Musslewhite v. State Bar of Texas

United States Court of Appeals,

Fifth Circuit.

No. 92-2762.

Benton MUSSLEWHITE, and all others similarly situated, Plaintiff-
Appellant,

v.

The STATE BAR OF TEXAS, et al., Defendants-Appellees.

Sept. 23, 1994.

Appeal from the United States District Court for the Southern
District of Texas.

Before WISDOM, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

WISDOM, Circuit Judge.

The Court withdraws the opinion issued in this case dated July

19, 1994, and appearing at 25 F.3d 1300, and substitutes the

following.

This case presents a question of subject matter jurisdiction.

The district court held that it was without jurisdiction to proceed

on the appellant's claims. We uphold that determination and,

accordingly, we affirm.

I.

We limit our discussion of the facts to those bearing on the

issue of jurisdiction. The plaintiff/appellant, Benton

Musslewhite, is a Houston attorney who made a name for himself

representing plaintiffs in complex personal injury cases, usually

involving mass disasters. In 1987, he attracted the attention of

the State Bar of Texas ("State Bar") as the result of his public

statements soliciting clients. Typically, it seems, Musslewhite

1
held "press conferences" during which he would announce his plan of

action in response to a particular tort and detail his

qualifications. Not incidentally, he rarely failed to include

information on how potential clients could reach him if interested

in his services.

The State Bar expressed concern—Musslewhite charges that this

concern was feigned—that these press conferences constituted the

improper solicitation of clients. The State Bar launched an

investigation that focussed in large part on whether Musslewhite

was violating the mandates of professional responsibility.1

Musslewhite perceived the investigation as a direct assault on his

First Amendment right to free speech.

Eventually, the State Bar filed formal charges against

Musslewhite. The two parties reached a settlement, however, and a

trial was unnecessary. Under the terms of the settlement,

Musslewhite was suspended from the practice of law for ninety days

beginning November 1, 1988, and placed on probation for three years

after that. Moreover, he was barred from accepting new employment

until November 1, 1988 (the date his suspension was to begin). As

to this final limitation, however, Musslewhite still was entitled

to refer potential clients to other attorneys. The penalty for

violation of any of these terms was an automatic three year

suspension.

The issue presented in this case stems from an alleged breach

1
Musslewhite charges that the investigation was designed
only to harass plaintiffs's attorneys and solo practitioners.

2
of these settlement provisions. On the heels of an oil platform

explosion in Scotland, Musslewhite went to work, plotting his

strategy for cashing in on the disaster.2 He held his typical

press conferences and issued his self-laudatory press releases.

The State Bar concluded that his tactics violated the terms of

the settlement agreement and sued to revoke his probation.3

Pursuant to the settlement terms, Musslewhite was suspended from

the practice of law for three years beginning January 31, 1989.

That judgment was affirmed on appeal.4 Neither the Texas Supreme

Court nor the U.S. Supreme Court found persuasive reasons to

reexamine the matter.

Having reached a dead end, Musslewhite filed the present

suit—an action under 42 U.S.C. § 1983—in federal court against the

State Bar, its Executive Director, its General Counsel, its former

General Counsel, an attorney employed by the State Bar, and the

2
On July 6, 1988, the Piper Alpha oil platform in the North
Sea exploded. Musslewhite flew to Scotland shortly thereafter to
discuss a possible lawsuit over the incident in the state courts
of Texas. He was in touch with John O'Quinn, another attorney
whom the State Bar had investigated, about referring any cases he
obtained in Scotland to O'Quinn.
3
The State Bar considered Musslewhite's press release
misleading. For one, the press release failed to disclose
Musslewhite's legal handicap which prohibited him from accepting
new clients. The State Bar also objected to a letter written by
Musslewhite associate Kelly Newman addressed to "all victims or
families of victims". The letter extolled the virtues of
Musslewhite's group which boasted "internationally renowned trial
lawyers in the United States". We underscore that, in this case,
we are not testing the validity of these justifications for the
State Bar's actions.
4
Musslewhite v. State Bar of Tex., 786 S.W.2d 437
(Tex.App.—Houston [14th Dist.] 1990, writ denied), cert. denied,
501 U.S. 1251, 111 S.Ct. 2891, 115 L.Ed.2d 1056 (1991).

