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Summary:

The defendant removed attorney disciplinary proceedings to federal court based upon federal question and civil rights jurisdiction. The plaintiff filed a motion for remand. The Court concluded that jurisdiction was lacking and removal had been improper. In addition, the Court found that even if it had jurisdiction, abstention would be appropriate. The matter was remanded to the Disciplinary Board of the Supreme Court of the State of North Dakota.

Case Name: North Dakota Supreme Court Disciplinary Board v. Gillette Case Number: 4-10-cv-24 Docket Number: 9 Date Filed: 7/26/10 Nature of Suit: 440

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA NORTHWESTERN DIVISION

Disciplinary Board of the Supreme Court of the State of North Dakota

) ) ORDER GRANTING MOTION ) FOR REMAND Plaintiff, ) ) vs. ) Case No. 4:10-cv-24 ) Vance Gillette, ) ) Defendant. ) ______________________________________________________________________________ Before the Court is the Plaintiff's Motion to Remand filed on April 9, 2010. See Docket No. 2. The Defendant filed a response and a Motion to Stay on May 11, 2010. See Docket Nos. 5 and 6. The Plaintiff filed a response to the motion on May 13, 2010. See Docket No. 7. For the reasons set forth below, the Plaintiff's Motion for Remand is granted and the Defendant's Motion for Stay is denied as moot.

I.

BACKGROUND

The defendant, Vance Gillette, is a member of the Three Affiliated Tribes and lives on the Fort Berthold Indian Reservation in New Town, North Dakota. He is licensed to practice law in tribal court on the Fort Berthold Indian Reservation. Gillette is also admitted to practice law in the State of North Dakota, having been admitted to practice on October 5, 1978. See Docket No. 1-1. In December 2006, Gillette entered into written contingent fee agreements with clients

Richard Hall, Jamie Hall, Delphine Baker, Ardell Jean Baker, and Patti Jo Thomas for the purpose of representing these individuals in a wrongful discharge lawsuit against the Three Affiliated Tribes and its representatives. In October 2007, the Three Affiliated Tribes settled the case with Gillette's clients for the sum of $35,000 per claim. After his clients had been paid, Gillette filed a lawsuit in Fort Berthold Tribal Court to enforce and collect a 30% contingency fee rather than the agreed-upon 10% fee. On April 25, 2008, the Tribal Court entered judgment in favor of Gillette for the recovery of a 10% contingency fee on the total settlement amounts paid. A grievance was filed with the Disciplinary Board of the Supreme Court of the State of North Dakota. The gist of the grievance was that Gillette unilaterally changed the contingent fee agreement from 10% to 30%. On July 28, 2008, the Disciplinary Board filed a petition for discipline against Gillette for violating Rules 1.2(a), 1.4(a)(1), 1.5(a), 1.5(b), 1.7(b), 3.1, 3.3, 4.1, and 8.4(c) of the North Dakota Rules of Professional Conduct. See Docket No. 1-1. A summons was issued on July 31, 2008. The summons and petition were not served on Gillette until March 5, 2010, because Gillette refused to admit service after the summons and petition were mailed to him in 2008. See Docket No. 1-2. In response to the disciplinary proceedings, Gillette filed a separate action in federal district court seeking a declaration that North Dakota disciplinary law does not apply on the Fort 2

Berthold Indian Reservation, and that only the Tribal Bar Board has the authority to regulate attorney conduct on the reservation. See Gillette v. Edison, Case No. 4:08-cv-102, Docket No. 1. This Court dismissed the case based on the principle of abstention in an order dated January 14, 2009. Gillette v. Edison, 593 F. Supp. 2d 1063 (D.N.D. 2009). Gillette filed a notice of appeal on March 2, 2009. The Eighth Circuit Court of Appeals found abstention was proper and affirmed the dismissal. Gillette v. N. D. Disciplinary Bd. Counsel, No. 09-1598, 2010 WL 2696741 (8th Cir. July 9, 2010). Gillette removed the disciplinary proceedings to federal district court on April 2, 2010. See Docket No. 1. The jurisdictional basis cited for removal was 28 U.S.C. § 1441 (federal question) and 28 U.S.C. § 1443 (civil rights). See Docket No. 1. The Disciplinary Board filed a motion for remand on April 9, 2010. See Docket No. 2. Gillette filed a response and a request for stay on May 11, 2010. See Docket Nos. 5 and 6.

II.

