT COURT JUDGE

Plaintiff, an attorney who has practiced law in the
State of Michigan [*2] since 1966, challenges
disciplinary proceedings initiated against him by the
Attorney Grievance Commission ("AGC") which resulted
in his suspension from the practice of law. In this action
brought pursuant to 42 U.S.C. § 1983, plaintiff contends
that the various disciplinary rules and procedures applied
to him are unconstitutional and he seeks an order
reinstating his license to practice law and an injunction
prohibiting defendants ftom enforcing various rules and
statutes. Currently before the Court are motions to
dismiss and/or for summary judgment brought by
defendants and plaintiff's motion for a temporary
restraining order and preliminary injunction. A hearing
was held on September 24, 1998.

Background

Beginning in 1985, plaintiff has had three
disciplinary proceedings initiated against him by the
Attorney Grievance Commission ("AGC"). The first
complaint, initiated on October 15, 1985, alleged that
plaintiff had failed to retum funds to a client when
requested. In 1989, a hearing panel of the Attorney
Disciplinary Board ("ADB") found plaintiff guilty of
professional misconduct and entered an order suspending
his license to practice law for ninety days, The ADB
denied [*3] plaintiff's subsequent appeal on May 14,
1990, and the Michigan Supreme Court denied plaintiffs
application for leave to appeal on May 31, 1991. The
Michigan Supreme Court denied plaintiff's motions for
reconsideration and a stay on August 5, 1991.

On March 29, 1993, the AGC filed a second
complaint against plaintiff alleging that he practiced law
while his license was suspended and that he failed to
notify third parties of his suspension. On August 18,
1994, the AGC filed a third complaint against plaintiff.
This complaint alleged that he practiced law while his
license was suspended. These proceedings were


Page 5

1998 U.S. Dist. LEXIS 20042, *7

4 [HN2] "State means the state of Michigan and
its agencies, departments, commissions, courts . . .
." MICH. COMP. LAWS § 691.1401(c). This
Court has dismissed plaintiff's prior action against
the Michigan Supreme Court on Eleventh
Amendment immunity grounds. Patmon v.
Thomas, No. 95-70005, slip op. at 4 (E.D. Mich.
Mar. 6, 1995).

{HN3] The Michigan Supreme Court is immune
from suit for both injunctive and monetary relief pursuant
to the Eleventh Amendment. See Alia v. Michigan
Supreme Court 906 F.2d 1100 (6th Cir. 1990); see also
Abick v. State of Michigan, 803 [*8] F.2d 874 (6th Cir.
1986). The State Bar of Michigan is organized under
MCL. § 600.901, and regulated by the Michigan
Supreme Court pursuant to MC.L. § 600.904. The State
Bar of Michigan is an integrated bar association, and as
such, to be licensed in Michigan an attorney must be a
member of the State Bar. See Falk v. State Bar of
Michigan, 411 Mich. 63, 305 N.W.2d 201 (1981).

The Michigan Supreme Court possesses inherent
power to regulate the Bar. Johnson v. DiGiovanni, 347
Mich. 118, 127, 78 N.W.2d 560 (1956). The State Bar is
immune because it is under the control and authority of
the Supreme Court. See Kish v. Michigan State Bd. of
Law Examiners, 999 F. Supp. 958, 962 (E.D. Mich. 1998)
(explaining State Bar of Michigan immunity); see also
Thiel v. State Bar of Wisconsin, 94 F.3d 399 (7th Cir.
1996); accord Lewis v. Louisiana State Bar Ass'n, 792
F.2d 493 (5th Cir. 1986), Bishop v. State Bar of Texas,
791 F.2d 435 (5th Cir.1986), and Ginter v. State Bar of
Nevada, 625 F.2d 829 (9th Cir. 1980). Similarly, the
ADB acts as an "arm" of the Michigan Supreme Coutt,
and thus it is also entitled to Eleventh Amendment
immunity in discharging its "exclusive constitutional [*9]
responsibility" to supervise and discipline attorneys. See
MCR 9.110(A); see also Patmon v. Thomas, 1997 U.S.
App. LEXIS 13235, Nos. 95-1505, 95-1569, 1997 WL
299377, at *1 (6th Cir. June 4, 1997) (describing ADB as
an adjudicative agency of Michigan Supreme Court).

