Richard L. Abbott v. Kathaleen M. Vavala ( 2022 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
RICHARD L. ABBOTT, :
: C.A. No. 2021-0409 JJC
Plaintiff, :
:
:
v. :
:
:
KATHLEEN M. VAVALA, DAVID A. :
WHITE, COLLINS J. SEITZ, JR., :
JAMES T. VAUGHN, JR., TAMIKA R. :
MONTGOMERY-REEVES, GARY F. :
TRAYNOR, AND KAREN L. :
VALIHURA, :
:
Defendants. :
Submitted: December 3, 2021
Decided: February 15, 2022
OPINION & ORDER
Richard L. Abbott, Esquire, Abbott Law Firm, Hockessin, Delaware, Attorney for
the Plaintiff.
Ryan T. Costa, Esquire, Department of Justice, Wilmington, Delaware, Attorney
for the Defendants.
Clark, Resident Judge1
1
Specially designated as a Vice-Chancellor pursuant to Article IV § 13(2) of the Delaware
Constitution to decide this single matter.
Plaintiff Richard Abbott sues to enjoin seven individuals from performing
their official duties in Delaware’s attorney disciplinary process. As defendants, he
names the five members of the Delaware Supreme Court and two attorneys from
Delaware’s Office of Disciplinary Counsel (“ODC”). In addition to requesting an
injunction, he seeks a declaration that the process is unlawful and unconstitutional
as applied to him. Finally, he requests that the Court place Delaware’s attorney
disciplinary system into receivership.
The Defendants move to dismiss Mr. Abbott’s complaint pursuant to Court of
Chancery Rules 12(b)(1) and (6). First, they contend that the Court of Chancery
does not have jurisdiction to issue an order that prohibits all five members of the
State’s highest court and ODC’s attorneys from prosecuting and deciding Mr.
Abbott’s disciplinary case. In addition, the Defendants seek to dismiss his claims
based upon judicial, quasi-judicial, and prosecutorial immunity. Finally, the
Defendants move to dismiss all counts in the complaint for failure to state claims.
For the reasons discussed below, the Court dismisses Mr. Abbott’s suit
pursuant to Rule 12(b)(1). No trial court in Delaware has jurisdiction over attorney
discipline or governance matters. Based upon that premise, it follows that the Court
has no jurisdiction to grant injunctive or declaratory relief against the individuals
who are part and parcel of a higher Court that holds exclusive jurisdiction over the
matter. As a result, the Court need not separately address the Defendants’ immunity
defenses or the Rule 12(b)(6) component of their motion.
I. PROCEDURAL BACKGROUND
Mr. Abbott claims that the disciplinary action filed against him is unlawful,
conspiratorial, and discriminatory. Pursuant to the parties’ last report to the Court,
2
he awaits a Board of Professional Responsibility (“BPR”) panel decision that will
address his alleged misconduct.2
Before Mr. Abbott filed this suit, he attempted to halt or otherwise alter the
course of his disciplinary proceedings in several other venues. First, after a judicial
officer in the Court of Chancery registered the complaint at issue against him, he
countered with a filing against that officer in the Court on the Judiciary.3 That Court
found Mr. Abbott’s complaint against the judicial officer to be without merit and
dismissed it.4
Second, Mr. Abbott filed a Delaware State Public Integrity Commission
(“PIC”) complaint against ODC’s former Chief Counsel.5 He alleged that she had a
conflict in prosecuting his disciplinary complaint because she harbored an ambition
to become a judge.6 He claimed that this conflict of interest, in turn, created a
public perception of impropriety.7 After considering his arguments, PIC found that
it lacked jurisdiction to address her alleged misconduct because it involved her law-
related functions as a state-employed attorney.8 As a result, it dismissed his action
against her.9
2
Although attorney disciplinary matters are confidential proceedings pursuant to Delaware
Lawyers’ R. of Disciplinary Proc. 13(g), Mr. Abbott has publicly disclosed the nature of the
allegations against him and that a BPR panel hearing is pending. He has done so in his verified
complaints and briefing in both this Court and the United States District Court for the District of
Delaware.
3
Abbott v. Del. State Public Integrity Comm’n, 206 A.3d 260, 2019 WL 937184, at *2 (Del. Feb.
25, 2019) (TABLE).
4
Id.5
Abbott v. Del. State Public Integrity Comm’n, 2018 WL 1110852, at *1 (Del. Super. Ct. Feb. 28,
2018).
6
Id.7
Id.8
Id. at *2.
9
Id.
3
Mr. Abbott then requested that the Superior Court review PIC’s decision by
writ of certiorari.10 When considering his request for the writ, the Superior Court
confirmed that PIC lacked subject matter jurisdiction over his petition.11 The
Supreme Court then affirmed the Superior Court’s decision.12 When doing so, it
reiterated its long-standing recognition that ODC is “an arm of the Supreme Court”
and counsel for the ODC are employees of the Supreme Court.13 Moreover, the
Delaware Supreme Court explained that if a lower court were to attempt to command
ODC or its counsel to take action regarding a disciplinary complaint, it “would
infringe on the Supreme Court’s exclusive authority over the discipline of Delaware
lawyers.”14
Mr. Abbott next filed suit in the United States District Court for the District
of Delaware.15 There, the District Court analyzed claims that are nearly identical to
what Mr. Abbott brings in this case. It dismissed his complaint based upon the
Younger abstention doctrine.16 When Mr. Abbott moved, in the alternative, to
amend his complaint, the District Court judge denied the amendment, as futile,
10
Id.
11
Id. at *4
12
State ex rel. Abbott v. Aaronson, 206 A.3d 260, 2019 WL 925856, at *2 (Del. Feb. 25, 2019)
(TABLE).
13
Id. at *1.
14
Id. at *2.
15
Abbott v. Mette et al., 2021 WL 327375 (D. Del. Jan. 31, 2021).
