United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 20, 2009 Decided May 1, 2009
No. 08-7121
IN RE: MONTGOMERY BLAIR SIBLEY,
RESPONDENT
Montgomery Blair Sibley argued the cause and filed the
briefs for respondent.
Brian D. Netter, appointed by the court, argued the cause as
amicus curiae. With him on the brief was Andrew J. Pincus.
Before: SENTELLE, Chief Judge, TATEL and GRIFFITH,
Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.
SENTELLE, Chief Judge: In March 2008, the Supreme Court
of Florida suspended Montgomery Blair Sibley from the practice
of law for three years for two counts of misconduct: contempt
of court for his failure to pay child support and filing frivolous
claims and appeals. Sibley is a member of the bar of this court.
Pursuant to Rule 46 of the Federal Rules of Appellate Procedure
and this court’s inherent powers, we issued an order to show
cause why the imposition of reciprocal discipline on Sibley
would be unwarranted. We subsequently appointed amicus
curiae to assist the court and heard argument at Sibley’s request.
The issues before the court are whether the procedures
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employed by the Florida Supreme Court and the Referee
appointed by that court were so lacking in notice or the
opportunity to be heard as to constitute a deprivation of due
process and whether the Florida Supreme Court issued a
sanction with such infirmity of proof as to require further
review. We find that Sibley has failed to demonstrate that there
was a lack of notice or infirmity of proof and thus suspend
Sibley from practicing before this court for three years, nunc pro
tunc to May 12, 2008, on the same conditions as imposed by the
Florida Supreme Court.
Background
Pursuant to a marital settlement agreement, Sibley was
obligated to pay his former wife $4,000 per month in child
support if he moved out of South Florida. Sibley moved out of
the area in May 2000 and failed subsequently to pay any child
support. On August 5, 2002, the Circuit Court of the Eleventh
Judicial Circuit found that Sibley’s financial situation had not
substantially changed since he agreed to the marital settlement
and, therefore, found him to be in contempt of court for wilfully
failing to pay the support in violation of the court’s order. The
court sentenced Sibley to a deferred 90 days of imprisonment
pending an opportunity for Sibley to purge himself of the
contempt by making three monthly installments to satisfy his
overdue child support obligations. The court subsequently
increased the sentence for contempt to an indefinite term or until
the contempt was purged. When Sibley missed the first
payment, the Eleventh Judicial Circuit ordered Sibley’s
immediate incarceration. On appeal, the Third District Court of
Appeal upheld Sibley’s contempt and child support orders
finding that Sibley could either sell personal property or ask his
wealthy father for the amount. Sibley v. Sibley, 833 So. 2d 847,
848-49 (Fla. Dist. Ct. App. 2002). The appellate court noted
that Sibley’s conduct constituted “the very epitome of a wilful,
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contemptuous refusal to obey a binding order of the court.” Id.
at 849. One judge dissented, noting that the record did not
adequately support the proposition that Sibley had sufficient
personal property to sell to obtain the purge amount and that the
assets of Sibley’s father were not considered by the trial court
and thus could not be considered on appeal. Id. at 850-53
(Cope, J., dissenting). Sibley unsuccessfully petitioned for
review by the Florida Supreme Court, Sibley v. Sibley, 854 So.
2d 660 (Fla. 2003), and the Supreme Court of the United States
denied Sibley’s motion for a stay, 540 U.S. 1100 (2004), as well
as his petition for writ of certiorari, 540 U.S. 1109 (2004).
In a related proceeding, the Third District Court rejected an
appeal by Sibley of two Circuit Court orders compelling
payment of attorneys fees for Sibley’s former wife and tuition
for Sibley’s children. The Third District Court granted Sibley’s
former wife’s motion for sanctions and barred Sibley from
representing himself in further appeals. Sibley v. Sibley, 885 So.
2d 980 (Fla. Dist. Ct. App. 2004). The court noted that Sibley
had initiated 25 self-represented appeal proceedings in Florida
courts, 24 of which were found meritless, and filed at least 12
federal court actions in Florida (all dismissed) against various
judges assigned to his cases, the court system, and his former
wife, plus a federal action in Delaware against his former wife
which was dismissed for lack of subject matter jurisdiction. Id.
at 986. Because Sibley’s numerous appeals served as “an
unending source of vexatious and meritless litigation,” the
appellate court barred Sibley from further self-representation in
that court. Id. at 988. The Florida Supreme Court denied
Sibley’s petition for review, Sibley v. Sibley, 901 So. 2d 120
(Fla. 2005), and the United States Supreme Court denied
certiorari, 546 U.S. 813 (2005).