3
members of the State Bar's Board of Directors.5 In his complaint,

he alleged first, that several of the procedures used in his

disciplinary proceeding were unconstitutional and, second, that

some of the State Bar's rules themselves are unconstitutional. He

sought declaratory and injunctive relief, and compensatory and

punitive damages. He feels strongly that he is a victim of the

State Bar's desire to persecute him, allegedly in retaliation for

his willingness to use the right of free speech to enhance his

professional stature.

II.

The district court dismissed Musslewhite's suit for lack of

subject matter jurisdiction under Rule 12(b)(1) of the Federal

Rules of Civil Procedure. We address whether the district court

erred in so doing. After a de novo review,6 we uphold the district

court's dismissal of the appellant's challenges to a series of

Texas State Bar practices as applied to him as well as his

5
In his original complaint, Musslewhite named Karen R.
Johnson, Executive Director of the State Bar (sued in her
official capacity); James M. McCormack, general Counsel of the
State Bar (official capacity); Steven Peterson, then general
counsel to the State Bar (individual and official capacities);
Steven Smoot, then an attorney employed by the State Bar
(individual and official capacities); and the Board of Directors
(all sued in their official capacities): Charles R. Dunn,
Harriet Rivers, James N. Parsons, Tom Cunningham, Richard C.
Hile, Antonio Alvarado, Charles A. Beckham, Martha S. Dickie, M.
Colleen McHugh, Steven L. Martin, Charles O'Reilly, Spencer C.
Relyea, Jerry Secrest, and Kirk Watson.

We refer to the defendants collectively as the "State
Bar". We note, however, that the State Bar of Texas is a
distinct entity that Musslewhite named as a defendant in his
prayer for a declaratory judgment.
6
In re Bradley, 989 F.2d 802, 804 (5th Cir.1993).

4
challenges to the constitutionality of the proceedings.

III.

We start with two decisions that inform our analysis: the

U.S. Supreme Court's decision in District of Columbia Court of

Appeals v. Feldman7 and this Court's decision in Howell v. State

Bar of Texas8. Because they control most of the issues, we discuss

them in some detail.

The Feldman case involved an apparently qualified applicant to

the District of Columbia bar who, in spite of his qualifications,

had not graduated from an accredited law school. The bar refused

him admission, citing the rule requiring a completed legal

education from an accredited law school. Feldman responded with a

petition to the D.C. Court of Appeals for a waiver of the

graduation requirement. That petition was denied.

Feldman sought relief in federal district court. The court

never reached the merits of Feldman's contentions, however, because

it held that the federal courts were without the predicate subject

matter jurisdiction. The court reasoned that the D.C. Court of

Appeals's refusal to grant Feldman a waiver was a decision by a

body tantamount to a state's highest tribunal. The federal courts

may not properly sit in review of such decisions.

Feldman appealed. The Court of Appeals for the D.C. Circuit

disagreed with the district court and, instead, concluded that the

7
460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
8
710 F.2d 1075 (5th Cir.1983), cert. denied 466 U.S. 950,
104 S.Ct. 2152, 80 L.Ed.2d 538 (1984) ("Howell II ").

5
bar criteria proceedings in the D.C. Court of Appeals were

administrative and not judicial. This distinction, as we explain

below, allowed the federal district court to proceed. Accordingly,

the court reversed and remanded the case. Before it went back to

the district court, the U.S. Supreme Court granted certiorari.

The Supreme Court held that the district court had it right

the first time. First, the Court settled the nature of the bar

disciplinary proceedings as judicial, not merely administrative.

The Court reasoned that the purpose of the proceedings was to

"investigate, declare, and enforce liabilities as they [stood] on

present or past facts and under laws supposed already to exist".9

That, the Court concluded, is a judicial charge.

The Court then turned its attention to the question of the

district court's jurisdiction to entertain Feldman's challenges.

The Court drew a significant distinction between Feldman's

broad-based challenges to the constitutionality of the bar's rules

and his challenges to the constitutionality of his individual

disciplinary proceedings. This distinction reflects the rule

embodied in 28 U.S.C. § 1257: Only the Supreme Court of the United

States may review final judgments or decrees rendered by the

highest court in a state.