Accordingly, plaintiffs suit against defendants
Michigan Supreme Court, State Bar of Michigan, and
ADB is barred by Michigan's Eleventh Amendment
immunity. Suit against the individual defendants is also
barred, unless it falls within the narrow exception the
Supreme Court carved out for certain suits praying for
declaratory and injunctive relief against state officials.

See Ex parte Young, 209 US. 123, 28 S. Ct. 441, 52 L.
Ed. 714 (1908). In Idaho v. Coeur d’ Alene Tribe, 521
US. 261, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997), the
Court stated pointedly in narrowing the Young exception:

To interpret Young to permit a federal
court-action to proceed in every case
where prospective declaratory and
injunctive relief is sought against an
officer, named in his individual capacity,
would be to adhere to an empty formalism
and to undermine the principle . . . that
Eleventh Amendment immunity represents
a real limitation on a federal court's
federal-question [*10] jurisdiction.

Idaho v. Coeur d' Alene Tribe, 521 U.S. 261, 117 S. Ct.
2028, 2034, 138 L. Ed. 2d 438 (1997). The genuine
interests served by the Eleventh Amendment should not
be sacrificed to the tactics of creative and blanket case
captions and pleadings. Id.

An allegation of a continuing violation of federal law
seeking prospective relief is ordinarily sufficient to
invoke the Young fiction; however, when the action
implicates special sovereignty interests, as in the case sub
judice and in Coeur d'Alene, the Eleventh Amendment
provides immunity from suit. //7 S. Ct. at 2040. Further,
a federal court is powerless to award retrospective relief,
designed to remedy past violations of federal law. Id. at
2043 (O'Connor, J., concurring) (citing Green v.
Mansour, 474 U.S. 64, 68-69, 106 S. Ct. 423, 425-26, 88
L. Ed. 2d 371 (1985)).

The state of Michigan's interest in the case at bar is
in its right to govern, regulate and license attorneys, via
the Michigan Supreme Court, the State Bar of Michigan,
and the ADB, pursuant to the criteria it determines to be
in the best interests of the citizens and lawyers of the
state of Michigan. See Kish, 999 F. Supp. [*11] at 964.
"The interest of ‘the State in regulating lawyers is
especially great since lawyers are essential to the primary
governmental function of administering justice, and have
historically been ‘officers of the courts." Goldfarb v.
Virginia State Bar, 421 U.S. 773, 792, 95 S. Ct. 2004,
2016, 44 L. Ed. 2d 572 (1975). Hence, Michigan has a
special sovereignty interest in the regulation of its legal
profession. Kish, 999 F. Supp. at 964; see also Middlesex
County Ethics Comm. v. Garden State Bar Ass'n, 457
U.S. 423, 434, 102 S. Ct, 2515, 2522, 73 L. Ed. 2d 116



Page 8

1998 U.S. Dist. LEXIS 20042, *20

Feldman, 460. U.S. at 486-87, 103 S. Ct. at 1317.
Accordingly, plaintiff's claims against the AGC and Phil
Thomas are dismissed.

Lack of Federal Constitutional Issue

The Court has a serious question whether or not
plaintiff is even asserting a federal constitutional
question, At the hearing on this motion, petitioner
identified his federal constitutional issue as a denial of his
due process rights because he was not given a 21-day stay
after the Michigan Supreme Court, on May 31, 1991,
denied his application for leave to appeal, Plaintiff
received notice of this order on or about June 3, 1991.
The disciplinary proceedings that are the subject of this
lawsuit charged Patmon with "practicing law" on June
11, 1991 while his license was suspended. Plaintiff
contends that “due process" requires a "21-day stay” from
the date of the Supreme Court order. Plaintiff avers that a
21-day stay of proceedings was granted [*21] by the
ADB following its orders of discipline, and if the
Michigan Supreme Court had granted a 21-day stay in its
order of May 31, 1991, his conduct on June 11, 1991
would not have constituted any violation. MCR 7.317
provides that, "Unless otherwise ordered by the Court, an
order or judgment is effective when it is issued." The
Court does not believe that plaintiff has any "federally
protected" constitutional right to a 21-day stay of the
Michigan Supreme Court's order of May 31, 1991.