16
Id. Abbott v. Mette et al., 2021 WL 1168958 (D. Del. Mar. 26, 2021). Under the Younger
abstention doctrine, a federal court is required to abstain from exercising jurisdiction where: (1)
there is an ongoing state proceeding, (2) which implicates important state interests, and (3) there
is an adequate opportunity to raise any relevant federal questions in the state proceeding. Morgan
v. Scott, 83 F.Supp.3d 616 (D. Del. 2015). The doctrine applies to state-court proceedings until
all appellate remedies have been exhausted unless it falls within an exception. Exceptions to the
Younger abstention doctrine include: (1) where irreparable injury is both “great and immediate”
(2) where the state law is “flagrantly and patently violative of express constitutional prohibitions”
or (3) where there is a showing of “bad faith, harassment, or other unusual circumstances that
would call for equitable relief.” Id. at 623, n. 6. The District Court found that none of those
exceptions applied. Id.
4
because Mr. Abbott could not identify facts that would permit his claims to survive
judicial or quasi-judicial immunity or, separately, a Rule 12(b)(6) motion.17 Mr.
Abbott then appealed that decision to the United States Court of Appeals for the
Third Circuit.18
After the District Court dismissed his federal suit, with the Third Circuit
appeal pending, Mr. Abbott filed the present suit in the Delaware Court of Chancery.
In this action, he alleges, as he did in federal court, that two ODC attorneys and the
five members of the Delaware Supreme Court unfairly target small practitioners
such as him. Based upon this alleged impropriety, he contends that the Defendants
have collectively violated and continue to violate his United States Constitutional
rights to due process and equal protection. He contends that these allegedly
infringed-upon rights are actionable pursuant to (1) the federal RICO statute, 18
U.S.C. Ch. 96; (2) 42 U.S.C. § 1983 (hereinafter “Section 1983”); (3) and
Delaware’s RICO statute, 11 Del. C. Ch. 15. As to his state and federal RICO
claims, he alleges that the Defendants are members of a collective enterprise formed
to unlawfully target him and those like him.
In his present suit, Mr. Abbott requested that the Court grant a temporary
restraining order and a proposed order to expedite the proceedings. For the reasons
explained on the record after the hearing, the Court denied his request for a TRO and
to expedite the proceedings.19 Mr. Abbott then sought interlocutory review and
this Court declined to certify it.20 The Supreme Court refused to accept it.21 At
present, he seeks a permanent injunction, a declaratory judgment, and to place the
entire disciplinary system into receivership.
17
Abbott, 2021 WL 1168958, at *4.
18
Abbott v. Mette et al., 2021 WL 5906146 (3rd Cir. Dec. 14, 2021).
19
Tr. 53:17-59:9, June 3, 2021 (D.I. 21).
20
Abbott v. Vavala et al., 2021 WL 2690737, at *5 (Del. Ch. June 30, 2021).
21
Abbott v. Vavala et al., 255 A.3d 965, 2021 WL 2935349, at *1 (Del. July 12, 2021) (TABLE).
5
The Defendants now move to dismiss his complaint pursuant to Court of
Chancery Rule 12(b)(1) and 12(b)(6). The parties briefed the matter and the Court
held oral argument on November 22, 2021. The Court then invited the parties to
provide authority, mandatory or persuasive, that addresses a trial court’s power to
control the official functions of those who sit on a higher court. The parties provided
supplemental case law on the issue on December 3, 2021.
Most recently, on December 14, 2021, the United States Court of Appeals
for the Third Circuit issued its decision in his federal case. There, the Third Circuit
affirmed the District Court’s dismissal of his claims.22 The Third Circuit did so
based upon the principles outlined in Younger v. Harris.23 As part of its analysis,
the Third Circuit explained that Delaware’s disciplinary system was judicial in
nature and that the process provides Mr. Abbott an adequate and appropriate forum
to fully resolve his claims.24
II. FACTUAL BACKGROUND
The following facts are those presented in Mr. Abbott’s verified complaint,
which are assumed to be true. They also include those of which the Court takes
judicial notice for purposes of evaluating subject matter jurisdiction. As to the latter,
the Court recognizes the structure, nature, and functions of Delaware’s attorney
disciplinary system
22
Mette, 2021 WL 5906146, at *4.
23
Id. at *2.
24
Id. at *4. When recognizing the judicial nature of the process and the process’s ability to address
all of Mr. Abbott’s claims, the Third Circuit recognized that “the Delaware Supreme Court
possesses ultimate authority over each stage of the proceedings from complaint to final resolution,
which either the Court or an arm of the Court carries out.” Id. at *2. It also recognized that “from
the very beginning, a disciplinary proceeding is judicial in nature.” Id.
6
Mr. Abbott has been a member of the Bar of the Supreme Court of Delaware
since December 1989.25 The defendants include all five members of the Delaware
Supreme Court. They also include the Chief and Deputy Chief Disciplinary Counsel
of ODC.26
The Delaware Supreme Court is the highest court in the State of Delaware.27
The Court of Chancery is a court of limited jurisdiction that hears matters in equity.28
ODC is considered “an arm” of the Delaware Supreme Court.29 Furthermore, the
Preliminary Review Committee (“PRC”), and the Board on Professional
Responsibility (“BPR”) are also separate arms of the Court.30
The attorney disciplinary process provides multiple levels of procedural
protection for an attorney-respondent who is accused of misconduct. First, ODC is
the agency charged with screening, evaluating, and investigating misconduct by
Delaware attorneys that may be grounds for professional discipline.31 After the ODC
evaluates a matter, it may then present charges to the PRC by submitting a proposed
petition for discipline.32 Upon presentation of the petition, the respondent-attorney
has the opportunity to submit written information to the PRC in response to the
allegations.33 If the PRC, upon review of the ODC complaint and the respondent’s
25
Ver. Compl. ⁋ 1.
26
Id. ⁋⁋ 2-8.
27
Del. Const. art. IV, § 11.
28
Id. art. IV, § 10; Candlewood Timber Group, LLC v. Pan American Energy, 859 A.2d 989, 997
(Del. 2004); see also 10 Del. C. § 342 (providing that “[t]he Court of Chancery shall not have
jurisdiction to determine any matter wherein sufficient remedy may be had by common law, or
statute, before any other court or jurisdiction of this State”).
29
Abbott, 2018 WL 1110852, at *5 (citing Del. Supr. Ct. R. 64).
30
See Del. Supr. Ct. R. 62 (creating the Preliminary Review Committee and the Board on
Professional Responsibility to serve at the pleasure of the Supreme Court); Del. Lawyer’s R.
