IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 10, 2013 Session
STATE OF TENNESSEE EX REL., HERBERT S. MONCIER ET AL.
v. NANCY S. JONES ET AL.
Appeal from the Chancery Court for Davidson County
No. 11962 Carol L. McCoy, Chancellor
No. M2012-00778-COA-R3-CV - Filed June 6, 2013
Petitioner appeals the dismissal of his complaint, which asserted numerous claims relating,
inter alia, to the practice monitor condition of his suspension from the practice of law. The
trial court dismissed the complaint finding the defendants in the action were immune under
either sovereign immunity, judicial immunity, quasi-judicial quasi-prosecutorial immunity,
qualified immunity, or Tennessee Supreme Court Rule 9, Section 27 immunity. The trial
court further found that the action was a collateral attack on the ruling by the Tennessee
Supreme Court regarding Petitioner’s suspension; thus, it did not have subject matter
jurisdiction to rule on matters in the disciplinary proceedings. We affirm the trial court’s
ruling on all claims except for the Public Records Act, which we remand to the trial court for
a determination of whether the records requested are subject to inspection and whether they
have in fact been made available for inspection.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in
Part, Reversed in Part, Remanded
F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, J.J., joined.
Herbert S. Moncier, Knoxville, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General,
Talmage M. Watts, Assistant Attorney General, and Janet Irene M. Kleinfelter, Nashville,
Tennessee, for the appellees, Nancy S. Jones, Board of Professional Responsibility, Leda
Hollabaugh, Clarence Halmon, State of Tennessee, Harry P. Ogden, John S. Hicks, and
Baker, Donelson, Bearman, Caldwell & Berkowtitz, P.C.
OPINION
This case arises from a disciplinary action against attorney Herbert S. Moncier
commenced on July 30, 2008, which resulted in his suspension from the practice of law for
eleven months and twenty-nine days pursuant to an Order of Enforcement issued by the
Supreme Court on June 1, 2011, effective June 11, 2011. The suspension consisted of a forty-
five day full suspension followed by a conditional suspension for ten and a half months
during which time Mr. Moncier’s practice would be monitored.
This appeal derives from a Complaint and Application for a temporary restraining
order filed by Herbert S. Moncier, both individually and in the name of the State of
Tennessee on relation of Herbert S. Moncier (hereinafter “Mr. Moncier”) against Nancy
Jones; the Board of Professional Responsibility; the State of Tennessee judiciary; Harry P.
Ogden and John S. Hicks, who were appointed practice monitors over Mr. Moncier’s office
during different periods of his probation; and the law firm of Baker, Donelson, Bearman,
Caldwell, and Berkowitz, P.C., which had been appointed to provide practice monitors
during the probationary period (collectively “Defendants”).1
In the complaint filed on July 20, 2011, Mr. Moncier challenged the disciplinary
proceedings and sought to enjoin his suspension. Ms. Jones and the Board filed a Response
in Opposition on July 21, 2011.2 The trial court did not enter a temporary restraining order,
but entered an order setting the date for a hearing on the matter. Mr. Moncier filed an
Amended and Supplemental Complaint and Application for Temporary Restraining Order
on August 9, 2011, following which the Board filed a Response in Opposition with exhibits
1
This court heard oral arguments in three related cases involving Mr. Moncier’s suspension. One is
Herbert S. Moncier v. Bd. of Prof’l Responsibility, No. M2012-00779-COA-R3-CV, 2013 WL ____ (June
__, 2013); the other is State ex rel. Herbert S. Moncier, et al., v. Nancy S. Jones, et al., No. M2012-01429-
COA-R3-CV, 2013 WL __ (June__, 2013).