The Feldman rule, then, is as follows. The federal courts do

have subject matter jurisdiction over

general challenges to state bar rules, promulgated by state
courts in non-judicial proceedings, which do not require

9
Feldman, 460 U.S. at 479, 103 S.Ct. at 1313 (internal
quotations omitted).

6
 review of a final state-court judgment in a particular case.10

These we refer to as "general constitutional attacks". The federal

courts do not have subject matter jurisdiction over

challenges to state-court decisions in particular cases
arising out of judicial proceedings even if those challenges
allege that the state court's action was unconstitutional.11

We applied the Feldman rule in the Fifth Circuit for the first

time in Howell v. State Bar of Texas. In that case, Howell, a

Texas attorney, had filed suit in federal district court to enjoin

his disbarment.12 The district court had held that it lacked

jurisdiction. We reversed in Howell I on grounds irrelevant to

this matter and remanded. In the interim, the Supreme Court

decided Feldman and, subsequently, vacated our decision in Howell

I and remanded the case back to us. We then applied the Feldman

rule for the first time. Although we held that dismissal was

proper as to the bulk of Howell's claims, we reversed as to

Howell's due process, equal protection, and privileges and

10
Id. at 486, 103 S.Ct. at 1317 (emphasis added).
11
Id. Feldman was based upon Rooker v. Fidelity Trust Co.,
263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), in which the
Supreme Court held that federal district courts lack jurisdiction
to entertain collateral attacks on state court judgments.
Although the doctrine that embodies that principle is commonly
called the "Rooker-Feldman doctrine," we cite to Feldman alone
because the instant case is directly within Feldman 's factual
and legal ambit.
12
In a factual distinction to the case we decide today,
Howell sought the injunction first while the State proceedings
were pending and again before his state court appeal had been
heard. Eventually, the Texas courts finalized their judgment
against Howell. At that point, he sought to enjoin the
enforcement of his disbarment. Howell v. State Bar of Texas, 674
F.2d 1027 (5th Cir.1982) (before remand) ("Howell I ").

7
immunities claims.13

We also fleshed out some of the rules announced in Feldman.

For one, the Feldman distinction meant that a general

constitutional attack that is nonetheless "inextricably

intertwined" with a state court judgment of reprimand cannot be

properly heard in federal court.14 Second, we noted that federal

jurisdiction does not lie for claims that were not presented first

to the state court in the disciplinary proceeding.15

Our task, then, is focussed: Are any of Musslewhite's claims

properly construed as general constitutional attacks on the Texas

States Bar disciplinary scheme. The district court concluded that

all of Musslewhite's claims were challenges to the

constitutionality of the State Bar's practices as applied to him in

his disciplinary proceedings. We agree with the sound reasoning of

the district court and its classification of all of Musslewhite's

claims.

IV.

We turn to the specific claims that Musslewhite raises. He

complains that:

(1) The state judge erred in denying Musslewhite's motion for

13
Howell II, 710 F.2d at 1076.
14
Id. at 1077.
15
Id. at 1076; Thomas v. Kadish, 748 F.2d 276, 277-78 (5th
Cir.1984), cert. denied, 473 U.S. 907, 105 S.Ct. 3531, 87 L.Ed.2d
655 (1985). Feldman overruled the "Dasher exception" previously
embodied in Dasher v. Supreme Court of Texas, 658 F.2d 1045 (5th
Cir.1981). After Feldman, the federal courts are without
jurisdiction over a plaintiff's claims that could have been
raised, but were not.

8
 a change of venue;

(2) The state trial denied Musslewhite's right to trial by
jury;

(3) The Texas Court of Appeals, Texas Supreme Court, and U.S.
Supreme Court all erred in refusing to expedite
Musslewhite's appeal of the disciplinary proceeding;

(4) The State Bar's rule governing the making of false and
misleading statements is unconstitutional as applied in
Musslewhite's case;

(5) "[S]everal constitutional travesties ... occurred in the
state court action";

(6) The suspension imposed in the state trial constituted a
violation of Musslewhite's First Amendment rights;

(7) The punishment imposed in the state trial was excessive;

(8) Musslewhite's state trial was tainted by prejudicial
publicity;

(9) Musslewhite received inadequate notice of the state trial;

(10) The court refused to suspend Musslewhite's judgment upon
his filing a supersedeas bond while appealing.

We will not belabor our conclusions with a claim-by-claim

analysis. All of these contentions have in common their grounding

in some aspect of the disciplinary proceedings against Musslewhite.

