James A. Neal v. Jimmie L. Wilson

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________

No. 96-2112
___________

James A. Neal, Director of *
Arkansas Supreme Court *
Committee on Professional *
Conduct, *
*
Plaintiff/Appellee, *
*
v. *
*
Jimmie L. Wilson, *
*
Defendant/Appellant, *
*
v. *
*
Jack Holt, Jr., Member of the *
Supreme Court of the State of *
Arkansas; Robert H. Dudley, *
Member of the Supreme Court of * Appeal from the United States
the State of Arkansas; Tom * District Court for the
Glaze, Member of the Supreme * Eastern District of Arkansas.
Court of the State of Arkansas; *
Donald Corbin, Member of the *
Supreme Curt of the State of *
Arkansas; John Lineberger, *
Chancery Judge of the Fourth *
Judicial District of Arkansas; *
Members of Arkansas Supreme *
Court Committee on Professional *
Conduct; Robert Donovan, *
Attorney for the Arkansas *
Supreme Court Committee on *
Professional Conduct; John Doe, *
Defendants and other unknown *
John Doe Defendants, known and *
unknown, each individually and *
in his official capacity as set *
out herein; Ken Reeves, *
Chairman; Sue Winter, Secretary;*
Carlton Bailey, Member of the *
Arkansas Supreme Court Committee*
on Professional Conduct; Allen *
Humphries, Member of the *
Arkansas Supreme Court Committee*
on Professional Conduct; *
Richard A. Reed, Member of the *
Arkansas Supreme Court Committee*
on Professional Conduct; Burt *
Virden, Member of the Arkansas *
Supreme Court Committee on *
Professional Conduct; Patricia *
Youngdahl, Member of the *
Arkansas Supreme Court Committee*
on Professional Conduct, *
*
Third Party *
Defendants/Appellees. *
___________

Submitted: January 15, 1997

Filed: April 22, 1997
___________

Before WOLLMAN and FLOYD R. GIBSON, Circuit Judges, and
MONTGOMERY,1 District Judge.
___________

WOLLMAN, Circuit Judge.

Jimmie Wilson appeals from the district court’s2 order remanding his
disbarment case to state court and dismissing a complaint Wilson filed
against various Arkansas officials. We affirm.

I. Background
The background of this case stretches back almost seventeen years and
involves numerous proceedings in state and federal court.

1
The HONORABLE ANN D. MONTGOMERY, United States District Judge
for the District of Minnesota, sitting by designation.
2
The Honorable H. Franklin Waters, United States District
Judge for the Western District of Arkansas, sitting by designation.

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Wilson, an African-American from Helena, Arkansas, has been a lawyer,
farmer, civil rights activist, and state legislator. Wilson borrowed money
for his farm from the Farmers Home Administration between 1980 and 1982,
securing the loan with a lien on his crops. Wilson attempted to avoid the
government lien and was convicted in 1985 of knowingly disposing of
property mortgaged to a government agency, unlawfully converting money of
the United States, and conspiring to defraud the United States. See United
States v. Wilson, 806 F.2d 171 (8th Cir. 1986). His conviction was
ultimately reversed in 1989 because of a Batson violation at his trial.
See United States v. Wilson, 884 F.2d 1121 (8th Cir. 1989) (en banc).
Wilson subsequently pleaded guilty in 1990 to five misdemeanor counts of
converting property mortgaged or pledged to a farm credit agency and
converting public money to personal use and was sentenced to imprisonment
and probation.

Because of his conviction, Wilson was suspended from practice by the
United States District Court for the Eastern District of Arkansas in
January of 1991, pending the outcome of any disciplinary proceedings. The
court referred the matter to the Arkansas bar authorities, specifically
James Neal, the executive director of the Arkansas Supreme Court Committee
on Professional Conduct (the Committee). The Committee decided that
Wilson’s conduct warranted disbarment. After Wilson refused to voluntarily
surrender his license, the Committee filed a complaint for disbarment in
the Phillips County Circuit Court. All of the circuit judges in that
circuit recused themselves, and the Chief Justice of the Arkansas Supreme
Court assigned a circuit judge from another circuit to hear the case. This
circuit judge dismissed the complaint in 1993 on the ground it was time-
barred, a ruling that was reversed by the Arkansas Supreme Court. See Neal
v. Wilson, 873 S.W.2d 552 (Ark. 1994) (Wilson I).