2
Mr. Moncier also challenged the suspension via a Petition for Judicial Review filed with the Circuit
Court for Knox County. Following a hearing, the circuit court affirmed in part and reversed in part the
disciplinary hearing panel’s decision and remanded to the panel for reconsideration. In December 2010, the
Tennessee Supreme Court issued an opinion in Bd. of Prof’l Responsibility v. Cawood, 330 S.W.3d 608, 608-
09 (Tenn. 2010), that held a petition for judicial review of a hearing panel judgment, in order to confer
jurisdiction upon a chancery court or circuit court must be sworn and state that it is the “first application for
writ.” In light of this opinion, the Board of Professional Responsibility filed a motion for the Knox County
Circuit Court to reconsider its previous opinion. In February 2011, the circuit court entered an order granting
the Board’s motion, ruling that the appeal was a nullity, and stating that the court never had jurisdiction. As
a result, the Judgment of the Hearing Panel was reinstated and Mr. Moncier had no further opportunity for
appeal to a trial court pursuant to Tennessee Supreme Court Rule 9, § 1.3.
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and the affidavit of Ms. Jones, and notice of supplemental authority. Mr. Moncier
subsequently filed several affidavits in support of his Application for a temporary injunction.
Following a hearing on August 11, 2011, the trial court denied the application for a
temporary restraining order and dismissed the action sua sponte finding that all Defendants
were immune from suit. In an Order entered on September 8, 2011, which incorporated the
transcript of its bench ruling and dismissed all claims, the trial court found that Defendants
had either sovereign immunity, judicial immunity, quasi-judicial immunity quasi-
prosecutorial immunity, qualified immunity, and/or Tennessee Supreme Court Rule 9,
Section 27 immunity. The trial court further found that the claims were a collateral attack on
the ruling by the Supreme Court; that the right to practice law was a privilege and not a right;
that during his probation, Mr. Moncier’s right to practice law was governed by the Order of
the Supreme Court dated June 1, 2011; and that the trial court did not have subject matter
jurisdiction over Mr. Moncier’s disciplinary proceedings.
On October 6, 2011, Mr. Moncier filed Motions for Post-Judgment Relief. On October
10, 2011, Mr. Moncier filed a Motion to Amend and Supplement the Complaint and Second
Amended and Supplemental Complaint. On January 23, 2012, Mr. Moncier filed a Motion
to Supplement the Complaint and for Expedited Hearing for Access to Public Records. On
January 30, 2012, Defendants filed an Opposition to the motion to supplement the complaint.
Mr. Moncier also filed a More Specific Statement for Access to Public Records. Thereafter,
Mr. Moncier filed a Notice of Filing of Public Records Act Communications, Notice of
Hearing, and Petition for Official Action pursuant to Bennett v. Stutts and Tennessee Code
Annotated § 29-35-109. Defendants filed a Response to Mr. Moncier’s Motions for Post-
Judgment Relief. A telephone hearing was held on February 9, 2012, on all pending matters.
The trial court denied Mr. Moncier’s requests for post-judgment relief and to amend by an
Order and Memorandum Opinion entered on March 5, 2012. Thereafter, Mr. Moncier filed
a timely appeal. Defendants filed a motion to dismiss the appeal contending that the issues
were moot. By an order entered on January 10, 2013, this court reserved judgment on that
motion pending briefing and oral argument.
A NALYSIS
In his complaint, Mr. Moncier raises numerous issues alleging, inter alia, that the
actions of the Defendants violated various constitutional rights and that the actions of the
Defendants were ultra vires. The issues before this court all involve questions of law, which
we review de novo with no presumption of correctness. Nelson v. Wal-Mart Stores, Inc., 8
S.W.3d 625, 628 (Tenn. 1999).
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I. T ENNESSEE S UPREME C OURT R ULE 9, S ECTION 27 IMMUNITY
“It is well settled that the licensing and regulation of attorneys practicing law in courts
of Tennessee is squarely within the inherent authority of the judicial branch of government.”
Smith Cnty. Educ. Ass’n v. Anderson, 676 S.W.2d 328, 333 (Tenn. 1984) (citing Belmont v.
Bd. of Law Examiners, 511 S.W.2d 461 (Tenn.1974)). “Furthermore, the ‘Supreme Court has
original and exclusive jurisdiction to promulgate its own Rules.”’ Id. (citing Petition of
Tennessee Bar Ass’n., 539 S.W.2d 805, 807 (Tenn.1976)). The Supreme Court’s rule making
authority includes the admission and supervision of members of the Bar of the State of
Tennessee. Id.3
Tennessee Supreme Court Rule 9 was promulgated pursuant to the Court’s inherent
supervisory power and “addresses the discipline of lawyers and the enforcement thereof.” 4
Brown v. Bd. of Prof’l Responsibility, 29 S.W.3d 445, 449 (Tenn. 2000). Tennessee Supreme
Court Rule 9, § 5 creates the Board of Professional Responsibility. The Board is an agent of
the Supreme Court and derives all of its powers and functions from the Supreme Court. Doe
v. Bd of Prof’l Responsibility, 104 S.W.3d 465, 472 (Tenn. 2003).
