United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1598
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Vance Gillette, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
North Dakota Disciplinary Board *
Counsel, Brent Edison, *
*
Defendant - Appellee. *
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Submitted: February 10, 2010
Filed: July 9, 2010
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Before LOKEN, Chief Judge,* GRUENDER and BENTON, Circuit Judges.
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LOKEN, Chief Judge.
Vance Gillette, a member of the Three Affiliated Tribes and a licensed North
Dakota and tribal attorney, commenced this official capacity action against Brent
Edison, Assistant Disciplinary Counsel of the Disciplinary Board of the Supreme
Court of North Dakota (the Board). Gillette seeks declaratory and injunctive relief
preventing the Board from prosecuting a disciplinary action for alleged misconduct
*
The Honorable James B. Loken stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2010. He has been succeeded by the Honorable William Jay Riley.
arising out of his representation of Native American clients in tribal court litigation.
The district court1 dismissed the suit, concluding that the federal court should abstain
from interfering in this ongoing state judicial proceeding under abstention principles
first announced in Younger v. Harris, 401 U.S. 37 (1971), and applied to state bar
disciplinary hearings in Middlesex County Ethics Committee v. Garden State Bar
Ass’n, 457 U.S. 423 (1982). Gillette appeals. Reviewing the district court’s
application of the Younger abstention doctrine for abuse of discretion, we affirm. See
Norwood v. Dickey, 409 F.3d 901, 903 (8th Cir. 2005) (standard of review).
Gillette represented five members of the Tribe in wrongful discharge actions
against the Tribe in the Fort Berthold reservation’s tribal court. The cases settled
when the Tribe agreed to pay each plaintiff $35,000. Gillette then sued his clients in
tribal court, seeking a 30% contingent fee. One client filed a written complaint with
the Board, alleging that Gillette had committed ethical violations by unilaterally
altering initial written agreements establishing a 10% contingent fee arrangement.
The complaint concluded: “This man does not deserve a lawyer license, and does not
deserve to represent anyone in court because of his tactics.”
Some months later, the tribal court entered judgment awarding Gillette a 10%
contingent fee on the total settlement amounts paid. Three months after that, Edison
filed a Petition for Discipline with the Board alleging that Gillette violated multiple
provisions of the North Dakota Rules of Professional Conduct by unilaterally
amending contingent fee agreements and attempting to collect never-agreed-upon fees.
Gillette refused to accept service of the Petition. Instead, he commenced this action
in federal court, seeking to enjoin the disciplinary proceedings on the ground that the
Three Affiliated Tribes Bar Board has exclusive authority to regulate attorney conduct
on the Tribe’s reservation.
1
The HONORABLE DANIEL L. HOVLAND, Chief Judge of the United States
District Court for the District of North Dakota.
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In Younger, noting its historic reluctance to enjoin pending proceedings in state
court, the Supreme Court held that federal courts may not enjoin pending state court
criminal proceedings absent a showing of “bad faith, harassment, or any other unusual
circumstance that would call for equitable relief.” 401 U.S. at 54. The Court
extended this principle to state court “civil proceedings in which important state
interests are involved,” such as protecting children from child abuse, public nuisance,
enforcement of contempt, and safeguarding public assistance programs. Moore v.
Sims, 442 U.S. 415, 423 (1979), and cases cited. Then, in Middlesex, the Court held
that a State’s “extremely important interest in maintaining and assuring the
professional conduct of the attorneys it licenses” is an interest that “calls Younger
abstention into play.” 457 U.S. at 434-35.
Gillette argues that North Dakota “lacks valid interests to regulate conduct in
tribal court.” But the Supreme Court of North Dakota is not purporting to regulate
Gillette’s conduct before the tribal court or on the reservation. Rather, the Board
concedes that any disciplinary action taken by the Supreme Court will not affect
Gillette’s right to practice in tribal court, which is regulated exclusively by the Tribe.
Cf. In re Hoare, 155 F.3d 937, 940 (8th Cir. 1998) (state court discipline not binding
on federal court). Thus, this regulation of Gillette’s right to practice in North Dakota
will not “infringe on the Tribe’s right to make and administer its own laws.”
Cournoyer v. Montana, 512 N.W.2d 479, 480 (S.D. 1994).
The Supreme Court of North Dakota has expressly declared that its interest in
assuring the professional conduct of the attorneys it licenses includes subjecting a
lawyer admitted to practice in North Dakota to disciplinary action “even though the
conduct of the lawyer giving rise to the discipline may have occurred outside of this
jurisdiction.” Rule 8.5(a) of the N.D. Rules of Prof. Conduct . The Court applied that
principle in disciplining a North Dakota lawyer not presently licensed who was
disciplined by the Texas Commission for Lawyer Discipline. In re Discip. Action
Against Hawkins, 623 N.W.2d 431, 435 (N.D. 2001). It again applied the principle
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in unilaterally disciplining a lawyer for misconduct in a federal immigration
proceeding, In re Discip. Action Against Vela, 699 N.W.2d 839, 840 (N.D. 2005), and
another lawyer for misconduct in litigation before a federal court in North Carolina,
In re Discip. Action Against Landon, 600 N.W.2d 856, 857 (N.D. 1999). These
authorities make clear that the “extremely important” state interest recognized in
Middlesex applies in this case as well. When an attorney’s fitness -- and thus the
public interest -- are at stake, the location of the misconduct may be irrelevant.