Disciplinary Proc. 1(b) (providing that “the Court shall appoint the members of the Board (which
includes all members of the Unauthorized Practice of Law Subcommittee of the Board), the PRC,
and the ODC, who shall function with such powers and duties as set forth by the Court”).
31
Del. Supr. Ct. R. 64(e)(1)-(2); Del. Lawyer’s R. Disciplinary Proc. 9(a).
32
Del. Supr. Ct. R. 64(e)(3); Del. Lawyer’s R. Disciplinary Proc. 9(b).
33
Del. Lawyer’s R. Disciplinary Proc. 9(b)(1).
7
submissions, finds probable cause to believe that the respondent has committed
misconduct, it then refers the matter for formal disciplinary proceedings.34 In that
way, the PRC screens cases for prima facie merit as would a grand jury in the
criminal process.35 If the PRC finds probable cause to believe the respondent-
attorney has violated the Rules of Professional Conduct and approves a petition for
discipline, the ODC then files the petition with the BPR.36
When the matter comes before a BPR panel, the respondent-attorney first has
the opportunity to file an answer.37 The BPR chair will then schedule pre-hearing
conferences as necessary to address “administrative, evidentiary, or procedural
issues.”38 BPR hearings are on the record, witnesses are under oath and subject to
cross-examination, and briefing and oral arguments are also permitted.39 In a
proceeding before the BPR, the ODC bears the burden of proving the respondent’s
misconduct by clear and convincing evidence.40 After a liability hearing, if the BPR
makes a finding as to an attorney’s misconduct, it will then hold a separate hearing
to determine what sanctions it will recommend to the Supreme Court.41
The BPR’s final report includes its findings, reasons, and recommendations.42
The Supreme Court, upon review of the report, serves as the final and ultimate
34
Id. 9(b)(3).
35
A significant difference between grand jury practice and that of the PRC, however, is that ODC
provides notice of an upcoming PRC review to the respondent-attorney so he or she may present
written information to the PRC to contest the charges.
36
Del. Lawyer’s R. Disciplinary Proc. 9(b)(4)(B).
37
Id. 9(d)(2).
38
Id. 15(e).
39
Id. 9(d)(3)-(4).
40
Id. 15(d).
41
Id. 9(d)(4).
42
Id. 9(d)(5).
8
decision maker in the process. 43 Before the process concludes, the respondent also
may file objections in the Supreme Court regarding the BPR’s recommendations.44
In Mr. Abbott’s complaint, he alleges that ODC has been harassing and
attacking him in bad faith for six years.45 The impetus of the complaint against Mr.
Abbot stemmed from a Delaware judicial officer’s report to ODC that Mr. Abbott
engaged in unethical litigation tactics.46 Those allegations included his alleged
advice to a client regarding how to circumvent a court judgment.47
As he further alleges in his complaint, Mr. Abbott contends that ODC’s
allegations against him are false.48 For an alleged impetus to fabricate these charges,
he submits that the attorneys that comprise ODC and the full membership of
Delaware’s Supreme Court are part of a conspiracy to target sole practitioners such
as he. They target him and these individuals, he alleges, in furtherance of their
operation as a “protection racket” for lawyers of big firms and government.49 He
further alleges, in support of his state and federal racketeering claims, that the
Defendants have committed and continue to commit mail fraud. Finally, he alleges
that the BPR has denied him adequate discovery and other procedural protections
throughout the process.
III. ARGUMENTS OF THE PARTIES
The Defendants raise a facial attack to the Court of Chancery’s subject matter
jurisdiction pursuant to Rule 12(b)(1). Namely, they contend that the Delaware
Supreme Court has inherent and exclusive jurisdiction over all attorney disciplinary
43
Id. 9(e).
44
Id.
45
Ver. Compl. ⁋ 24.
46
Id.
47
Id. ⁋ 26.
48
Id. ⁋ 28.
49
Id. ⁋ 34.
9
matters. Furthermore, they contend that the various “arms” of the Supreme Court,
including ODC, the PRC, and the BPR, all fall within Delaware’s attorney
disciplinary system. That system, in turn, falls within the exclusive purview of the
Supreme Court. As a result, the Defendants contend that this Court has no
jurisdiction to remedy these alleged wrongs because the Defendants are acting
within their official capacities as either members or agents of the Delaware Supreme
Court.
Apart from seeking dismissal based upon lack of subject matter jurisdiction,
the Defendants also move to dismiss the complaint based upon judicial immunity
for the justice-defendants, and quasi-judicial or prosecutorial immunity for the
ODC-attorney defendants. Finally, the Defendants also move to dismiss Mr.
Abbott’s claims for failure to state claims. In support of their Rule 12(b)(6) motion,
they analyze Mr. Abbott’s claims granularly and submit that none have facial merit.
Mr. Abbott counters that the Court of Chancery’s equitable jurisdiction
permits it to enjoin the Defendants from unlawfully and unconstitutionally
prosecuting and sanctioning him. His arguments can be distilled into two: (1)
alleged violations of constitutional and state rights require remedies that only a trial
court, such as the Court of Chancery, can provide; and (2) the attorney disciplinary
process is administrative in nature, as opposed to judicial. As to the latter argument,
he contends that the Court of Chancery may provide the relief he requests because
the process is administrative in character. As to both arguments, he contends that
Delaware precedent and other persuasive authority supports his contention that “a
lower court may enjoin lawyer disciplinary proceedings where a well-pled claim is
present.”50
50
D.I. 36.
10
Furthermore, Mr. Abbott contends that the various immunities relied upon by
the Defendants do not apply because he does not seek damages – he seeks only
injunctive relief, declaratory relief, and the appointment of a receiver. Finally, he
contends that his various state and federal law claims are sufficiently pled to survive
a Rule 12(b)(6) motion.