Section 27 of Rule 9 provides that: “Members of the board, district committee
members, Disciplinary Counsel and staff shall be immune from civil suit for any conduct in
the course of their official duties.” (Emphasis added). The trial court found Defendants were
protected by this immunity in that they were acting in their official capacities, and we agree.
The plain language of this rule establishes that Nancy Jones5 in her official capacity as
Disciplinary Counsel to the Board, the members of the Board of Professional Responsibility,
and the practice monitors and law firm appointed to provide practice monitors as agents of
the Board are all shielded from civil liability for the actions taken in the disciplinary
proceedings and thereafter, which were part of their official duties.
3
To the extent that Mr. Moncier makes any challenge to the validity or constitutionality of Tennessee
Supreme Court Rule 9, we note that our Supreme Court held in Barger v. Brock, 535 S.W.2d 337, 342 (Tenn.
1976), that the inferior courts “may not entertain any suit or action challenging the validity of any Rule of
the Court.”
4
On April 18, 2013, the Tennessee Supreme Court issued an order proposing substantial changes to
Rule 9. The Order sought comments from the bench, bar, and the public, with the comment period ending
on June 14, 2013. The proposed changes are not material to this appeal, however, we felt it important to note
the potential for change in Rule 9 in the future.
5
Mr. Moncier also filed suit against Nancy Jones individually, however, at no point does he allege
any facts that would give rise to individual liability, as all actions taken by Ms. Jones were in her official
capacity as Disciplinary Counsel for the Board of Professional Responsibility.
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II. A DDITIONAL IMMUNITIES
In addition to the immunity provided under Tennessee Supreme Court Rule 9, the state
employees named as Defendants were entitled to sovereign immunity and qualified
immunity. The doctrine of sovereign immunity provides that the State of Tennessee and its
employees in their official capacities are immune from suit except as the State consents to
be sued. Stewart v. State, 33 S.W.3d 785, 790 (Tenn. 2000); Greenhill v. Carpenter, 718
S.W.2d 268, 271 (Tenn. Ct. App. 1986) (quoting Cox v. State, 399 S.W.2d 776, 778 (Tenn.
1965)) (“A suit against a state official in his official capacity is a suit against the state.”).
Thus, Defendants acting in their official capacity are entitled to sovereign immunity unless
a statutory exception applies of which none are applicable.6 Therefore, the trial court properly
found the state employees had sovereign immunity.7
Qualified immunity generally provides immunity from liability for state employees
whose conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person should have known. See Lucas v. State, 141 S.W.3d 121, 134 (Tenn. Ct.
App. 2004). When a court determines whether qualified immunity applies, the court must
first determine whether the plaintiff has alleged a violation of a constitutionally protected
right, and then examine whether the established right was clearly established at the time of
the violation. Id. The burden of proving that the rights allegedly violated were clearly
established falls upon the plaintiff, not the defendant. Id. (citing Dominque v. Telb, 831 F.2d
673, 676 (6th Cir.1987)). In this action, all Defendants were acting pursuant to the June 2011
Order of Enforcement of the Supreme Court, which had full authority to issue disciplinary
sanctions to Mr. Moncier in its inherent authority to regulate the profession of law. Thus,
there is no basis upon which to find that Defendants were violating statutory or constitutional
rights upon which a reasonable person should have known. Id.8
6
We note that Mr. Moncier alleges an exception for declaratory judgment actions as set forth in
Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 849-50 (Tenn. 2008), however, as we note later in this
opinion, Mr. Moncier is no longer under probation and thus any issue regarding declaratory judgment would
be moot.
7
Mr. Moncier also argues that statutory sovereign immunity codified at Tennessee Code Annotated
§ 20-13-102(a) is unconstitutional. However, in Jones v. L & N R. Co., 617 S.W.2d 164, 170 (Tenn. Ct. App.