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Based on a recommendation from the Second Judicial
Circuit Grievance Committee, on July 12, 2006 the Florida Bar
filed a complaint against Sibley alleging two violations of the
rules regulating the Florida Bar. Count I alleged that Sibley
violated Florida Bar Rule 4-8.4(h), which provides that a lawyer
engages in misconduct if he should “wilfully refuse, as
determined by a court of competent jurisdiction, to timely pay
a child support obligation.” Count II alleged that Sibley violated
Florida Bar Rule 4-3.1, which prohibits a lawyer from making
a claim in court “unless there is a basis in law and fact for doing
so that is not frivolous.” Pursuant to Florida Bar Rule 3-7.6(a),
a Referee was designated to handle Sibley’s case.
Sibley sought extensive discovery from the Florida Bar and
sought subpoenas for the depositions of the judge on the circuit
court of the Eleventh Judicial Circuit and judges on the Florida
Third District Court of Appeal, as well as “documentary
evidence to contradict the findings of fact in the Third District
Court of Appeals’ decision.” Sibley also filed several writs of
prohibition. All of the motions were denied. Sibley then
responded to the charges with “affirmative defenses”; the
Referee struck the “defenses” pursuant to a motion from the
Florida Bar but noted Sibley could raise the same issues during
the final hearing. When the Referee was unable to reach Sibley
to set a mutually convenient time for the final hearing, the
Referee scheduled the final hearing for April 16, 2007. Five
days prior to the hearing, Sibley filed a “Motion to Dismiss or,
Alternatively, Fifth Affidavit and Motion to Disqualify, or
Alternatively, Motion to Continue Hearing.” In his motion,
Sibley indicated he had professional obligations that would
prevent him from appearing in April but that he would make
himself available by telephone for a “scheduling hearing.” The
Referee denied the motion. On the final hearing date, Sibley
failed to appear and the Referee conducted the hearing without
him. After the final hearing both parties submitted proposed
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reports to the Referee. Sibley also filed a request with the
Florida Supreme Court to subpoena the Referee so he could
advance his theory that the Referee was acting improperly.
The Referee issued his report concluding that a court of
competent jurisdiction had found that Sibley wilfully refused to
pay his child support obligation in a timely manner and,
therefore, recommended that Sibley be found guilty of violating
Rule 4-8.4(h). The Referee also concluded that the Third
District Court of Appeals’ sanction of Sibley for filing vexatious
and meritless litigation warranted recommending that Sibley be
found guilty of violating Rule 4-3.1. The Referee recommended
a three-year suspension in light of six aggravating factors:
Sibley’s “dishonest or selfish motive,” his “pattern of
misconduct,” “multiple offenses,” intentional failure to comply
“with rules or orders of the disciplinary agency,” “refusal to
acknowledge the wrongful nature” of the conduct, and his
“substantial experience in the practice of law.”
The Florida Supreme Court, after full briefing but without
oral argument, approved the Referee’s report and entered a
suspension order. Florida Bar v. Sibley, 979 So. 2d 221 (Fla.
2008), cert. denied, 129 S. Ct. 41 (2008). The suspension order
was stayed until May 12, 2008, to allow Sibley to seek review
in the Supreme Court of the United States. Sibley then filed
post-discipline motions challenging the authority and power of
the Referee and some of the Florida Supreme Court justices to
act as constitutional officers.1 Specifically, Sibley asserted that
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Sibley also challenged the Referee and the justices’
authority in federal court. The United States District Court for the
Northern District of Florida rejected Sibley’s argument that 4 U.S.C.
§§ 101 and 102 imposed oath of office obligations that the Referee
and justices did not fulfill. See Sibley v. Florida Bar, No. 4:08cv219-
RH/WCS, 2008 WL 3471781 (N.D. Fla. Aug. 11, 2008). Sibley filed
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they were without authority to act because they allegedly failed
to properly execute loyalty oaths with their respective courts.
The Florida Supreme Court rejected this argument. Florida Bar
v. Sibley, 995 So. 2d 346 (Fla. 2008), cert. denied, 2009 WL
425340 (Feb. 23, 2009).