Plaintiff also contends that MCR 7.119A is
“unconstitutional” because it requires that an attorney
whose license is revoked or suspended "shall, within
seven days of the effective date of the order of discipline"
fulfill certain requirements. Plaintiff interprets the phrase,
"within 7 days of the effective date of the order of

discipline" to mean seven days before the effective date
of the revocation, and, plaintiff argues that this rule, if
applied to the order of the Supreme Court of May 31,
1991, requires an "impossibility" - because petitioner
would not even know of the order until it was entered,
Therefore, he could not have complied with the
requirements seven days before the order.

[*22] The Court is satisfied that plaintiff
misinterprets the meaning of “within seven days of the
effective date of the order of discipline.” The only
reasonable interpretation of that language is that the rule
requires that not more than seven days after the effective
date of the order of discipline, the attorney must comply
with the requirements set forth in MCR 9.119.

Therefore, the Court is not persuaded that plaintiff
has identified a federal constitutional right of which he
has been deprived.

For the reasons set forth above.

IT IS ORDERED, that plaintiff's motion for
preliminary injunction is DENIED, and

IT IS FURTHER ORDERED, that the motions to
dismiss and/or for summary judgment brought by all
defendants are GRANTED, and plaintiff's complaint is
DISMISSED.

A Judgment of Dismissal shall issue.
PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE



Exhibit 1


Page 6

1998 U.S. Dist. LEXIS 20042, *11

(1982). Accordingly, the exceptions to Eleventh
Amendment immunity, as delineated in Young, do not
apply to the instant case. Therefore, this Court finds that
dismissal as to state defendants Michigan Supreme Court.
State Bar of Michigan, and the ADB is proper. 5

5S See Kish, 999 F. Supp. at 964 (dismissing
State Bar of Michigan, Board of Law Examiners
itself, as well as its members individually).

The Court wili also enter summary judgment [*12]
as to plaintiff's claims against defendants Mallet, Davis,
Brady, Hurwitz, and Van Bolt. Plaintiff has failed to
demonstrate that these individual defendants had the
requisite personal involvement in any of the events or
decisions regarding the disciplinary proceedings which
gave rise to this action. See Ortman v. Thomas, 894 F.
Supp. 1104 (E.D. Mich, 1995) (granting summary
judgment to defendant Van Bolt as director of ADB on
strikingly similar facts), aff'd, 99 F.3d 807 (6th Cir.
1996). § Moreover, plaintiff should be ever mindful of the
language of Young, a decision upon which he has relied
heavily as his authority for commencing this suit. The
language is especially poignant with respect to
defendants Brady and Davis. [HN4] "In making an
officer of the state a party defendant in a suit to enjoin the
enforcement of an act alleged to be unconstitutional, it is
plain that such officer must have some connection with
the enforcement of the act... ." Ex parte Young, 209
US. at 157, 28 S. Ct. at 453. Plaintiffs complaint is
devoid of any specific substantive allegations of fact
against the individual defendants. 7 The Court believes
these defendants were singled out solely [*13] due to the
offices they held and not as to their conduct in them.
Summary judgment is proper as to individual defendants
Mallet, Davis, Brady, Hurwitz, and Van Bolt.

6 Plaintiff Ortman sought injunctive relief
against instant defendants ADB, AGC, Thomas
and Van Bolt, pursuant to § 1983, based upon
attorney discipline proceedings instituted against
the plaintiff. Similar to plaintiff Patmon, Ortman
indicted the entire Michigan attorney discipline
system as unconstitutional, and violative of his
First, Second, Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendment rights, Ortman, 894 F.
Supp. at 1111.

7 The Court also notes that plaintiff did not, at
oral argument, inform the Court of any allegations
against the individual defendants,

Dismissal of plaintiff's claims does not foreclose all
avenues of review however. Plaintiff may still petition for
a writ of certiorari to the Supreme Court. The United
States Supreme Court has authority to review this matter
pursuant to 28 U.S.C. § 1257.