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 The crux of Wilson’s federal case stems from what happened when the
case was remanded by the Arkansas Supreme Court to the Phillips County
Circuit Court. The appointed circuit judge recused himself because of his
disagreement with the supreme court’s opinion. The supreme court
subsequently appointed another outside circuit judge, John Lineberger, to
hear the case in 1994. Wilson moved for Judge Lineberger’s
disqualification on the basis that there was a new circuit judge in
Phillips County who had not recused himself who should hear the case. That
judge was Olly Neal, an African-American, who had been elected in 1992 in
a minority-majority district, newly created pursuant to a consent decree
in a Voting Rights Act lawsuit. Neal was Wilson’s former law partner and
one of the attorneys who had represented Wilson in his criminal case. Neal
also testified at Wilson’s federal trial.

Judge Lineberger denied the disqualification motion on January 5,
1995, and set a trial date of June 13, 1995. At Wilson’s instigation, a
hearing was set before Judge Neal. Following the hearing, Judge Neal ruled
on May 24, 1995, that he had jurisdiction. He then decided the merits of
the case, concluding that Wilson’s conduct warranted only a letter of
reprimand. The Committee sought a writ of certiorari from the Arkansas
Supreme Court. The supreme court issued the writ on June 12, 1995, ruling
that Judge Neal did not have jurisdiction and quashing Judge Neal’s orders.
See Neal v. Wilson, 900 S.W.2d 177 (Ark. 1995) (per curiam) (Wilson II).

On June 13, 1995, before Wilson’s trial began, he removed the case
from Judge Lineberger’s court to the district court, citing 28 U.S.C.
§ 1443(1) as the basis for removal. Wilson filed a counterclaim and third-
party complaint against numerous state officials, including Neal, the
members of the Committee, the justices of the Arkansas Supreme Court who
formed the majority in

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Wilson II, Judge Lineberger, and John Doe defendants. Wilson alleged
violations of his federal constitutional and statutory rights and sought
declaratory and injunctive relief. See Neal v. Wilson, 920 F. Supp. 976,
982-83 (E.D. Ark. 1996) (Wilson III).

The case was assigned to United States District Judge George Howard,
Jr. After briefing, Judge Howard recused himself because of the district
court’s initial reference of Wilson to the state bar authorities for
disciplinary action in 1991 and directed that the case be assigned to a
judge from outside the Eastern District of Arkansas. Judge Waters was
subsequently assigned the case.
The district court first concluded that Wilson’s attempted removal
of his disbarment case was improper. Even assuming that Wilson had pleaded
causes of action under 42 U.S.C. § 1981 or the Voting Rights Act, the court
concluded that Wilson had not met the requirements for section 1443(1)
removal because he had failed to show that he would be unable to adequately
enforce his rights in state court. The court also concluded that the
removal was untimely and remanded the case to state court. See Wilson III,
920 F. Supp. at 983-86. With regard to the merits of Wilson’s complaint,
the district court concluded that it should abstain under the Younger
abstention doctrine. It also concluded that the Rooker-Feldman doctrine
precluded what would be essentially federal court review of the Arkansas
Supreme Court’s decision regarding Judge Lineberger’s appointment. The
court then dismissed Wilson’s complaint. See id. at 986-991. Wilson
subsequently moved for reconsideration and requested that Judge Waters
recuse himself for the same reason given by Judge Howard. The district
court denied both motions.

On appeal, Wilson argues that he met the requirements of section 1443
for removal, that his petition for removal was timely,

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that the district court erred in abstaining, that the district court erred
applying the Rooker-Feldman doctrine, and that Judge Waters erred in
refusing to recuse himself.