However, the Supreme Court in Middlesex also held that Younger abstention
is only proper if state disciplinary hearings “constitute an ongoing state judicial
proceeding,” and if there is “adequate opportunity in the state proceedings to raise
constitutional challenges.” Id. at 432. And the Court again noted that “bad faith,
harassment, or other extraordinary circumstance . . . constitute an exception to
Younger abstention.” Id. at 429.
Here, as in Middlesex, 457 U.S. at 433-434 & nn. 12 & 13, it is clear that
Gillette is seeking to enjoin an ongoing state judicial proceeding. The North Dakota
Constitution vests in the Supreme Court of North Dakota authority to “promulgate
rules and regulations for the admission to practice, conduct, disciplining and
disbarment of attorneys at law.” Art. VI § 3. Exercising this authority, the Court has
promulgated the North Dakota Rules for Lawyer Discipline. Rule 3.5 declares that
“disciplinary proceedings are neither civil nor criminal but are quasi-judicial
proceedings.” Rule 3.1(E) provides that the Petition filed and served by Disciplinary
Counsel Edison in this case initiated “a formal disciplinary proceeding” which is then
assigned to a hearing panel of the Board. Rule 3.3 provides for reciprocal discovery
and the subpoenaing of witnesses. Rule 3.5(B) provides that the North Dakota Rules
of Civil Procedure and North Dakota Rules of Evidence generally apply in
disciplinary proceedings. Finally, Rule 3.1(F) provides that counsel for the Board, the
complainant, or the attorney sought to be disciplined may petition the Supreme Court
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for review of the hearing panel’s decision, where briefing and oral argument “will be
as provided in the North Dakota Rules of Appellate Procedure.”
The Supreme Court of North Dakota has declared that the Board is “an arm of
this court” and that the Court has an obligation to ensure that disciplinary proceedings
“are conducted fairly and consistently with their purpose.” Lashkowitz v.
Disciplinary Bd., 410 N.W.2d 502, 504 (N.D. 1987). Given this decision and the
governing Rules, we have no doubt that this case involves an ongoing state judicial
proceeding for purposes of Younger abstention.2 This is consistent with Supreme
Court decisions recognizing that state disbarment proceedings are “adversary
proceedings of a quasi-criminal nature” and are therefore subject to constitutional
procedural due process protections. In re Ruffalo, 390 U.S. 544, 551 (1968).
Gillette concedes that the Supreme Court of North Dakota’s disciplinary
proceeding “affords an adequate opportunity to raise the federal questions presented.”
Norwood, 409 F.3d at 903. Accordingly, the three prerequisites to Younger
abstention are present in this case -- (1) an ongoing state judicial proceeding that (2)
implicates an important state interest and (3) affords an adequate opportunity to raise
federal statutory and constitutional challenges.
Gillette nonetheless argues that Younger abstention does not apply because,
absent an authorizing federal statute, North Dakota’s assertion of disciplinary
jurisdiction is regulation of conduct in Indian country that infringes “on the right of
reservation Indians to make their own laws and be ruled by them.” Williams v. Lee,
358 U.S. 217, 220 (1959), followed in Fisher v. District Court, 424 U.S. 382, 386
(1976). But in these cases, the Supreme Court directly reviewed by writ of certiorari
exercises of jurisdiction by state supreme courts, not abstention decisions by lower
2
Gillette’s assertion that the disciplinary proceedings were not ongoing when
he commenced this action because he refused service of the Petition borders on the
frivolous. Compare Middlesex, 457 U.S. at 428-29.
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federal courts. If the three prerequisites to Younger abstention are present, a lower
federal court may not consider the state court’s jurisdiction in the ongoing judicial
proceeding, absent extraordinary circumstance. Having decided that the three
prerequisites to Younger abstention are present, the only pertinent question raised by
this argument is whether the issue of competing tribal sovereignty constitutes an
“exceptional circumstance” warranting an equitable exception to Younger abstention.
See Middlesex, 457 U.S. at 429, 437. Gillette does not raise this issue on appeal. He
argues only that the Supreme Court of North Dakota has no jurisdiction and may not
infringe on the Tribe’s authority. But he concedes that these questions may be raised
in the Supreme Court of North Dakota proceeding, and cases such as Williams and
Fisher demonstrate that the Supreme Court of the United States will exercise its
certiorari jurisdiction to protect tribal court authority from improper state court
encroachment. In these circumstances, the district court properly abstained.
Finally, Gillette argues that Edison and the Board acted in bad faith and violated
his right to equal protection of the laws by commencing this disciplinary proceeding
without consulting the Tribe, whereas the Board’s normal practice is to wait until
reciprocal discipline has been imposed by the jurisdiction in which the alleged
misconduct occurred, as in Hawkins. The short answer to the equal protection claim
is that it can be raised in the ongoing state court proceeding. The short answer to the
suggestion of bad faith is that none has been shown and, in applying Younger
abstention, we will not presume bad faith or harassment by the Supreme Court of
North Dakota adjudicators. See Neal v. Wilson, 112 F.3d 351, 357 (8th Cir. 1997).
The judgment of the district court is affirmed.
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