1981), it was held that “[t]he rule of sovereign immunity in Tennessee is both statutory and constitutional”
and that it is “not within the power of the courts to amend it.”
8
Having found that the Defendants Nancy Jones and the members of the Board of Professional
Responsibility are entitled to immunity under Tennessee Supreme Court Rule 9, qualified immunity, and
sovereign immunity, we do not need to address the other forms of immunity found by the trial court.
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We also note that Mr. Moncier brought this action against members of the judiciary
in their official capacity; the judges were not identified in Mr. Moncier’s Complaint. As the
trial court noted, judges are entitled to judicial immunity for any actions taken in their official
capacity unless those actions are taken in the complete absence of jurisdiction. Mercer v.
HCA Health Servs. of Tenn., Inc., 87 S.W.3d 500, 503-04 (Tenn. Ct. App. 2002) (citing
Webb v. Fisher, 72 S.W. 110 (Tenn. 1902)). We affirm the trial court’s finding that the
members of the judiciary who acted materially to this action were protected by judicial
immunity.
III. P RACTICE M ONITOR
It is also apparent from Mr. Moncier’s Complaint and appellate brief that he takes
issue with one condition of his probation, that condition being the requirement of the practice
monitor, and that the majority of the claims alleged arise from, and relate to, this condition.
For example, the fifth claim asserted by Mr. Moncier is that the practice monitor provision
is unconstitutionally vague and overbroad. The practice monitor condition of his probation
was mandated by the Supreme Court in its Order of Enforcement dated June 1, 2011. Thus,
any challenge to this condition in this appeal would be a collateral attack on the Supreme
Court’s order as the trial court correctly concluded and thereby dismissed the complaint. We
agree that any claims that are an attack on the Supreme Court’s order of June 2011 are a
collateral attack and thus subject to dismissal. See Sims v. Adesa Corp., 294 S.W.3d 581, 586
(Tenn. Ct. App. 2008) (stating it is “well settled in Tennessee that a party may not use a court
of general jurisdiction to collaterally attack an order of another court”). Further, Mr. Moncier
raises several issues relating to the ruling by Senior Judge Walter Kurtz in the first appeal
from the disciplinary board’s decision in the Knox County Circuit Court. For example, Mr.
Moncier’s seventh claim is that the application of Bd. of Prof’l Responsibility v. Cawood, 330
S.W.3d 608, by Judge Kurtz in his September 2010 judgment was in violation of his
constitutional rights. Again, such issues would amount to a collateral attack and therefore are
subject to dismissal.
IV. D UE P ROCESS
Mr. Moncier also raises several issues complaining of being denied a right to a remedy
in Tennessee courts and being deprived of his due process right to practice law. First, we note
that the license to practice law in this state is a privilege and not a right. Hughes v. Bd. of
Prof’l Responsibility, 259 S.W.3d 631, 641 (Tenn. 2008) (citing Tenn. Sup. Ct. R. 9, § 3.1
(2007)). Second, the Supreme Court provided the exclusive remedies and procedures for
attorney disciplinary proceedings in Rule 9, which as we noted earlier falls within the Court’s
inherent power to regulate our profession. Smith Cnty. Educ. Ass’n, 676 S.W.2d at 333.
While Mr. Moncier argues that the exercise of such procedure is inconsistent with the
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constitution and the doctrine of separation of powers, the Supreme Court in Belmont v. Bd.
of Law Examiners, specifically held to the contrary finding:
[T]hat an act of the legislature in aid of the inherent power of the judiciary is
constitutional; but one that conflicts with and supersedes the Court’s declared
requirements, and constitutes an attempted exercise of powers properly
belonging to the judicial branch by the legislative branch of government
violates Article II, Section 2 and Article VI, Section 1 of the Constitution of
Tennessee.
Belmont, 511 S.W.2d at 464 (citing Cantor v. Brading, 494 S.W.2d 139 (Tenn. Ct. App.
1973)).