II. Discussion

A. Removal/Remand

We may review the district court’s remand order because this case
involves a section 1443 removal. See 28 U.S.C. § 1447(d); Doe v. Berry,
967 F.2d 1255, 1257 (8th Cir. 1992) (per curiam). We conclude that the
district court properly remanded Wilson’s case to the state courts because
Wilson’s notice of removal was untimely; alternatively, the district court
correctly concluded that Wilson did not meet the requirements for removal
under section 1443(1).

Wilson admits that he was required to file his notice of removal
“within thirty days after receipt . . . of a copy of an amended pleading,
motion, order or other paper from which it may first be ascertained that
the case is . . . or has become removable.” 28 U.S.C. § 1446(b). Wilson
argues that the relevant “order or other paper” was the Arkansas Supreme
Court’s June 12, 1995, opinion in Wilson II affirming Judge Lineberger’s
appointment and quashing Judge Neal’s orders. We disagree. As the
district court stated, the Arkansas Supreme Court’s opinion in Wilson II
affirming the validity of its own prior action did not convert an otherwise
unremovable case into a removable one. See Wilson III, 920 F. Supp. at
986. The thrust of Wilson’s complaint is that his rights were violated
when the Arkansas Supreme Court appointed Judge Lineberger to hear his
case. The Arkansas Supreme Court made this appointment in May of 1994, and
Wilson did not file his notice of removal within thirty days of his receipt
of this order. Even

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reading the record in the light most favorable to Wilson, the thirty-day
limitation period began running no later than January 5, 1995, the day on
which Judge Lineberger overruled Wilson’s motion for disqualification in
which Wilson raised his argument that Judge Neal had jurisdiction over the
case. Wilson’s June 13, 1995, notice of removal was thus untimely by a
factor of months.

Even assuming that Wilson’s removal notice was timely, the district
court correctly ruled Wilson had not established his eligibility for a
section 1443(1) removal. Under that statute, Wilson must show that he
relies upon a law providing for equal civil rights stated in terms of
racial equality. See 28 U.S.C. § 1443(1); Georgia v. Rachel, 384 U.S. 780,
792 (1966). Although we doubt that Wilson has done so, we will assume, as
did the district court, that Wilson has sufficiently asserted causes of
action under the Voting Rights Act and 42 U.S.C. § 1981. See City of
Greenwood v. Peacock, 384 U.S. 808, 825 (1966) (Voting Rights Act and
§ 1981 fall within statutory definition of § 1443(1)). Wilson must show
that he is denied or cannot enforce that right in state court. See 28
U.S.C. § 1443(1). “Removal is warranted only if it can be predicted by
reference to a law of general application that the defendant will be denied
or cannot enforce the specified federal rights in the state courts.”
Rachel, 384 U.S. at 800. Further, in “the unusual case . . . ‘an
equivalent basis could be shown for an equally firm prediction that the
defendant would be "denied or cannot enforce” the specified federal rights
in the state court.’” See Johnson v. Mississippi, 421 U.S. 213, 219 (1975)
(quoting Rachel, 384 U.S. at 804).
Wilson has not met these stringent requirements. He has not shown
that there is a state law preventing him from raising his federal claims
in state court, nor has he shown the basis for an “equally firm prediction”
that he will be unable to protect his

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federal rights in state court. As the district court stated, Wilson’s
contentions regarding the defendants “boil down to little more than a
belief by him that, since the state actors disagree with him and his
lawyers, they must have racially discriminatory motives.” Wilson III, 920
F. Supp. at 990. If, as Wilson fears, the Arkansas state courts do not
respect and enforce his federal rights, Wilson’s proper course of action
is to seek direct review in the United States Supreme Court. See Berry,
967 F.2d at 1258 (“The issues involved . . . can be decided in the state
courts, which have equal responsibility for ruling on federal
constitutional issues. Berry may then seek review of any adverse rulings
in the United States Supreme Court.”).3