IV. STANDARD OF REVIEW
The Court must first address the Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction because it raises a potentially dispositive threshold
issue.51 Subject matter jurisdiction is in essence a question of the power of a court
to hear and decide the case before it.52 Therefore, when considering a motion to
dismiss on this basis, “the Court’s first task . . . is to assess whether the fundamental
predicates to subject matter jurisdiction exist . . . .”53 The Court must then focus on
the nature of the alleged wrong to determine whether the plaintiff’s claims invoke
the Court’s limited jurisdiction.54
Unlike the standards governing a motion to dismiss under Rule 12(b)(6), the
Court’s review of a Rule 12(b)(1) motion is more demanding on the non-movant.55
Namely, the burden rests on the plaintiff to prove that jurisdiction exists, and “where
the plaintiff’s jurisdictional allegations are challenged through the introduction of
51
K&K Screw Prods., LLC v. Emerick Cap. Invs., Inc., 2011 WL 3505354, at *6 (Del. Ch. Aug.
9, 2011).
52
See 4 Charles Alen Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (3d ed.
2021) (recognizing that subject matter jurisdiction goes to the essence of a court’s power to hear
and decide a case).
53
Dover Historical Soc. v. City of Dover Planning Comm’n, 838 A.2d 1103, 1110 (Del. 2003);
Hall v. Coupe, 2016 WL 3094406, at *2 (Del. Ch. May 25, 2016).
54
Coupe, 2016 WL 3094406, at *2.
55
Appriva Shareholder Litigation Co. v. EV3, LLC, 937 A.2d 1275, 1284 (Del. 2007); Rummel
Klepper & Kahl, LLP v. Delaware River and Bay Authority, 2022 WL 29831, at *4 (Del. Ch. Jan.
3, 2022).
11
material extrinsic to the pleadings, he [or she] must support those allegations with
competent proof.”56 To determine if the plaintiff has met his or her burden, the
Court may consider the pleadings, and matters extrinsic to the pleadings.57
The Court recognizes that it is one of limited jurisdiction.58 Accordingly, the
Court of Chancery may acquire subject matter jurisdiction over a case in one of three
ways: (1) the invocation of an equitable right;59 (2) a request for an equitable remedy
when there is no adequate remedy at law;60 or (3) a statutory delegation of subject
matter jurisdiction.61 Furthermore, to decide whether equitable jurisdiction exists,
“the Court must look beyond the remedies nominally being sought, and focus upon
the allegations of the complaint in light of what the plaintiff really seeks to gain by
bringing [the] claim.”62
V. ANALYSIS
The Court has no subject matter jurisdiction to consider Mr. Abbott’s claims.
While in proper circumstances, the Court of Chancery may have jurisdiction to
entertain Section 1983 claims that seek equitable relief, civil racketeering claims that
seek equitable relief, or the appointment of a receiver, the Court has no jurisdiction
to grant Mr. Abbott the relief he seeks against these Defendants or to control this
56
Lewis v. AimCo Properties, LP, 2015 WL 557995, at *2 (Del. Ch. Feb. 10, 2015).
57
Appriva, 937 A.3d at 1284; Coupe, 2016 WL 3094406, at *2 (citing Pitts v. City of Wilmington,
2009 WL 1204492, at *5 (Del. Ch. Apr. 27, 2009)); Sloan v. Segal, 2008 WL 81513, at *6 (Del.
Ch. Jan. 3, 2008) (“This court has the discretion to consider evidence outside the pleadings in
deciding motions under Rule 12(b)(1).”).
58
Candlewood, 859 A.2d at 997.
59
10 Del. C. § 341 (“The Court of Chancery shall have jurisdiction to hear and determine all
matters and causes in equity.”).
60
10 Del. C. § 342 (“The Court of Chancery shall not have jurisdiction to determine any matter
wherein sufficient remedy may be had by common law, or by statute, before any other court or
jurisdiction of this State.”).
61
Diebold Computer Leasing, Inc. v. Commercial Credit Corp., 276 A.2d 586 (Del. 1970); Pitts
v. City of Wilmington, 2009 WL 1204492, at *5.
62
Candlewood, 859 A.2d at 997.
12
process. Even assuming, without holding, that Mr. Abbott’s various claims could
survive the Defendant’s immunity defenses and Rule 12(b)(6) challenges, this Court
has no power or authority to compel the five members of the State’s highest court to
take actions or refrain from taking actions that fall within their official duties. Nor
can the Court direct the efforts of ODC attorneys regarding how to perform their
official duties as agents of the Delaware Supreme Court.
A. The Court of Chancery has no power to declare relief against the
members of the Delaware Supreme Court or to enjoin them from
performing their official functions.
First, there is a basic common law tenet that a lower court has no power to
control the proceedings of a higher court.63 The Defendants cite multiple Delaware
Supreme Court decisions that apply this self-evident principle in the context of
lawyer discipline and governance. In fact, some of the cited decisions address Mr.
Abbott’s attempts, himself, to challenge application of the disciplinary process to
him.
For instance, the Delaware Supreme Court explained the nature of its
exclusive jurisdiction in its 2007 decision In re Abbott.64 With regard to a prior
disciplinary complaint, the Court found that Mr. Abbott had violated the Delaware
Lawyers’ Rules of Professional Conduct and imposed a public reprimand as a
result.65 When doing so, it recognized that only the Supreme Court had the “inherent
and exclusive authority to discipline members of the Delaware Bar.”66 Absent from
Mr. Abbott’s arguments is a possible justification for how a trial court in Delaware
63
Marvel v. New Castle County Superior Court, 143 A.3d 3, 2016 WL 3563273, at *1 (Del. June
21, 2016)
64
925 A.2d 482 (Del. 2007).
65
Id. at 489.
66
Id. at 484 (emphasis added).
13
could ignore such a holding. To the contrary, one need only look to the common
ordinary meaning of the word exclusive to reject Mr. Abbott’s argument: namely,
something that is exclusive is “that which is not divided or shared with others.”67
Accordingly, unanimous Supreme Court decisional authority provides that the
Supreme Court’s authority to regulate the Bar and discipline its members is not
shared with any other body, much less a lower court. This Court has no jurisdiction
over the matter.
Furthermore, Mr. Abbott’s attempts, in other venues, to challenge his current
disciplinary charges have produced similar results. Namely, earlier in the current
process, the Supreme Court held that the Superior Court could not interfere with
ODC or its counsels’ actions by way of extraordinary writ.68 When so holding, the
Supreme Court explained that to permit the Superior Court to do so “would infringe
on [the Supreme Court’s] exclusive authority over the discipline of Delaware
lawyers.”69 There, the Supreme Court did not address the authority of the Court of
Chancery to issue an injunction against individual justices or ODC attorneys.
