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Barkovic v. Attorney Grievance Commission

United States District Court, E.D. Michigan, Southern Division

December 22, 2017

TIMOTHY BARKOVIC, Plaintiff,
v.
ATTORNEY GRIEVANCE COMMISSION, ALAN GERSHEL, ROBERT EDICK, KIMBERLY UHURU, RUTHANN STEVENS, JOHN DOE, STATE BAR OF MICHIGAN, CLIFFORD FLOOD, JANE DOE, DAWN EVANS, JOHN VAN BOLT, MARK ARMITAGE, MARILYN KELLY, MICHAEL F. CAVANAGH, MAURA D. CORRIGAN, ROBERT P. YOUNG, JR., STEPHEN J. MARKMAN, DIANE M. HATHAWAY, BRIAN ZAHARA, BRIDGET MARY MCCORMACK, DAVID VIVIANO, RICHARD BERNSTEIN, and JOAN LARSEN, Defendants,

          OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS AND DISMISSING AMENDED COMPLAINT

          DAVID M. LAWSON, United States District Judge

         Plaintiff Timothy Barkovic was a Michigan attorney from 1979 until he surrendered his law license on December 1, 2015. Barkovic apparently had several brushes over the years with Michigan's attorney discipline system. He contends that his resignation (which apparently was the culmination of his latest disciplinary prosecution) was the product of a flawed state bar rule that unconstitutionally restricted speech, coupled with conspiratorial actions by some of the defendants to prosecute him under that rule in retaliation for his criticism of certain courts, judges, and state bar officials. In his five-count amended complaint, Barkovic seeks money damages against several current and former justices of Michigan's supreme court, the Michigan Attorney Grievance Commission and its employees, the Michigan Attorney Discipline Board (ADB) and its employees, and some of the functionaries of the State Bar of Michigan. The various defendants have moved to dismiss on jurisdictional and immunity grounds, and for the failure to state a cognizable claim. Through some of their arguments, they have demonstrated that Barkovic's claims cannot advance. Therefore, the motions to dismiss will be granted and the amended complaint will be dismissed.

         I.

         The following fact summary is taken from Barkovic's amended complaint. Barkovic became a licensed attorney in Michigan on May 16, 1979. He acknowledges that as an attorney, he was subject to the Michigan Rules of Professional Conduct (MRPC). One of those rules, MRPC 6.5, requires lawyers to “treat with courtesy and respect all persons involved in the legal process.” Barkovic alleges that he has been disciplined several times for violating that rule because of comments that he has made. He contends that Rule 6.5 violates the First and Fourteenth Amendments, because the rule is vague and it “chills” his right to speak freely. He contends that the rule had “infringed on his ability to effectively advocate on behalf of his (prior) clients.” Am. Compl. ¶ 29.

         Barkovic contends that the “defendants” used the state bar grievance machinery to threaten and harass him over the years because of his advocacy style. He has been sanctioned for professional misconduct, and he professes an apprehension that results from his confusion over the vague and imprecise boundaries drawn by Rule 6.5, not knowing when he might cross the line into forbidden territory. He says his punishments have been cumulative, which caused him to believe that the state bar authorities were angling to disbar him. Because he “could not tolerate such a sanction, ” Barkovic alleges that he resigned from the state bar under duress when confronted with the last formal complaint made against him.

         The amended complaint contains five counts. Although there are a few specific allegations, Barkovic generally has painted with a broad brush. The title of count one states that Barkovic seeks redress for “violation of plaintiff's First Amendment and Fourteenth Amendment Rights.” The thrust of that count is that state bar disciplinary officials punished him for violating Rule 6.5, which Barkovic contends has been declared “unconstitutional by this court.” He says that state court precedent prohibited him from raising a constitutional challenge during bar disciplinary proceedings, so he was deprived of his constitutional rights.

         In count two, Barkovic alleges that the “defendants, ” acting under color of state law, conspired to deprive him of his constitutional rights. This claim appears to be based on three incidents. The first one Barkovic listed arose from the surrender of his law license. He makes reference to a letter he wrote on December 1, 2015, which he characterizes as his “official resignation.” He alleges that he submitted that letter subject to an agreement that it would not be effective for 90 days, so he could wind down his law practice and transition his clients. Attorney grievance counsel Kimberly Uhuru jumped the gun on Barkovic's removal from the attorney rolls, he says, by immediately contacting courts throughout the state to assert his ineligibility. That resulted in a judge removing Barkovic from the defense of a criminal client in the midst of a trial on December 8, 2015.

         The second incident occurred in August 2011, when Barkovic requested a formal ethics opinion from the state bar on the interpretation of Rule 6.5. State bar associate counsel Dawn Evans declined the request after contacting the Attorney Grievance Commission and learning of a pending investigation involving Barkovic. Evans told Barkovic that his request lacked sufficient facts to allow her to render an opinion, but Barkovic alleges that excuse was a pretext for the conspiracy.

         The third incident involved state bar general counsel Clifford Flood, who contacted Barkovic's attorney in February 2016, informing him that Barkovic was ineligible to practice law because he did not pay his state bar dues.

         In count three, Barkovic alleges that the “defendants, ” although he does not specify which ones, retaliated against him for exercising his First Amendment rights. The general nature of the retaliation alleged appears to be the uneven application of the rules of professional conduct to other Michigan attorneys who, Barkovic alleges, engaged in conduct that was at least as egregious as his own. He alleges that the grievance administrator employees' refusal to pursue those charges against other attorneys is further evidence of a conspiracy to single him out and punish him for his speech.

         Count four, titled “Violation of Substantive and Procedural Due Process, ” is directed at an apparent feature of the Michigan attorney discipline system, which prevents a respondent from raising a constitutional challenge to the governing rules. Barkovic contends that he was the subject of “several formal complaints, ” and that his effort to mount a constitutional challenge during those proceedings was stymied by those procedural rules.

         In count five, Barkovic contends that the “defendants, ” once again without stating which ones, “engage[d] in a course of conduct, involving selective, vindictive and bad faith prosecutions” of him for professional misconduct. He says that those prosecutions were motivated by ethics complaints that Barkovic himself had made against Attorney Grievance Commission agents and employees, and for lawsuits he filed against them.

         The three groups of defendants filed motions to dismiss. The Attorney Discipline Board and judicial defendants argue that all of the plaintiff's claims are barred on jurisdictional and immunity grounds. The state bar defendants raise similar issues and add that claim and issue preclusion prevent Barkovic from moving forward on his claims. They also attack the amended complaint on its paucity of specific facts to support the plaintiff's broad, conclusory allegations. The Attorney Grievance Commission defendants echo those arguments.

         II.

         The several defendants have brought their motions under Federal Rules of Civil Procedure 12(b)(1) (alleging a lack of subject matter jurisdiction) and 12(b)(6) (alleging the failure to state a claim). “A Rule 12(b)(1) motion for lack of subject matter jurisdiction can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack).” Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014) (citing United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)). “A facial attack goes to the question of whether the plaintiff has alleged a basis for subject matter jurisdiction, and the court takes the allegations of the complaint as true for purposes of Rule 12(b)(1) analysis, ” but “[a] factual attack challenges the factual existence of subject matter jurisdiction.” Ibid. The defendants here mount a facial attack based on two grounds. They contend that because the amended complaint ...


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