3
Wilson makes assertions regarding the motives and possible
bias of the state bar authorities. As the Supreme Court has
stated:

It is not enough to support removal under § 1443(1) to
allege or show that the defendant’s federal equal civil
rights have been illegally and corruptly denied by state
administrative officials in advance of trial . . . . The
motives of the officers bringing the charges may be
corrupt, but that does not show that the state trial
court will find the defendant guilty if he is innocent,
or that in any other manner the defendant will be “denied
or cannot enforce in the courts” of the State any right
under a federal law providing for equal civil rights.
The civil rights removal statute does not require and
does not permit the judges of the federal courts to put
their brethren of the state judiciary on trial. Under
§ 1443(1), the vindication of the defendant’s federal
rights is left to the state courts except in the rare
situations where it can be clearly predicted by reason of
the operation of a pervasive and explicit state or
federal law that those rights will inevitably be denied
by the very act of bringing the defendant to trial in the
state court.

City of Greenwood, 384 U.S. at 827-28.

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B. Wilson’s complaint

The district court lacked subject matter jurisdiction to consider the
claims Wilson pleaded in his second amended complaint because of the
Rooker-Feldman doctrine. We recently summarized the Rooker-Feldman
doctrine:

The Rooker-Feldman doctrine states that district courts do not
have subject matter jurisdiction over challenges to state court
decisions in judicial proceedings. Rooker v. Fidelity Trust
Co., 263 U.S. 413, 416, 44 S. Ct. 149, 150, 68 L. Ed. 362
(1923); District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 476, 103 S. Ct. 1303, 1311, 75 L. Ed.2d 206 (1983).
The only court with jurisdiction to review decisions of state
courts is the United States Supreme Court. A federal district
court has jurisdiction over general constitutional challenges
if these claims are not inextricably intertwined with the
claims asserted in state court. A claim is inextricably
intertwined if the federal claim succeeds only to the extent
that the state court wrongly decided the issues before it. In
other words, Rooker-Feldman precludes a federal action if the
relief requested in the federal action would effectively
reverse the state court decision or void its ruling.

Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th Cir. 1995)
(citations omitted). See also Bechtold v. City of Rosemount, 104 F.3d
1062, 1065-66 (8th Cir. 1997).

Wilson’s complaint repetitively recites the facts of the case and
alleges that these facts show violations of the Fifth, Fourteenth, and
Fifteenth Amendments, the Voting Rights Act,4 42 U.S.C. §§ 1981, 1983,
1985, and 1986, and Arkansas state law. As relief, Wilson requested
removal of the Phillips County Circuit

4
Wilson’s Voting Rights Act claim is based on an alleged
violation of the consent decree in Hunt v. Arkansas, No. PB-C-89-
406 (E.D. Ark. Sept. 24, 1992).

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Court case and the Arkansas Supreme Court case to the federal court “for
a determination of the constitutional rights of [Wilson],” an injunction
preventing the defendants from further seeking Wilson’s disbarment, an
order dismissing the disbarment complaint filed against Wilson, and
recognition “that the Order of Judge Neal entered in this matter [is] a
legal judgment.”

Wilson’s complaint does not present a general challenge to the
constitutionality of the Arkansas procedural rules regarding attorney
disbarment. See Feldman, 460 U.S. at 486 (district courts may entertain
general challenges to state bar rules). In our view, the district court
could not review Wilson’s claims and grant relief without effectively
reviewing and reversing the decisions of the Arkansas Supreme Court in
Wilson I and Wilson II, particularly its conclusions that the disbarment
action was not barred by the statute of limitations and that Judge
Lineberger, rather than Judge Neal, had jurisdiction over Wilson’s
disbarment trial. Thus, the district court lacked jurisdiction under the
Rooker-Feldman doctrine to consider Wilson’s complaint because his federal
claims are inextricably intertwined with his state case.
Alternatively, to the extent that any portion of Wilson’s complaint
survived the jurisdictional bar of the Rooker-Feldman doctrine, the
district court correctly ruled that Younger abstention was warranted under
the standard of Middlesex County Ethics Comm. v. Garden State Bar Ass’n,
457 U.S. 423 (1982). The only Middlesex element in dispute is whether
there is “an adequate opportunity in the state proceedings [for Wilson] to
raise constitutional challenges.” Id. at 432. Wilson has not pointed to
any state obstacle preventing him from raising his federal claims in the
state proceedings. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987)
(burden on plaintiff to show that state procedural law barred presentation
of claims); Hirsh v. Justices of