Nevertheless, the holding applies as equally to this Court as it did to the Superior
Court. The differences between an extraordinary writ and an injunction, while
significant, are not material for the purposes of recognizing the lack of jurisdiction
over this issue.
In addition to relying upon court decisions in matters previously filed by Mr.
Abbott, the Defendants cite a long list of Delaware decisions that confirm the
Delaware Supreme Court’s exclusive jurisdiction over lawyer discipline and
governance.70 Those decisions all compel the same result -- a lower court is unable
67
Am. Heritage Dictionary 473 (2d ed. 1985) (emphasis added).
68
Aaronson, 2019 WL 925856, at *2.
69
Id.70
D.I. 35. Hunt v. Court of Chancery, 254 A.3d 396, 2021 WL 2418984, at *1 (Del. June 10,
2021) (TABLE); Aaronson, 2019 WL 925856, at *2; Crumplar v. Superior Court ex rel. New
14
to control the official functions of a higher court, be it by an extraordinary writ in a
court of law, or an injunction in the Court of Chancery.
The Delaware Supreme Court’s inherent and exclusive jurisdiction over
members of its Bar is neither new nor unique to Delaware. Our Supreme Court has
described its exclusive authority over all such matters as follows:
[t]his tenet is of historic proportions, having been transplanted to Delaware by
the colonists. It is based on the concept, taken from England, that the courts
possess the exclusive right to govern the practice of law.71
Other states unanimously (or almost unanimously) recognize the inherent
authority of the courts to regulate the practice of law.72 Furthermore, the vesting
of such authority in only one court in a state -- its supreme court -- is the majority
rule.73 In Delaware, the absence of Chancery’s jurisdiction over Mr. Abbott’s
claims is fixed by three historical/structural underpinnings. They include (1)
Delaware law’s derivation from English law, (2) separation of powers concepts, and
(3) Delaware decisional authority that recognizes that only the Supreme Court may
exercise this authority on behalf of the “courts.”
First, what the Delaware Supreme Court describes as a “tenet of historic
proportions” comes from English law where the king first had the power to appoint
attorneys in his role as the “the fountain of justice.”74 In fact, for counsel to appear
Castle Cty., 56 A.3d 1000, 1010 (Del. 2012); In re Appeal of Infotechnology, Inc., 582 A.2d 215,
220 (Del. 1990).
71
In re Green, 464 A.2d 881, 885 (Del. 1983).
72
Randy J. Holland, The Delaware State Constitution: A Reference Guide art. IV, at 181 (2002)
(emphasis added). See Rhode Island Bar Ass’n v. Automobile Service Ass’n, 179 A. 139, 142 (R.I.
1935) (recognizing the concept of control by the court which the English colonists brought with
them to America); In re Morse, 126 A. 550, 552 (Vt. 1924) (providing “Justices of the Supreme
Court shall make, adopt, and publish, and may alter or amend rules regulating the admission of
attorneys to the practice of law . . . .”).
73
Felix F. Stumpf, Inherent Powers of the Court § 6.32, at 45 (2008) (“In most states, the inherent
power to discipline lawyers is confined to the supreme courts.”).
74
In re Day et al., 181 Ill. 73, 84 (Ill. 1899); see Leon Green, The Courts’ Power over Admission
and Disbarment, 4 Tex. L. Rev. 1, 3 (1925) (noting that the early history of the legal profession
15
before any court, the king had to provide a special grant of authority.75 At some
point, the English kings shifted the privilege to regulate attorneys to the judges; at
that point, the legal profession came under judicial supervision.76 The decision to
do so followed the recognized need to better regulate the quality of attorneys
appearing before the courts.77 Specifically, King Edward I first authorized his
justices to appoint a specific number of skilled attorneys. He also provided them
the discretion to add to the roles as they saw fit.78 Later, King Henry IV confined
the authority to furnish or withhold the privilege to practice law to the courts with
the following decree: “all attorneys should be examined by the justices, and by their
discretion, their names shall be put upon the roll.”79 Accordingly, our law is derived
from a nation that recognized that only the courts could regulate the practice of law.
Second, separation of powers and divided government concepts are
inextricably intertwined with a court’s inherent authority over this issue.80 As
provided in the federal system, the Delaware Constitution provides for three separate
but equal branches of government in our state system.81 Delaware’s judiciary is the
branch charged with deciding cases or controversies. Those cases and controversies
furnishes a vital chapter in the history of our common law, and that the power to appoint attorneys
was exercised as an “early royal prerogative”).
75
In re Day, 181 Ill. at 84.
76
Leon Green, The Courts’ Power over Admission and Disbarment, at 3.
77
Rhode Island Bar, 179 A. at 143.
78
In re Day, 181 Ill. at 84-85; In re Morse, 126 A. at 552. See Randy J. Holland, The Delaware
State Constitution: A Reference Guide art. IV, at 181 (2002) (recognizing a statute enacted by
Edward I’s direction that the King’s Justices provide enough attorneys to serve the Crown and the
people); Frederick Pollock & Frederic Maitland, History of English Law before the Time of
Edward I 194, 195 (1895) (explaining King Edward I’s regulation of attorneys through his justices’
discretion).
79
In re Morse, 126 A. at 552; Rhode Island Bar, 179 A. at 144.
80
Felix F. Stumpf, Inherent Powers of the Court § 2.4, at 6 (2008); see also Note: The Inherent
Power of the Judiciary to Regulate the Practice of Law, 60 Minn. L. Rev. 783, 785 (1976)
(explaining the common recognition that inherent judicial power is inextricably bound with the
separation of powers doctrine).
81
Del Const. art. II, III, & IV.
16
are frequently brought forward by attorneys who represent the parties. Given the
independence of the judiciary and the judiciary’s inherent power to control
proceedings before it, the judiciary’s oversight of the attorneys that present these
cases has become a well-recognized aspect of the separation of powers doctrine.82
Third, the vesting of exclusive authority within the highest court in the State,
is the final, and most critical aspect of what divests the Court of Chancery of
jurisdiction. Again, the highest court in most states have reserved jurisdiction to
regulate attorney conduct exclusively for themselves.83 Pursuant to the decisions
cited above, the Delaware Supreme Court fits firmly within this majority. Through
what are now generations of decisions, the Delaware Supreme Court has coalesced
all judicial authority over this matter within its own jurisdiction.