2. [*14] Subject Matter Jurisdiction

Defendants argue, and nothing presented to the Court
at oral argument persuades this Court to the contrary, that
plaintiffs complaint essentially seeks review of the
attorney grievance proceedings outlined previously and is
therefore barred under the Rooker-Feldman ® doctrine
because they arise out of state court proceedings. This
Court agrees. In District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 476, 75 L. Ed. 2d 206, 103 S. Ct.
1303 (1983), the Supreme Court noted that 28 U.S.C. §
1257 provides that review of state court proceedings can
only be had by the Supreme Court. 9

8 Rooker v. Fidelity Trust Co., 263 U.S. 413, 44
S. Ct. 149, 68 L. Ed. 362 (1923); District of
Columbia Court of Appeals v. Feldman, 460 U.S.
462, 103 8. Ct. 1303, 75 L. Ed. 2d 206 (1983).

9 [HNS] 28 U.S.C. § 1257 provides in pertinent
part. "Final judgments or decrees rendered by the
highest court of a State in which a decision could
be had, may be reviewed by the Supreme Court
by writ of certiorari.”

[*15] Plaintiff first argues that the state proceedings
of the ADB and the Michigan Supreme Court, which
resulted in the suspension of his license, were not
“judicial” and did not result in a "final judgment.”
Plaintiff emphasizes the fact that the Michigan Supreme
Court did not "review" the determination of the ADB, but
simply declined his application for appeal.

In Feldman, the Supreme Court held that the
character and effect of the proceedings. not their form,
was the controlling factor in determining whether
proceedings were judicial rather than legislative or
ministerial. Feldman, 460 U.S. at 482, 103 S. Ct. at 1314.
The linchpin of this inquiry is whether the state
proceedings "involved a ‘judicial inquiry' in which the
court was called upon to investigate, declare, and enforce
‘liabilities as they [stood] on present or past facts and
under laws supposed already to exist." Id. at 479, 103 S.
Ct. at 1313 (quoting Prentis v. Atlantic Coast Line Co.,
211 US. 210, 226, 29 S. Ct. 67, 69, 53 L. Ed. 150
(1908)). Based on these criteria, the Feldman court held



@ LexisNexis:

Page 1

LEXSEE 1998 U.S, DIST. LEXIS 20042

>

Positive
As of: Mar 10, 2009

FREDERICK A. PATMON, Plaintiff, vs. THE MICHIGAN SUPREME COURT;
CONRAD L. MALLET, JR., Chief Justice; CORBIN R. DAVIS, Clerk; STATE
BAR OF MICHIGAN; EDMUND M. BRADY, JR. President, ATTORNEY
DISCIPLINE BOARD; MILES A. HURWITZ, Chairperson; JOHN F. VAN BOLT,
Executive Director; MICHIGAN ATTORNEY GRIEVANCE COMMISSION;
PHILIP J. THOMAS, Grievance Administrator. Defendants.

CASE NO.: 98-CV-71470-DT

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
MICHIGAN, SOUTHERN DIVISION

1998 U.S. Dist. LEXIS 20042

November 19, 1998, Decided

DISPOSITION: [*1] Plaintiff's motion for
preliminary injunction DENIED, and motions to dismiss
and/or for summary judgment brought by all defendants
GRANTED, and plaintiff's complaint DISMISSED.

CASE SUMMARY:

PROCEDURAL POSTURE: Defendants, state supreme
court, state bar, attorney discipline boar, and attorney
grievance commission, filed motions to dismiss or
motions for summary judgment in an action filed by
plaintiff attorney under 42 U.S.C.S. § 1983, challenging
disciplinary proceedings that resulted in his suspension.
The attorney sought declaratory and injunctive relief.

OVERVIEW: The attomey had disciplinary proceedings
initiated against him by the Attorney Grievance
Commission (AGC), The attomey was found guilty of
professional misconduct and had his license to practice
suspended, The attorney was also disciplined for

practicing law while his license was suspended. The
attorney brought a 42 U.S.C.S. § 1983 action against the
AGC, the state bar, the state supreme court, attorney
discipline board (ADB) and associated individuals. The
court granted defendants motions to dismiss and/or for
summary judgment and dismissed the attorney's action.
The court found that the state supreme court, state bar,
and ADB and ADB were immune from the action under
U.S. Const. amend. XI. The court also found that the
individual defendants were immune because the state had
a special sovereignty interest in the regulation of its legal
profession The court also granted summary judgment as
to a number of individual defendants because the attorney
failed to demonstrate that they had the requisite personal
involvement in any of the events or decisions regarding
the disciplinary proceedings which gave rise to this
action.