LEGAL DISCUSSION It should be noted as a preliminary matter that the decision of the Eighth Circuit in

Gillette v. N. D. Disciplinary Bd. Counsel, No. 09-1598, 2010 WL 2696741 (8th Cir. July 9, 2010) renders moot Gillette's motion for a stay of these proceedings pending the outcome of the appeal. The motion for stay will be denied for that reason. The Disciplinary Board's motion for remand calls into question the jurisdictional basis for removal. It addition, the Disciplinary Board argues the Court should abstain for all the same reasons articulated in Gillette v. Edison, 593 F.Supp.2d 1063 (D.N.D. 2009), aff'd, No. 09-1598, 2010 WL 2696741 (8th Cir. July 9, 2010). 3

A.

FEDERAL QUESTION JURISDICTION

The Disciplinary Board argues removal was improper because no federal question is presented in the Disciplinary Petition. Gillette maintains that his defenses are based on federal law. 28 U.S.C. § 1331 confers original jurisdiction to the federal district courts "of all civil actions arising under the Constitution, laws, or treaties of the United States." Civil actions in which jurisdiction is "founded on a claim or right arising under the Constitution, treaties or laws of the United States" are removable. 28 U.S.C. § 1441(b). A defendant may remove a state court case to federal court only if the case could have been originally filed in federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Gore v. Trans World Airlines, 210 F.3d 944, 948 (8th Cir. 2000). In the absence of diversity of citizenship, a defendant must establish federal question jurisdiction, or some other basis for federal jurisdiction, to effect a proper removal. Whether federal question jurisdiction exists is determined by the "well-pleaded complaint rule" which provides that a federal question must be presented on the face of the complaint to invoke federal court jurisdiction. Magee v. Exxon Corp., 135 F.3d 599, 601 (8th Cir. 1998). The absence of a finding of federal jurisdiction requires that the removed case be remanded to state court. Transit Cas. Co. v. Certain Underwriters at Lloyd's of London, 119 F.3d 619, 623 (8th Cir.1997); 28 U.S.C. § 1447(c). In the Eighth Circuit, "all doubts about federal jurisdiction [must be resolved] in favor of remand." Transit Cas. Co., 119 F.3d at 625. 4

The Petition for Discipline, which initiated the state court proceedings, is based on alleged violations of the North Dakota Rules of Professional Conduct. See Docket No. 1-1. It is not based on federal law and makes no mention of federal law. Gillette argues he will be raising a jurisdictional defense based on federal law and that consequently a federal question is presented. However, it has long been understood that a case may not be removed to federal court based upon a federal defense. Caterpillar, 482 U.S. at 393. Because the Petition for Discipline does not state a federal question, this Court does not have original jurisdiction within the meaning of 28 U.S.C. § 1331. Accordingly, removal was improper under 28 U.S.C. § 1441 and a remand is required.

B.

CIVIL RIGHTS CASES

Gillette also states in his notice of removal that he has been singled out for disciplinary action because he is an Indian in violation of 42 U.S.C. § 1981, and that removal is proper under 28 U.S.C. § 1443. Under 28 U.S.C. § 1443 an action may be removed from state court to federal court when the action is pending: (1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof; (2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law. 28 U.S.C. § 1443. In order for a case to be removable under 28 U.S.C. § 1443 the defendant must rely upon a law providing for equal civil rights stated in terms of racial equality. Neal v. Wilson, 112 F.3d 5

351, 355 (8th Cir. 1997). In addition, the defendant must show that he would be denied or cannot enforce his federal rights in state court based upon a formal expression of state law or, in an unusual case, an equally firm prediction. Id.; McCullough v. Ligon, 271 Fed. Appx. 547, 548 (8th Cir. 2008). In the present case Gillette relies upon 42 U.S.C. § 1981 which does fall within the ambit of 28 U.S.C. § 1443(1). Neal, 112 F.3d at 355. However, Gillette has neither alleged nor made any showing that there is a state law that would prevent him from raising his federal claims in state court. Nor has he made any showing of an "equally firm prediction" that he will not be able to protect his federal rights in state court. In affirming this Court's abstention order, the Eighth Circuit noted that Gillette conceded that the state court disciplinary proceedings afforded an adequate opportunity to raise any federal questions presented, and with regard to his equal protection claim, that "it can be raised in the ongoing state court proceeding." Gillette v. N. D. Disciplinary Bd. Counsel, No. 09-1598, 2010 WL 2696741, at *3 (8th Cir. July 9, 2010). The stringent requirements of 28 U.S.C. § 1443 have not been met. Moreover, Gillette's allegations of racial discrimination focus on the Disciplinary Boad's counsel's motives. But allegations of corrupt motives by officials bringing charges are not enough to support removal under 28 U.S.C. § 1443(1) as an improper motive for bringing charges, or in this case a petition for discipline, does not mean the defendant will not prevail before the tribunal. Neal, 112 F.3d at 355 n.3. The Court finds that removal based upon 28 U.S.C. § 1443 was improper.

