In Re: The Matter of Alan Ira Karten

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 17, 2008
No. 08-10101 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00048
IN RE:
THE MATTER OF ALAN IRA KARTEN,
Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 17, 2008)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Alan Ira Karten, an attorney proceeding pro se, appeals his reciprocal
disbarment from practice in the United States District Court for the Southern
District of Florida. After the Florida Bar filed a complaint against Karten, alleging
that he violated Rule 4-8.4(c) of the Rules Regulating the Florida Bar, a Florida
judge, acting as referee, heard witness testimony at a violation hearing in
considering the complaint. The referee recommended that Karten be disbarred, and
the Florida Supreme Court accepted the recommendation and ordered him
disbarred. Karten filed a motion for new trial, which a successor referee
considered on the merits without hearing witness testimony. The successor referee
recommended denial of the motion for new trial, and the Florida Supreme Court
accepted that recommendation and denied Karten a new hearing on the complaint.
The district court issued an order of reciprocal disbarment based on Karten’s
disbarment by the Florida Supreme Court.
On appeal, Karten argues that the district court abused its discretion in
disbarring him because the successor referee denied him due process in
considering his motion for new trial during the state disbarment proceedings.
Specifically, he argues that the successor referee improperly failed to consider
evidence he submitted in relation to other motions he filed after the original referee
conducted the violation hearing. Karten also argues that the successor referee
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denied him due process because she ruled on the motion for new trial without
hearing testimony, even though Karten submitted evidence regarding the
credibility of witnesses at the violation hearing.
“We review a district court’s disbarment order only for abuse of discretion.”
Matter of Calvo, 88 F.3d 962, 967 (11th Cir. 1996). The disbarred attorney bears
the burden of showing good cause why the district court should not have entered a
reciprocal disbarment order. Id.“[D]isbarment by federal courts does not automatically flow from
disbarment by state courts.” Theard v. United States, 354 U.S. 278, 282, 77 S. Ct.
1274, 1276 (1957). Nonetheless, a state court disbarment should be accorded
federal effect, unless it appears from an “intrinsic consideration” of the state record
that: (1) the state disbarment proceeding lacked due process; (2) the proof
supporting the disbarment by the state court was so infirm as to give a federal court
the “clear conviction” that a reciprocal disbarment order is inappropriate; or
(3) another grave reason convinces the federal court that the state court disbarment
should not give rise to a federal court disbarment, under the principles of right and
justice. Matter of Calvo, 88 F.3d at 966-67 (citing Selling v. Radford, 243 U.S. 46,
51, 37 S. Ct. 377, 379 (1917)); see also S.D. Fla. Rules Governing Attorney
Discipline, Rule V.E. (requiring Selling-based analysis in disbarment actions). For
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the purposes of the first ground listed in Matter of Calvo, due process “is narrowly
defined . . . as ‘want of notice or opportunity to be heard.’” Matter of Calvo, 88
F.3d at 967 (quoting Selling, 243 U.S. at 51, 37 S. Ct. at 379).
“The fundamental requirement of due process is the opportunity to be heard
at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S.
319, 333, 96 S. Ct. 893, 902 (1976) (internal quotation omitted). “The guarantees
of due process call for a hearing appropriate to the nature of the case.” United
States v. Raddatz, 447 U.S. 667, 677, 100 S. Ct. 2406, 2413 (1980) (internal
quotation omitted).
If a judge presiding in a civil bench trial steps down before making findings
of fact and conclusions of law, a successor judge generally cannot make credibility
determinations and should retry the case. Emerson Elec. Co. v. General Elec. Co.,
846 F.2d 1324, 1325-26 (11th Cir. 1988) (citing Fed. R. Civ. P. 63). However, a
successor judge hearing a case on remand, after the original judge has stepped
down, may make findings of fact and conclusions of law on the existing record or
the record as supplemented, or may choose to grant a new trial, at his discretion.
Golf City, Inc. v. Wilson Sporting Goods Co., 555 F.2d 426, 438 n.20 (5th Cir.
1977).1 The Supreme Court has held that a district judge has broad discretion to
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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent decisions of the former Fifth Circuit handed down prior to October 1, 1981.
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accept a magistrate’s credibility findings without hearing witness testimony, in the
criminal suppression hearing context, consistent with due process. Raddatz, 447
U.S. at 680-81, 100 S. Ct. at 2415 (noting that due process concerns are reduced in
the suppression hearing context, as compared to the criminal trial context).
The district court did not abuse its discretion in issuing a reciprocal
disbarment order against Karten based on its finding that he was not denied due
process during the Florida state disbarment proceedings. We note initially that
Karten only challenges his reciprocal disbarment based on the first ground listed in
Matter of Calvo because he only alleges due process violations that occurred when
the successor referee was considering his motion for new trial after the Florida
Supreme Court disbarred him.
First, the successor referee did not deprive Karten of an opportunity to be
heard because she limited her analysis of the motion for new trial to the 12 claims
he made in the motion. Notably, Karten’s motion for new trial was based solely on
the 12 grounds addressed by the successor referee. Although the successor referee
apparently did not discuss the numerous additional exhibits that Karten submitted
regarding the motion for new trial, she explicitly stated that the report was based
on her consideration of “all the pleadings and the record evidence as to the claims
made in the” motion for new trial. In sum, the record does not indicate that the
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successor referee deprived Karten of the opportunity to be heard by failing to
consider all of the evidence he submitted in support of his motion for new trial.
Second, the successor referee did not deprive Karten of due process by
making a recommendation regarding his motion for new trial without hearing
testimony, although the original violation hearing turned on questions of
credibility. The successor referee had discretion in determining that she could
consider the motion without hearing witness testimony, even if that involved an
acceptance of the original referee’s credibility determinations. Given the narrow
definition of due process in the disbarment context, Karten was not deprived of due
process as a result of the successor referee’s consideration of his motion for new
trial.
Therefore, the district court did not abuse its discretion in issuing the
reciprocal disbarment order against Karten, on the basis of his disbarment by the
Florida Supreme Court. Accordingly, we affirm Karten’s reciprocal disbarment.
AFFIRMED.
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