OUTCOME: The court denied the attorney's preliminary
injunction and granted the motions of the state supreme
court, state bar, attorney discipline boar, and attorney



Page 2

1998 U.S. Dist. LEXIS 20042, *1

grievance commission to dismiss and/or for summary
judgment in the § /983 action brought by the attorney
challenging his suspension from the practice of law.

LexisNexis(R) Headnotes

Civil Procedure > Federal & State Interrelationships >
Sovereign Immunity > Federal Judicial Limitations
Civil Procedure > Federal & State Interrelationships >
Sovereign Immunity > State Immunity

Governments > State & Territorial Governments >
Claims By & Against

{HN1!] U.S. Const. amend. XI is an explicit limitation of
the judicial power of the United States. The Eleventh
Amendment to the United States Constitution states that
the judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by citizens of another state, or by citizens or
subjects of any foreign state. In the absence of consent, a
suit in which the state or one of its departments or
agencies is named as a defendant is proscribed by the
Eleventh Amendment. Moreover, suits against state
officials in their official capacity are treated as suits
against the state. The Amendment provides immunity to
the state, as well as its departments and agencies, from all
suits, whether for declaratory, injunctive, or monetary
relief.

Governments > State & Territorial Governments >
General Overview

[HN2] "State" means the state of Michigan and its
agencies, departments, commissions, courts. Mich. Comp.
Laws § 691.1401(c).

Civil Procedure > Federal & State Interrelationships >
Sovereign Immunity > Federal Judicial Limitations
Civil Procedure > Federal & State Interrelationships >
Sovereign Immunity > State Immunity

Governments > State & Territorial Governments >
Claims By & Against

[HN3] The Michigan Supreme Court is immune from suit
for both injunctive and monetary relief pursuant to U.S.
Const. amend. XI. The State Bar of Michigan is organized
under MC.L. $ 600.901, and regulated by the Michigan
Supreme Court pursuant to M.C.L. § 600.904. The State

Bar of Michigan is an integrated bar association, and as
such, to be licensed in Michigan an attorney must be a
member of the State Bar. The Michigan Supreme Court
possesses inherent power to regulate the Bar. The State
Bar is immune because it is under the control and
authority of the Supreme Court. Similarly, the Attomey
Disciplinary Board acts as an "arm" of the Michigan
Supreme Court, and thus it is also entitled to Eleventh
Amendment immunity in discharging its "exclusive
constitutional responsibility" to supervise and discipline
attorneys.

Governments > State & Territorial Governments >
Claims By & Against

Governments > State & Territorial Governments >
Employees & Officials

[HIN4] In making an officer of the state a party defendant
in a suit to enjoin the enforcement of an act alleged to be
unconstitutional, it is plain that such officer must have
some connection with the enforcement of the act.

Civil Procedure > U.S. Supreme Court Review > State
Court Decisions

[HS] 28 U.S.C.S. § 1257 provides that final judgments
or decrees rendered by the highest court of a state in
which a decision could be had, may be reviewed by the
United States Supreme Court by writ of certiorari.

Civil Procedure > Appeals > Motions on Appeal
[HN6]} Mich. Ct. R. 7.302 requires the party seeking
leave to appeal to set forth among other things the
questions presented for review related in concise terms to
the facts of the case; a concise statement of the material
proceedings and facts; and, a concise argument in support
of the appellate's position on each of the stated questions.

Civil Procedure > U.S. Supreme Court Review > State
Court Decisions

[HN7] A decision by the Michigan Supreme Court
denying leave constitutes judicial review sufficient to
satisfy any constitutional requirement of a judicial
review.

Civil Procedure > U.S. Supreme Court Review > State
Court Decisions

Legal Ethics > Sanctions > Disciplinary Proceedings >
Appeals