Furthermore, Mr. Moncier’s probationary period expired June 10, 2012,9 after which
he returned to private practice without a practice monitor condition. Therefore, we are unable
to provide any relief for Mr. Moncier regarding this condition of his probation. Absent
limited exceptions not present here, if an action no longer provides a means of judicial relief
to the prevailing party we consider it moot. Lufkin v. Board of Prof. Resp., 336 S.W.3d 223,
226 (Tenn. 2011). A case or issue that becomes moot during the course of litigation will be
dismissed as moot. Jacks v. City of Millington Bd. of Zoning, 298 S.W.3d 163, 175 (Tenn.
Ct. App. 2009). The appeal process is part of the course of litigation. Clark v. Shoaf, 302
S.W.3d 849, 854 (Tenn. Ct. App. 2008) (citations omitted). Therefore, this issue is moot as
there is no relief that this court can provide.
V. O PEN M EETINGS A CT
Mr. Moncier also alleges that Ms. Jones and the members of Baker, Donelson,
Bearman, Caldwell & Berkovitz (“Baker Donelson”) violated Tennessee’s Open Meetings
Act, Tennessee Code Annotated §§ 8-44-101 et seq., by meeting as a de facto “governing
body” within the meaning of Tennessee Code Annotated § 8-44-102(b)(1) to deliberate
toward and make decisions for probation requirements without complying with Tennessee
Code Annotated §§ 8-44-102, 103, 104. In a related appeal, Moncier v. Bd. of Prof’l
Responsibility, No. M2012-00779-COA-R3-CV, this court thoroughly discussed whether the
Open Meetings Act applied to meetings of the Board of Professional Responsibility and held
that the Open Meetings Act did not apply because the Board was not created by legislative
action but was created by a Rule of the Tennessee Supreme Court and therefore was not a
public body. Id. (citing Tenn. Code Ann. § 8-44-102(b)(1); Dorrier v. Dark, 537 S.W.2d 888,
9
Pursuant to the order by the Supreme Court, Mr. Moncier’s suspension became effective on June
11, 2011, and expired by its terms on June 9, 2012.
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892 (Tenn. 1976)). As a result, it was not a governing body and thus not subject to the Open
Meetings Act. Id.
Furthermore, Mr. Moncier’s requested relief of this court is that we hold that all
decisions made for the designation of a practice monitor or probation conditions be held void
and of no effect. As we noted above, the probation period for Mr. Moncier has ended,
therefore, this issue is moot as there is no relief this court can provide. See Lufkin, 336
S.W.3d at 226; Jacks, 298 S.W.3d at 175; Clark, 302 S.W.3d at 854.
VI. P UBLIC R ECORDS A CT
Mr. Moncier asserts that the trial court erred in dismissing his Public Records Act
10
claim. The trial court did not state its basis for the dismissal of the Public Records Act
claim and Defendants did not address this issue in their brief.
On June 28, 2011, Mr. Moncier made a Public Records Request to the Board of
Professional Responsibility requesting several documents. Only two items from this request
are at issue in this appeal. Item 1 of this request was “a copy of the minutes of the meeting
of the BOPR on March 10, 2010 wherein the BOPR reviewed the hearing panel judgment
in my case.” The Board denied access to this item based upon Tennessee Supreme Court
Rule 9, § 25.3. Item 6 requested by Mr. Moncier was “[t]he lead pleading the BOPR filed in
the thirty (30) cases listed in the BOPR’s Petition to Rehear in BOPR v. Cawood wherein the
BOPR sought relief from a judicial review judgment based on Cawood.” The record indicates
that following Mr. Moncier’s request, the Board requested clarification as to Item 6. Mr.
Moncier responded as follows:
The request pertains to cases listed in the BOPR’s Petition to Rehear as being
affected by Cawood, where Disciplinary Counsel or the BOPR has taken any
action from Cawood. I requested the “lead pleading” filed by Disciplinary
Counsel or the BOPR in those cases. If consistent with my case, that “lead
pleading” would have been a Motion for Rule 60.02 relief filed by Disciplinary
Counsel or the BOPR. The issue of Cawood, however, could have been raised
in the other cases by other procedures such as modifications. Also, it may be
that an attorney raised Cawood in another proceeding and the BOPR filed
some pleading regarding the application of Cawood in response to that
attorney’s pleading.