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Supreme Court of California, 67 F.3d 708, 713 (9th Cir. 1995). The
Arkansas Supreme Court has in the past considered constitutional claims
presented during attorney disciplinary hearings. See Arens v. Committee
on Professional Conduct, 820 S.W.2d 263 (Ark. 1991); Sexton v. Arkansas
Supreme Court Comm. on Professional Conduct, 774 S.W.2d 114 (Ark. 1989);
Eaton v. Supreme Court of Arkansas, 607 S.W.2d 55 (Ark. 1980). Because
Wilson has the opportunity to raise his federal claims in the state
proceedings, Younger abstention is appropriate. See Middlesex, 457 U.S.
at 432; Hirsh, 67 F.3d at 713.
Wilson argues that the state authorities have acted in bad faith by
seeking the reversal of two circuit court decisions favorable to Wilson and
that the conduct of the state authorities and the Arkansas Supreme Court
shows that Wilson’s federal rights will not be honored in state court. See
Middlesex, 457 U.S. at 435 (bad faith, harassment, or extraordinary
circumstances justify exceptions to abstention). We remind Wilson that we
may not engage any presumption “that the state courts will not safeguard
federal constitutional rights.” Id. at 431; Hirsh, 67 F.3d at 713 (“one
who alleges bias ‘must overcome a presumption of honesty and integrity in
those serving as adjudicators’”)(quoted cases omitted). We agree with the
district court that Wilson has proferred no evidence of bad faith,
harassment, or other circumstance that might render abstention
inappropriate. The Arkansas Supreme Court reversed the two previous
circuit court rulings on state law grounds, and Wilson has the opportunity
in the current state proceedings to raise his federal claims. As we noted
above, the district court characterized Wilson’s contentions of bad faith
by the defendants as “little more than a belief by him that, since the
state actors disagree with him and his lawyers, they must have racially
discriminatory motives.” Cf. Peterson v. Sheran, 635 F.2d 1335, 1340 (8th
Cir. 1980) (disbarred lawyer argued Minnesota

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Supreme Court biased against him and he would not have “real opportunity”
to raise claim before that court; allegations not sufficient because he
alleged only general bias because of previous proceedings in case and
hypothetical reactions of state judges to his public criticism).5

C. Recusal
Wilson argues that Judge Waters should have recused himself for the
same reason given by Judge Howard. We disagree. Judge Howard recused
himself because the District Court for the Eastern District of Arkansas had
referred Wilson’s disciplinary matter to the Arkansas bar authorities.
Because Judge Waters was not involved in that decision, the rationale for
Judge Howard’s recusal does not apply to him. We presume that Judge Waters
is impartial, and Wilson has not met his “‘substantial burden of proving
otherwise.’” In re Kansas Pub. Employees Retirement Sys., 85 F.3d 1353,
1358 (8th Cir. 1996) (quoted case omitted).6 Accordingly, Judge Waters did
not abuse his discretion in refusing to recuse himself. See id. (citing
28 U.S.C. § 455(a)).

III. Conclusion

Resolution of this matter should take place in the courts of
Arkansas, not the federal courts. The judgment is affirmed.

5
We also agree with the district court that our case of
Lewellen v. Raff, 843 F.2d 1103 (8th Cir. 1988), is distinguishable
from the present case.
6
We also disapprove of Wilson’s decision to wait until after
Judge Waters had issued an unfavorable ruling before moving for
recusal.

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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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