In the face of this authority and historical support, Mr. Abbott cites the Court
of Chancery’s decision in In re Severns.84 He argues that the Chancellor’s reference
in that decision to enjoining “discipline” is an explicit recognition of the Court of
Chancery’s authority to provide him relief. In that decision, the court examined a
82
See Evans v. State, 872 A.2d 539, 546 (Del. 2005) (explaining the important role the separation
of powers doctrine has played in Delaware’s constitutional history, and noting that the judiciary,
the executive, and the legislature are “distinct and independent bodies”); see also Superior Court
v. State, Pub. Empl. Relations Bd., 988 A.2d 429, 435 (Del. 2010) (concluding that because the
Supreme Court has authority to administer employment relations for the judicial branch, the
separation of powers doctrine precluded the labor relations board from exercising authority over
judicial branch employees).
83
Felix F. Stumpf, Inherent Powers of the Court 45 § 6.32 n.267 (2008); see e.g., State ex rel.
Buck v. Maloney, 809 N.E.2d 20 (Ohio 2004) (explaining that the Ohio constitution grants “general
supervisory power over the courts of Ohio,” and “[the Supreme Court] has guarded that power
from encroachment by the lower courts”); Anderson v. Alaska Bar Ass’n, 91 P.3d 271 (Alaska
2004) (affirming that the superior court lacked jurisdiction to hear appeals regarding lawyer
disciplinary matters); In re Melograne, 812 A.2d 1164 (Pa. 2002) (explaining that the “inherent
and exclusive power” to admit to practice or to discipline an attorney is confined to the Supreme
Court). But see e.g., Burton v. Mottolese, 835 A.2d 998 (Conn. 2003) (affirming a trial court’s
decision to disbar an attorney); In re License of Delk, 444 S.E.2d 198 (N.C. 1994) (concluding that
the superior court has the inherent power to discipline members of the bar, including disbarment).
84
425 A.2d 156 (Del. Ch. 1980).
17
prospective guardian’s petition to discontinue life support measures to keep a
permanently comatose person alive.85 There, the court entered an injunction against
bad faith prosecution of the guardian and those who followed his lawful directions.86
When doing so, the Chancellor included, within his order, a prohibition against
“disciplinary action filed in defiance of [his] order.”87 There is no indication in the
In re Severns decision, however, that the Chancellor’s reference to enjoining
disciplinary action referred to attorney disciplinary action.88 Rather, the decision is
more reasonably read to refer to disciplinary action against medical providers who
would follow the guardian’s direction to remove life support.89 Regardless, had the
Chancellor contemplated attorney disciplinary actions in his order, it would have
been inconsistent with clear Supreme Court direction regarding the issue. In either
event, the decision does not support Mr. Abbott’s position.
Given the absence of Delaware authority supporting his position, Mr. Abbott
cites persuasive authority from four jurisdictions. They include appellate decisions
from Washington, Georgia, Texas, and North Carolina that recognize that trial courts
in those states have jurisdiction to halt attorney discipline or to control attorney
governance matters.
First, Mr. Abbott cites a Washington intermediate appellate court decision in
Eugster v. Washington State Bar Association, et al.90 In that case, a Washington
attorney, like Mr. Abbott, sought to enjoin that state’s bar association and its
disciplinary counsel from prosecuting a disciplinary complaint against him. 91 The
85
Id. at 157.
86
Id. at 158.
87
Id. at 161.
88
Id.
89
Id.
90
397 P.3d 131 (Wash. App. 2017).
91
Id. at 134.
18
plaintiff-attorney alleged, as does Mr. Abbott, that their system lacked due process.92
The Washington attorney also sought an injunction, as does Mr. Abbott, pursuant
to 42 U.S.C. § 1983 to stop disciplinary proceedings against him.93
At the outset, the Washington trial court dismissed the Washington attorney’s
suit for lack of subject matter jurisdiction.94 On appeal, however, the intermediate
appellate court reversed the trial court’s decision, and held that the trial court had
jurisdiction.95 In its decision, the appellate court stressed that “state courts of
general jurisdiction [must] remain open for civil rights suits.”96 Notwithstanding
that holding, it nevertheless dismissed the attorney’s suit on res judicata grounds.97
At that point, the Washington Supreme Court denied certiorari in the case. 98 As a
result, that state’s highest court did not examine the issue.
Second, Mr. Abbott relies on the Georgia Supreme Court’s decision in Clary
v. Matthews.99 In a two-page decision, the Georgia high court did not expound on
the structure of Georgia’s disciplinary process. It did, however, consider whether a
trial court erred when it refused to consider the merits of a claim to enjoin “a
grievance tribunal appointed by the State Disciplinary Board of the State Bar of
Georgia.”100 In that decision, the Georgia Supreme Court reversed the trial court’s
order of dismissal because the trial court had “[denied] the injunction without the
92
Id.93
Id. at 138; 42 U.S.C. § 1983 (“Every person who . . . subjects any citizen . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured.”). Of note, Section 1983 limits the availability of injunctive relief against judicial
officers, who act their official capacities, to where a declaratory decree is violated, or declaratory
relief is unavailable.
94
Eugster, 397 P.3d at 138.
95
Id. at 141.
96
Id. at 144.
97
Id. at 149.
98
Eugster v. Washington State Bar Ass’n, et al., 404 P.3d 493 (Wash. 2017) (denying petition for
review).