10
In his complaint, Mr. Moncier alleges that his Public Records Act request is for documents not
covered by a previous Public Records Act request that was before a different chancellor and is the subject
of the appeal in Moncier v. Bd. of Professional Responsibility, No. M2012-00779-COA-R3-CV.
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In the Board’s response, by letter dated July 18, 2011, Mr. Moncier was informed that
due to the expansive nature of the request, it would take time to locate the case files and
retrieve the documents, and that an estimate of the time and reasonable costs would be
provided to him.
Mr. Moncier made another Public Records Act request on July 7, 2011, in which he
requested “copies of each rule, policy or procedure of the Tennessee Board of Professional
Responsibility other than those contained in Tenn. Sup. Ct. R. 9, including, but not limited
to all internal policies or procedures and/or delegations of authority by the BOPR to
Disciplinary Counsel.” In response, Mr. Moncier received a letter dated July 18, 2011, from
the Attorney General’s office, providing that thirty-four pages of paper had been identified
that were responsive to this request and that upon payment of $7.25, copies of the documents
would be provided to him. Mr. Moncier instead replied with a letter stating that he wished
to view the documents in person and make copies with his own scanning equipment. It
appears that following this, there was extensive communication between the parties as to
whether Mr. Moncier would be able to view the documents, make his own copies, or be
required to pay in order to access the requested documents.
In his Complaint, Mr. Moncier requested that the trial court hold that the minutes of
the March 10, 2011 meeting of the Board to review the Hearing Panel judgment were not
confidential pursuant to Tennessee Supreme Court Rule 9, Section 25. Mr. Moncier further
requested access to “items 1 and 6 of his June 28, 2011 Public Records Act request.” Mr.
Moncier also requested access to the documents requested on June 7, 2011.11
The Tennessee Public Records Act “governs the right of access to records of
government agencies in this state.” Memphis Publishing Co. v. Cherokee Children & Family
Servs, Inc., 87 S.W.3d 67, 74 (Tenn. 2002). Tennessee Code Annotated § 10-7-503(a)(2)(A)
provides that: “All state, county and municipal records12 shall, at all times during business
11
In his complaint, Mr. Moncier refers to both a July 7, 2011 request and a July 8, 2011 request. From
our review of the record, it appears that at all times he is actually referring to the July 7 request.
12
Tennessee Code Annotated § 10-7-503(a)(1)(A) states:
As used in this part and title 8, chapter 4, part 6, “public record or records” or “state record
or records” means all documents, papers, letters, maps, books, photographs, microfilms,
electronic data processing files and output, films, sound recordings or other material,
regardless of physical form or characteristics, made or received pursuant to law or ordinance
or in connection with the transaction of official business by any governmental agency.
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hours, . . . be open for personal inspection by any citizen of this state, and those in charge of
the records shall not refuse such right of inspection to any citizen, unless otherwise provided
by state law.” (Emphasis added).
According to Mr. Moncier’s allegation in his complaint, he was denied his request
based upon the assertion that the requested records were confidential. As this court noted in
the related appeal, Moncier v. Bd. of Prof’l Responsibility, No. M2012-00779-COA-R3-CV,
2013 WL ____ (June __, 2013), the disciplinary rules as adopted by the Tennessee Supreme
Court have the force and effect of law. Id. (citing The Tennessean v. Tenn. Dept. of
Personnel, No. 2005-02578-COA-R3-CV, 2007 WL 1241337, *7 (Tenn. Ct. App. April 27,
2007); Coats v. Smyrna/Rutherford County Airport Authority, No. M2000-00234-COA-R3-
CV, 2001 WL 1589117 at *6 (Tenn. Ct. App. Dec. 13, 2001); Clinard v. Blackwood, No.
01A01-9801-CV-00029, 1999 WL 976582, at *6 (Tenn. Ct. App. Oct. 28, 1999) aff’d, 46
S.W.3d 177 (Tenn. 2001) (citing Gracey v. Madden, 769 S.W.2d 497, 504 (Tenn. Ct.