Analysis
Federal Rule of Appellate Procedure 46(b)(1)(A) provides
that “[a] member of the court’s bar is subject to suspension or
disbarment by the court if the member . . . has been suspended
or disbarred from practice in any other court.” After considering
any response from the attorney, the court shall impose the
identical discipline unless the attorney demonstrates that:
(1) the procedure was so lacking in notice or
opportunity to be heard as to constitute a deprivation of
due process; or
(2) there was such an infirmity of proof establishing
the misconduct as to give rise to the clear conviction
that this Court could not, consistent with its duty,
accept as final the conclusion on that subject; or
(3) the imposition of the same discipline by this Court
would result in grave injustice; or
(4) the misconduct warrants substantially different
discipline.
a separate petition for writ of habeas corpus in district court that was
rejected because Sibley was not in custody. Sibley v. Lewis, No.
4:08cv243-RH/WCS, 2008 WL 3982654 (N.D. Fla. Aug. 24, 2008).
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D.C. Cir. Rules, App. II, Rule IV(c); see also Selling v. Radford,
243 U.S. 46, 51 (1917) (establishing same criteria for reciprocal
discipline based on state court discipline order). The burden of
showing why the court should not impose reciprocal discipline
rests with Sibley. In re Calvo, 88 F.3d 962, 967 (11th Cir.
1996); In re Theis, 662 F.2d 771, 772 (D.C. Cir. 1980) (noting
that Selling found state disbarment gives rise to rebuttable
presumption that attorney lacks character to remain member of
federal bar). Sibley only alleges that he was not afforded the
requisite due process during his disciplinary proceedings and
that there was an infirmity of proof establishing the misconduct
and thus we only address these two issues.
A. Due Process
Sibley challenges the sufficiency of the Florida disbarment
proceedings, contending that the suspension order is void
because the Florida Supreme Court justices and the Referee
failed to take the requisite oaths. This argument, however, has
been fully litigated and rejected by the Florida state courts.
Florida Bar v. Sibley, 995 So. 2d 346 (Fla. 2008), cert. denied,
129 S. Ct. 1348 (2009). In addition, Sibley pursued this
challenge in the United States District Court for the Northern
District of Florida and the challenge was dismissed pursuant to
the Rooker-Feldman bar on collateral attacks against a state
court decision. Sibley v. Florida Bar, No. 4:08cv219-RH/WCS,
2008 WL 4525395 (N.D. Fla. Oct. 3, 2008). See also In re
Cook, 551 F.3d 542, 547-48 (6th Cir. 2009), Richardson v.
District of Columbia Court of Appeals, 83 F.3d 1513, 1514-15
(D.C. Cir. 1996). Because administration of the relevant oaths
is a question of state law, this court cannot look beyond the
controlling decisions of the Florida state courts.
Sibley also asserts that the length of the proceedings in and
of itself was a violation of due process, as was the failure of the
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Florida Bar to present charges “under oath” or to allow him the
opportunity to call specific witnesses in his defense. Contrary
to Sibley’s assertions, the Speedy Trial Clause of the Sixth
Amendment of the Constitution simply does not apply to non-
criminal cases such as this attorney discipline case. In re Calvo,
88 F.3d at 967 (“Disbarment proceedings are not criminal
proceedings.”). Moreover, only a little over a year and a half
passed between the filing of the formal complaint against Sibley
on July 12, 2006, and his suspension by the Supreme Court of
Florida on March 7, 2008. In addition, there is no requirement
that charges be brought under “oath,” only that “formal charges
[be made] in writing that give fair and adequate notice of the
nature of the alleged misconduct.” Model Rules for Lawyer
Disciplinary Enforcement R. 11(D); see also In re Ruffalo, 390
U.S. 544, 550 (1968) (procedural due process includes “fair
notice of the charge”). Sibley’s reliance on Ex Parte Burr, 22
U.S. 529 (1824) is misplaced. Ex Parte Burr does not require
disciplinary proceedings to be brought under oath but rather
details the unusual circumstances in which Burr did not have
charges brought against him but instead invited the Court to
undertake disciplinary proceedings. The witnesses Sibley
sought to produce were the trial judge who held Sibley in
contempt for failure to pay his child support and five judges on
the Florida Third District Court of Appeal who found Sibley to
be filing meritless appeals. The Referee’s denial of Sibley’s
motion to subpoena these “witnesses” was well within his
discretion. See United States v. Morgan, 313 U.S. 409, 422
(1941) (integrity of mental process of a judge cannot be subject
to scrutiny). Furthermore, Sibley has no confrontation right in
an attorney discipline case. See Rosenthal v. Justices of the
Supreme Court of Cal., 910 F.2d 561, 565 (9th Cir. 1990).