99
160 S.E.2d 338 (Ga. 1968).
100
Id.19
introduction of evidence.”101 The Georgia high court then remanded the case and
directed the trial court to consider evidence and to determine whether an injunction
would be appropriate.102
Third, Mr. Abbott cites the Texas Supreme Court’s decisions in State Bar of
Texas v. Gomez103 and O’Quinn v. State Bar of Texas.104 At the outset, the Gomez
decision does not support his contention. There, the appellate court examined
whether a trial court could grant injunctive or declaratory relief that required the
Texas Bar and the Texas Supreme Court to adopt a mandatory pro bono program for
Texas lawyers. Rather than support Mr. Abbott’s position, the Texas high court
recognized the following:
to the extent the remedies are sought against the Supreme Court, they would
clearly impinge on the Court’s exclusive authority to regulate the practice of
law . . . No subordinate court in Texas has the power to usurp our authority or
responsibility in this area . . . An injunction mandating this court or the State
Bar to implement a mandatory pro bono program would be improper. It
would inappropriately involve the [trial] court in the regulation of the practice
of law.105
Mr. Abbott’s reliance on the 1988 Texas Supreme Court’s O’Quinn decision,
however, would better support his claim had it not been effectively abrogated by the
later Gomez decision and another decision. While the court in O’Quinn did not
expressly hold that the trial court had subject matter jurisdiction to consider an
injunction affecting the Texas disciplinary process, it examined the merits of the trial
court’s decision on appeal.106 It then remanded the matter for further proceedings,
which tacitly confirmed that the trial court had jurisdiction to potentially enjoin the
101
Id. at 339.
102
Id.103
891 S.W.2d 243 (Tex. 1994).
104
763 S.W.2d 397 (Tex. 1988).
105
Gomez, 891 S.W.2d at 246.
106
O’Quinn, 763 S.W.2d at 399.
20
attorney’s disciplinary proceedings.107 In that way, the O’Quinn decision, in a
vacuum, would support Mr. Abbot’s jurisdictional argument.
After the O’Quinn decision, however, the Texas Supreme Court decided
another case similarly to how it decided Gomez. In Board of Disciplinary Appeals
v. McFall,108 the Texas Supreme Court effectively abrogated the holding in
O’Quinn. There, the Court held, in the strongest of language, that a trial court had
no jurisdiction to interfere with the attorney disciplinary process through injunctive
relief or otherwise.109 It then issued both writs of mandamus and prohibition against
the trial court to force it to cease any such attempt.110
Fourth and finally, Mr. Abbott cites the North Carolina Supreme Court
decision in Gilbert v. North Carolina State Bar.111 That decision recognizes the right
of an attorney-respondent to sue in a trial court of general jurisdiction to enjoin the
process.112 The court found subject matter jurisdiction to exist in North Carolina’s
court of general jurisdiction because one should not have a right (to a fair
disciplinary process) without a remedy (the ability to have a trial court develop and
then examine a full record before deciding if a remedy is appropriate).113 This
decision, relied upon by Mr. Abbott, cannot be reconciled with Delaware precedent.
In summary, Mr. Abbott identifies decisions in three states that recognize that
a trial court in those jurisdictions has subject matter jurisdiction over lawyer
disciplinary matters. Nevertheless, a majority of states, that include Delaware,
prohibit trial courts from interfering with the process.114
107
Id. at 404.
108
888 S.W.2d 471 (Tex. 1994).
109
Id. at 472.
110
Id. at 473.
111
678 S.E.2d 602 (N.C. 2009).
112
Id. at 603.
113
Id.
114
Felix F. Stumpf, Inherent Powers of the Court 45 § 6.32 (2008) (recognizing this to include the
majority rule); see e.g., Melling v. Stralka, 465 N.E.2d 857 (Ohio 1984) (explaining the Ohio
21
Finally, implicit in Mr. Abbott’s arguments regarding subject matter
jurisdiction is the position that, in the Delaware’s bifurcated system, only a court of
equity can remedy allegedly unconstitutional actions taken by the Defendants. In
the absence of Delaware authority, he focuses on his Section 1983 claim. He
contends the claim provides him a mechanism to vindicate alleged constitutional
wrongs. In his parallel federal filing, however, the Third Circuit rejected his claims
that Delaware’s system is inadequate to provide him full protection. Namely, it held
that Delaware’s disciplinary process provides “an adequate opportunity . . . for [Mr.]
Abbott to raise his federal claims.”115 If Delaware’s disciplinary process provides
him the ability to litigate his numerous federal claims, it follows that the process
provides him an adequate opportunity to litigate any state claims as well.
Finally, while Mr. Abbott argues that only a trial in the Court of Chancery can
protect his rights, he fails to acknowledge the numerous protections that the
disciplinary process provided and still provides him. Namely, under Delaware’s
system, the PRC acted as would a grand jury, which screened his case and found
probable cause to believe he committed misconduct.116 Currently, he is availing
himself of the procedural protections provided by the BPR. They include (or
Supreme Court’s express constitutional authority arising from the inherent power of the court to
control the attorneys practicing before it); Chessin v. Office of Attorney Regulation Counsel, 458
P.3d 888 (Colo. 2020) (affirming the well-settled principle that the Colorado Supreme Court, as
part of inherent and plenary power, has the exclusive jurisdiction over attorneys and the practice
of law).
115
Mette, 2021 WL 5906146, at *2-3. Although the Third Circuit made its findings regarding the
sufficiency of Delaware’s disciplinary process when considering the Younger abstention doctrine,
its decision, upon finality, also triggers issue preclusion. Although the Defendants did not raise
the argument, the standard for applying issue preclusion is: (1) a question of fact essential to the
judgment, (2) be litigated and (3) determined by (4) a valid and final judgment. Garvin v. Booth,
2019 WL 3017419, at *3 (Del. Super. July 10, 2019). All criteria are apparently met in this
instance, including the requirement that there be a valid and final judgment notwithstanding that
the period for petitioning the United States Supreme Court for certiorari has not yet expired. 18A
Charles Alen Wright & Arthur R. Miller, Federal Practice and Procedure § 4433 (3d ed. 2021).
116
Del. Lawyer’s R. Disciplinary Proc. 9(a)(3).
22
included depending upon at what point the parties find themselves in the BPR
process) his right to request subpoenas, cross-examine adverse witness, and advance
oral and written arguments.117 Finally, he will have the right to raise any exceptions
to a BPR panel recommendation with the body that holds exclusive jurisdiction over
the matter, the Supreme Court. As a result, Mr. Abbott may raise his federal and
state contentions that the process is unfair or unconstitutional within the process.118
Ultimately, the Court with exclusive jurisdiction over the matter will decide the
merits of his claims.