App.1989) (Koch, J., dissenting)); King v. King, No. 89-46-11, 1989 WL 122981, at *11
(Tenn. Ct. App. Oct. 18, 1989) (Koch, J. concurring) (No Tenn. R. App. P. 11 application
filed)). Thus, this court concluded that Tennessee Supreme Court Rule 9 “is a law within the
meaning of the exception to public inspection of records found at the end of Tennessee Code
Annotated § 10-7-503(a)(2)(A).” Id.
Under Tennessee Supreme Court Rule 9, Section 25, some public records remain
confidential and thus are excluded as public records. The Section provides:
25.1. All matters, investigations, or proceedings involving allegations of
misconduct by or the disability of an attorney, including all hearings and all
information, records, minutes, files or other documents of the Board, district
committee members and Disciplinary Counsel shall be confidential and
privileged, and shall not be public records, until or unless:
(a) a recommendation for the imposition of public discipline, without the
initiation of a formal disciplinary proceeding pursuant to Section 8.2, is filed
with the Supreme Court by the Board; or
(b) a petition to initiate a formal disciplinary proceeding is filed pursuant to
Section 8.2; or
(c) the respondent-attorney requests that the matter be public; or
(d) the investigation is predicated upon conviction of the respondent-attorney
for a crime; or
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(e) in matters involving alleged disability, this Court enters an order
transferring the respondent-attorney to disability inactive status pursuant to
Section 21.
Further, Rule 9 states that “[a]ll work product and work files (including internal
memoranda, correspondence, notes and similar documents and files) of the Board, district
committee members, and Disciplinary Counsel shall be confidential and privileged and shall
not be public records.” Tenn. R. Sup. Ct. 9, § 25.3. Additionally, “nothing in this Section is
intended to limit or repeal any confidentiality or privilege afforded by other law.” Id. at §
25.8.
As we noted previously, the trial court made no ruling on the Public Records Act
claim. Therefore, we remand this action to the trial court solely for the determination of
whether Item 1 requested by Mr. Moncier in the June 28, 2011 request is or is not
confidential pursuant Tennessee Supreme Court Rule 9 and whether the other public records,
whose qualification for inspection is not in dispute, have in fact been made available for
inspection during regular business hours as required by Tennessee Code Annotated § 10-7-
503(a)(2)(A).
VII. R ECUSAL OF T RIAL J UDGE
Mr. Moncier requested the trial judge recuse herself, arguing that the trial court
demonstrated bias, and that the case be assigned to another judge. The recusal request was
made prior to July 1, 2012, prior to the effective date of Tennessee Supreme Court Rule
10(B); thus, the former legal principles apply. Baker v. Baker, No. M2010-01806-COA-R3-
CV, 2012 WL 764918, at *6 (Tenn. Ct. App. Mar. 9, 2012). Under the Code of Judicial
Conduct in effect prior to July 1, 2012, decisions concerning recusal are addressed to the
discretion of the judge asked to be recused and “the judge’s decision will not be reversed on
appeal unless a clear abuse appears on the face of the record.” See State v. Hines, 919 S.W.2d
573, 578 (Tenn. 1995). Based upon the record before us, we are unable to conclude that the
trial judge abused her discretion in denying the motion. Thus, we find no error with the
denial of the motion to recuse. Baker, 2012 WL 764918, at *6.
VIII. M OTION FOR P OST-J UDGMENT R ELIEF
Mr. Moncier also alleges that the trial court erred in denying his consolidated motions
for post-judgment relief, which were filed following the trial court’s dismissal of the action.
Several of Mr. Moncier’s motions sought to seek additional relief and assert new claims.
Pursuant to the Rules of Civil Procedure, Mr. Moncier was unable to amend his complaint
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without leave of the trial court. We find the trial court was fully within its discretion to deny
such relief and to deny Mr. Moncier’s requests to alter or amend as there was no basis for
such relief. See Tenn. R. Civ. P. 59, 60.
I N C ONCLUSION
The judgment of the trial court is affirmed in all respects save the issue of Mr.
Moncier’s Public Records Act claim, which determination is reversed and the claim
remanded for further proceedings. Thus, the dismissal of all claims against all Defendants
other than the claim against the Board of Professional Responsibility as it pertains to the
public records request is affirmed. The costs of appeal are assessed against the Appellant,
Herbert S. Moncier.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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