C.

ABSTENTION 6

Even if the Court determined that it had jurisdiction over this matter, the Younger abstention doctrine would clearly apply. See Younger v. Harris, 401 U.S. 37 (1971). The Court has previously determined that it should abstain from hearing Gillette's suit against the Disciplinary Board and Brent Edison. Gillette v. Edison, 593 F.Supp.2d 1063 (D.N.D. 2009). That decision has now been affirmed on appeal. Gillette v. N. D. Disciplinary Bd. Counsel, No. 09-1598, 2010 WL 2696741 (8th Cir. July 9, 2010). The doctrine of abstention announced in Younger reflects a longstanding public policy against federal court interference with state court proceedings. "Younger directs federal courts to abstain from hearing cases when (1) there is an ongoing state judicial proceeding which (2) implicates important state interests, and when (3) that proceeding affords an adequate opportunity to raise the federal questions presented." Fuller v. Ulland, 76 F.3d 957, 959 (8th Cir. 1996). The Younger abstention doctrine constrains a federal court's jurisdiction by the traditional principles of equity, comity, and federalism. Alleghany Corp. v. McCartney, 896 F.2d 1138, 1142 (8th Cir. 1990). Nothing has changed since the Court issued its abstention ruling on November 25, 2008, and the Eighth Circuit affirmed that ruling on July 9, 2010. Gillette's removal of the disciplinary petition does not change the prior analysis and Gillette has not raised any new legal arguments. Indeed, given the Eighth Circuit's recent ruling, abstention in this matter is virtually mandated. The Eighth Circuit held that the attorney disciplinary proceedings in which Gillette is embroiled involved an extremely important state interest. Gillette v. N. D. Disciplinary Bd. Counsel, No. 09-1598, 2010 WL 2696741, at *2 (8th Cir. July 9, 2010). In addition, the Eighth Circuit found it was clear that the disciplinary proceedings were an ongoing state judicial proceeding while 7

noting that Gillette conceded those proceedings afforded him an adequate opportunity to raise any federal questions presented. Id. at *3. The three prerequisites to Younger abstention are still present and abstention remains the proper course.

D.

STATE COURT PROCEEDINGS

The Disciplinary Board argues that removal was improper because 28 U.S.C. §§ 1441 and 1443 only permit removal of actions brought in state court and a disciplinary action before the Disciplinary Board is not an action brought or commenced in state court. The argument is novel.1 It would be contradictory for the Court to conclude as part of its abstention analysis that there was an ongoing state judicial proceeding and then conclude removal was improper because the disciplinary action was not brought in state court. "The Supreme Court of North Dakota has declared that the Board is `an arm of this court.'" Gillette v. N. D. Disciplinary Bd. Counsel, No. 09-1598, 2010 WL 2696741, at *3 (8th Cir. July 9, 2010), (quoting Lashkowitz v. Disciplinary Bd., 410 N.W.2d 502, 504 (N.D. 1987)). The Court rejects the argument while at the same time noting that it is difficult to imagine a scenario in which this Court would not abstain from hearing a removed state disciplinary action.

III.

CONCLUSION The Court finds that it lacks jurisdiction over this action. The state disciplinary

proceedings do not raise any federal questions and Gillette has not satisfied the stringent

1

The argument was submitted on brief prior to the Eighth Circuit's recent ruling cited herein.

8

requirements for removal under 28 U.S.C. § 1443. Further, the Court finds that the Younger abstention doctrine clearly applies. For the foregoing reasons, the Plaintiff's motion for remand (Docket No. 2) is GRANTED. The Defendant's motion for stay (Docket No. 6) is DENIED AS MOOT. The matter is remanded to the Disciplinary Board of the Supreme Court of the State of North Dakota. IT IS SO ORDERED. Dated this 26th day of July, 2010. /s/ Daniel L. Hovland Daniel L. Hovland, District Judge United States District Court

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