For all of these reasons, Mr. Abbott fails to demonstrate that the Court has
subject matter jurisdiction over his claims. As the Supreme Court has reiterated as
recently as June 2021, “absent [contempt of court situations, the Supreme Court] has
exclusive jurisdiction to address violations of Delaware lawyer disciplinary
rules.”119
B. The Court also has no jurisdiction to entertain Mr. Abbott’s claims for
declaratory relief or an injunction that targets ODC’s attorneys.
Mr. Abbott’s claims against the ODC-attorney defendants requires an
additional layer of analysis because they are not constitutional judicial officers that
sit on the court that holds exclusive jurisdiction over the matter. In largest part, Mr.
Abbott argues that ODC counsels’ duties are merely administrative in nature.
Accordingly, he contends that the Court of Chancery has subject matter jurisdiction
to enjoin them from harassing him and from illegally prosecuting him. To that
117
Id. 12(f). The parties reported in public filings and publicly accessible arguments that the BPR
hearing was scheduled for November 2021. They have not updated the Court, nor do they need
to, of the status of that hearing or its potential outcome.
118
In re Abbott, 2021 WL 1996927, at *2 (Del. May 19, 2021) (“Any objections to the conduct of
the ODC attorneys or the BPR Panel, or their continued participation in the disciplinary
proceedings will be considered by the Court upon review of the Panel’s recommendation.”).
119
Hunt, 2021 WL 2418984, at *1.
23
effect, Mr. Abbott fixates upon the Delaware Supreme Court’s description of ODC
as “an agency of the Court.120” That characteristic, he submits, justifies viewing
ODC’s role separately from that of the Supreme Court’s. His theory is that the Court
of Chancery may enjoin the ODC agency as it could enjoin an executive agency.
In so arguing, Mr. Abbott fails to acknowledge the Supreme Court’s prior
decision in one of his serial challenges to Delaware’s disciplinary process. Namely,
he ignores the Supreme Court’s decision that rejected his earlier attempt to compel
ODC to file a disciplinary complaint against an ODC attorney.121 There, Mr. Abbott
had sought a writ of mandamus to compel this action.122 When considering whether
the Superior Court could issue a writ of mandamus to compel ODC to take such
action, the Supreme Court recognized:
the ODC exists only by virtue of its establishment by this Court, and its chief
disciplinary counsel . . . is appointed by and subject to removal by this Court.
The Superior Court, of course, does not have the power to command this court
or its employees to carry out their official duties. This result is also consistent
with this Court’s ‘inherent and exclusive authority to discipline members of
the Delaware Bar.’ . . . If the Superior Court were to issue a mandamus to
command the ODC or its chief disciplinary counsel to take action on some
disciplinary complaint, that would infringe on this Court’s exclusive authority
over the discipline of Delaware lawyers.123
Based upon this reasoning, Mr. Abbott’s present attempt to interfere with the ODC-
attorney defendants’ duties by way of injunction in this Court similarly lacks merit.
Furthermore, in the Third Circuit’s recent decision where it affirmed the
dismissal of Mr. Abbott’s federal action, that court recognized that Delaware’
120
See Crumplar, 56 A.3d at 1010 (referring to the ODC as an agency of this court, which is
consistent with the principle that the Supreme Court alone has the inherent and exclusive
responsibility for disciplinary matters).
121
Aaronson, 2019 WL 925856, at *1.
122
Id.123
Id. at *2.
24
attorney disciplinary process, including its ODC component, is entirely judicial in
nature.124 There, when examining whether the Younger abstention doctrine applied,
the Third Circuit considered the following: (1) whether there were ongoing judicial
proceedings, (2) whether those proceedings implicate important state interests, and
(3) whether there is an adequate opportunity in the state proceeding to raise federal
challenges.125
In analyzing these criteria, the Third Circuit found Delaware’s disciplinary
process to be entirely judicial in nature.126 That “judicial” characterization included
the functions performed in all parts of the process, from beginning to end, including
those functions performed by ODC’s attorneys.127 As that court held, “the Delaware
Supreme Court possesses ultimate authority over each stage of the proceedings from
complaint to final resolution, which either the Court or an arm of the Court carries
out.”128
C. The Delaware Supreme Court’s May 2021 Order independently
divests this Court and other lower courts of jurisdiction over Mr.
Abbott’s claims.
The Delaware Supreme Court’s May 2021 Order places a further overlay on
the subject matter jurisdiction analysis in Mr. Abbott’s case. Namely, each of Mr.
Abbott’s claims and the remedies he seeks run headlong into a Supreme Court’s
recent Order that provides:
ODC attorneys shall continue to prosecute the pending disciplinary action
against Abbott, and the current BPR Panel assigned to consider the charges
against Abbott shall continue to hear the action and make a recommendation
124
Mette, 2021 WL 5906146, at *3.
125
Id. at *2.
126
Mette, 2021 WL 5906146, at *3.
127
Id. at *1.
128
Id. at *2 (emphasis added).
25
to the Court. Any objections to the conduct of the ODC attorneys or the BPR
Panel, or their continued participation in the disciplinary proceedings will be
considered by the [Delaware Supreme Court] upon review of the Panel’s
recommendations . . . . This is a Court order.129
This Order enjoins Mr. Abbott from filing any new legal action to attempt to
circumvent the process. It has the further effect of divesting this Court of any
jurisdiction, to the extent that any does exist, from interfering in Mr. Abbott’s
ongoing disciplinary proceedings. Subject matter jurisdiction goes to the power of
a court to hear a particular matter. Where the State’s highest court issues an order
that mandates that no court below may interfere with a process that (1) is underway,
and (2) falls within the high court’s jurisdiction, the order divests lower courts of
jurisdiction over the matter. For this additional reason, Mr. Abbott’s claims must
be dismissed for lack of subject matter jurisdiction.
VI. CONCLUSION
For the reasons discussed above, Mr. Abbott’s claims are DISMISSED with
prejudice because this Court has no subject matter jurisdiction to grant him the
relief130 he requests. Because the Court has no jurisdiction, it need not separately
analyze whether Mr. Abbott’s claims should also be dismissed because of judicial,
quasi-judicial, or prosecutorial immunity. Likewise, the Court declines to address
the merits of Defendants’ Rule 12(b)(6) challenges.
IT IS SO ORDERED.
/s/Jeffrey J Clark
Resident Judge
129
In re Abbott, 2021 WL 1996927, at *2.
26