Sibley also argues that the Referee’s failure to grant a
continuance for the final hearing date violated due process.
Sibley, however, received notice of the final hearing date and
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moved for a continuance. When that continuance was denied,
Sibley simply elected not to appear. Thus, Sibley has in no way
shown that the proceedings were so lacking in fairness that his
due process rights were violated.
Sibley also challenges the Referee’s striking of his
“affirmative defenses.” While the Referee did grant the Florida
Bar’s motion to strike the affirmative defenses, he later provided
that even though the motion to strike was granted, Sibley could
raise his defenses during the final hearing. Therefore, Sibley
could have raised any defenses at the final hearing, but he chose
not to attend.
Finally, Sibley asserts that the Referee’s adoption of much
of the Florida Bar’s report as his own renders the Referee’s
report infirm. For this proposition, Sibley relies on Anderson v.
City of Bessemer City, 470 U.S. 564, 572 (1985), in which the
Supreme Court noted that it had “criticized courts for their
verbatim adoption of findings of fact prepared by prevailing
parties . . . .” Sibley’s reliance is poorly taken, as the Supreme
Court went on to suggest “that even when the trial judge adopts
proposed findings verbatim, the findings are those of the court
and may be reversed only if clearly erroneous.” Id. (citing
United States v. Marine Bancorporation, 418 U.S. 602, 615 n.13
(1974)). In any event, we are not sitting as a court of review to
discover error in the Referee’s or the Florida courts’
proceedings. We only ask whether that procedure “was so
lacking in notice or opportunity to be heard as to constitute a
deprivation of due process; or there was such an infirmity of
proof establishing the misconduct as to give rise to the clear
conviction that this Court could not, consistent with its duty,
accept as final the conclusion on that subject . . . .” D.C. Cir.
Rules App. II, Rule IV(c). The adoption by a court of the court-
appointed referee’s report meets none of those criteria.
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B. Infirmity of Proof
Sibley also challenges the factual basis for his suspension,
arguing that the contempt order for failing to pay child support
was not based upon record evidence. Relying on the dissenting
opinion in the Third District Court of Appeal, Sibley alleges that
the Florida Supreme Court found that his father, and not Sibley,
had failed to pay the child support. This is simply not the case.
In her contempt order, the trial court judge in Sibley’s state
divorce proceeding very clearly found that Sibley’s actions were
“the essence of wilful refusal to obey a Court order.”
Respondent’s Appendix at 12, 13. That order and the court-
imposed sanction were upheld on appeal. Even the dissenting
opinion upon which Sibley relies addressed only the propriety
of the purge amount; no judge questioned the finding of a wilful
violation underlying the contempt citation. And in any event,
Sibley seems to forget that once the majority of a court has
spoken, the best the dissent can do is offer one judge’s opinion
as to what the case law should be but is not. The dissent is thus
doubly immaterial.
Sibley also challenges the finding that he violated Florida
Bar Rule 4-3.1 which prevents lawyers from bringing claims
“unless there is a basis in law and fact for doing so that is not
frivolous.” The Third District Court of Appeal concluded that
Sibley was “an unending source of vexatious and meritless
litigation.” Sibley, 885 So. 2d at 988. Sibley asserts that because
the court did not specifically find that his litigation was
“frivolous,” the requirements of Rule 4-3.1 are not met. It is
clear, however, from the full reading of the decision noting that
Sibley had filed 24 unsuccessful meritless appeals in state court,
among others, that the standards of Rule 4-3.1 are met. There is,
therefore, no infirmity of proof as to this charge.
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Conclusion
For the foregoing reasons, we suspend Sibley from
practicing before this court for three years, nunc pro tunc to
May 12, 2008, on the same conditions as imposed by the Florida
Supreme Court. Sibley’s reinstatement to the bar of this court
is contingent upon certification that he has met the conditions of
reinstatement imposed by the Florida Supreme Court. Sibley is
prohibited from holding himself out to be an attorney at law
licensed to practice before the United States Court of Appeals
for the District of Columbia Circuit during the suspension.