It is plain by the way they are stated that they attack aspects of

his particular trial. We have stated that "the Texas scheme for

disciplining attorneys is fully capable of considering the

constitutional arguments of attorney-defendants relating to

specific procedures followed in their cases."16 To evaluate them

would require review of the state court judgment. That, as Feldman

instructed, we are without the jurisdiction to do.

16
Bishop v. State Bar of Texas, 736 F.2d 292, 294 (5th
Cir.1984).

9
 V.

Musslewhite couched some of his averments in the language of

a general constitutional attack on the State Bar's scheme of

disciplining attorneys. Merely using catch phrases, however, will

not vest the federal district court with the jurisdictional

authority to entertain the action. This is about substance, not

form. Instead, we must ascertain what the court really is being

asked to review.

First Musslewhite complains that the State Bar violated the

constitutional guarantee of equal protection by selectively

investigating himself and others similarly situated. We have no

trouble classifying this contention as but another attack on the

State Bar's procedures as applied to Musslewhite. All of the

evidence to which Musslewhite alludes goes solely to his

disciplinary proceeding. That is, the procedures, he charges, were

used in this case to deprive him of his equal protection rights.

This conclusion applies as well to his charge that the State Bar

prosecutes solo practitioners for conduct that it tolerates by

large firms. The state court was capable of resolving that claim;

it too is inextricably intertwined with the state case.

Musslewhite also argues that the State Bar rule governing the

making of false and misleading statements is, on its face,

unconstitutionally vague and violates the First Amendment. The

Texas Court of Appeals flatly rejected this contention that the

rule was unconstitutionally vague either on its face or as applied

10
in Musslewhite's case.17 The district court's judgment that it was

incapable of revisiting that sound judicial decision was correct.

Last, Musslewhite contends that the State Bar's entire

prosecution was taken in bad faith and for the purpose of harassing

him. Although he makes strong and serious allegations, our

consideration of these contentions would require a collateral

examination of the state court judgment. That we cannot do.

Musslewhite urges that we recognize an exception to the

Feldman doctrine for an allegation that the prosecution was taken

in bad faith. In Younger v. Harris18, the Supreme Court established

a policy whereby federal intervention in ongoing state criminal

proceedings is barred absent extraordinary circumstances.

Subsequent decisions teach us that a state prosecution taken in bad

faith or for the purposes of harassment constitutes such

extraordinary circumstances and federal intervention is justified.19

This bad faith exception to the Younger doctrine has two recognized

applications in our Circuit: First, where the state prosecution is

taken for the purpose of deterring constitutionally protected

conduct20 and, second, where the prosecution is motivated by a

17
Musslewhite, 786 S.W.2d at 441-42.
18
401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
19
See Trainor v. Hernandez, 431 U.S. 434, 446, 97 S.Ct.
1911, 1919, 52 L.Ed.2d 486 (1977); Huffman v. Pursue, Ltd., 420
U.S. 592, 611-12, 95 S.Ct. 1200, 1211-12, 43 L.Ed.2d 482 (1975).
20
See Smith v. Hightower, 693 F.2d 359 (5th Cir.1982).

11
design to harass the defendant.21

The Younger doctrine, however, does not apply to the present

matter. The state proceeding here in question is not ongoing and,

thus, no question of intervention is presented. The Younger

doctrine is rooted in different policy considerations than the

Feldman doctrine, and we do not recognize an exception for

allegations of bad faith to the latter. Instead, as we recently

stated when faced with similar circumstances, "We do as we must."22

We dismiss.

AFFIRMED.

21
See Shaw v. Garrison, 467 F.2d 113, 119-21 (5th Cir.),
cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972),
aff'g, 328 F.Supp. 390, 393-400 (1971). In Shaw, we detailed
then District Attorney Jim Garrison's harassing prosecution of
Clay Shaw and the bad faith tactics Garrison employed in his
zealous investigation of the assassination of President John F.
Kennedy. Shaw represents perhaps the paradigm in this Circuit of
impermissible prosecutorial motives. Garrison used his
prosecution of Shaw as a means of procuring public
support—financial and otherwise—of his larger investigation into
the assassination of the President. See Shaw v. Garrison, 328
F.Supp. at 393-400.
22
Liedtke v. State Bar of Texas, 18 F.3d 315, 318 (5th
Cir.), pet. for cert. filed (Aug. 1, 1994).

12