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Rose v. Office of Professional Conduct

Supreme Court of Utah

August 15, 2017

Susan Rose, Appellant,
v.
Office of Professional Conduct, Appellee.

         On Direct Appeal

         Third District, Salt Lake The Honorable Royal I. Hansen No. 070917445.

          Susan Rose, pro se, Sandy, for appellant

          Adam C. Bevis, Billy Walker, Salt Lake City, for appellee

          Justice Pearce authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Durham, and Judge Pohlman joined.

          Having been recused, Justice Himonas does not participate herein; Court of Appeals Judge Jill N. Pohlman sat.

          OPINION

          Pearce, Justice

         INTRODUCTION

         ¶1 The district court disbarred Susan Rose for violations of Utah's Rules of Professional Conduct in cases Rose handled in both federal and state courts. Her disbarment came after the district court struck her answer and entered default judgment against her. The disbarment did not come suddenly, or by surprise. Over the course of several years, Rose had received multiple warnings from multiple tribunals. These tribunals called her motion practice "bizarre, " "inscrutable, " "dilatory, " "frivolous, " "legally meritless, " "wholly superfluous, " "utter[ly] incomprehensibl[e], " "unresponsive, immaterial, and redundant, " and "not based in reality."

         ¶2 After receiving and investigating referrals concerning Rose's conduct, the Office of Professional Conduct brought an action in the Third District Court. Nearly eight years later, the district court struck Rose's answer and entered default judgment, concluding that Rose had abused the discovery and litigation process. By entering default judgment, the court accepted as true the allegations that Rose had violated a number of the Rules of Professional Conduct.

         ¶3 At her subsequent sanctions hearing, Rose refused to defend herself. She told the district court, "I think it's fair to say I know how this will go, I know how the end result will be, and I'm done." And in the end, Rose was disbarred.

         ¶4 Rose does not explicitly argue on appeal that the district court should not have entered default judgment, that her conduct did not violate the rules, or that disbarment was too harsh a sanction.[1] Instead, she claims that Utah's process is unconstitutional in a number of ways. She contests this court's jurisdiction and argues that the Supremacy Clause and principles of res judicata prevent Utah from disciplining her. She also brings a number of constitutional claims, arguing that Utah's attorney discipline proceedings violated her due process and equal protection rights under the United States Constitution. She ultimately petitions this court to dismiss this case entirely because "Utah's system is an inquisition" that violates her due process and equal protection rights and is therefore "void."

         ¶5 We affirm the order of the district court but note that this is an unusual case. The district court entered a default judgment against Rose, and Rose chose not to defend herself at the sanctions hearing. Rose has not directly challenged the decision to enter default or the appropriateness of disbarment as a sanction. This requires us to start from the factual premise that Rose committed the violations of which she was accused. We are only left to sort through Rose's challenges to the attorney discipline system.

         BACKGROUND

         ¶6 Susan Rose was admitted to the Utah State Bar in 1997. In 2001 and 2005, the Utah Bar received two informal complaints against Rose in two separate cases-one in federal court and the other in state court.

         I. The Federal Court Case

         ¶7 In 1999, Rose represented a group of plaintiffs in an action before the Navajo Tribal Court. The Tribal Court granted Rose's clients relief. Rose later tried to enforce the Tribal Court's order against San Juan County and several non-tribal member defendants in federal district court. Her case was assigned to Judge Dale Kimball.

         ¶8 While representing her clients in federal court, Rose filed several pleadings and motions that the court found to be frivolous. After Judge Kimball granted a motion to dismiss against certain defendants based on sovereign immunity and then dismissed the case as to several other defendants for lack of jurisdiction, Rose filed a notice of appeal in the Tenth Circuit Court of Appeals. She also moved to disqualify Judge Kimball.

         ¶9 In Rose's motion to disqualify Judge Kimball, Rose emphasized Judge Kimball's apparent religious affiliation. Rose complained that "being a member of said Church and an acknowledged social leader in Utah, [if he] would have ruled to enforce the civil rights of the Navajo Court plaintiffs, Judge Kimball may have been subjected to great social and political pressures." Rose claimed that ruling in her clients' favor would have caused Judge Kimball "political and social embarrassment."

         ¶10 The judge did not agree, and he told her so. He explained that Rose and her clients would "not find a judge more sympathetic to their claims, more willing to apply the law impartially, or more patient with [Rose's] blundering-but-probably-well-meaning efforts." (Emphases in original.) Judge Kimball nevertheless recused himself because he believed that her clients "ha[d] lost faith in th[e] court's ability to treat them impartially."

          ¶11 Judge Kimball's opinion and recusal order describe Rose's conduct before his court and her competence as an attorney:

• The court had been "tolerating [Rose's] repeated and time-consuming calls to chambers with procedural questions and also tolerating Plaintiffs' often incomprehensible pleadings and memoranda."
• "Defendants have repeatedly-'and justifiably'- requested . . . that the court dismiss Plaintiffs' Complaint based on . . . its utter incomprehensibility and its failure to identify which claims are alleged against which Defendants. This court, however, . . . has chosen . . . to endure Plaintiffs' inscrutable Complaint."
• "Plaintiffs [filed a] constant stream of motions, corrections to motions, amendments to motions, refiling of motions after the responsive memorandum had been filed by the Defendants, and further briefing of motions after oral arguments."
• "[T]he court has clearly demonstrated its frustrations with Plaintiffs and their counsel for their failure to understand the law or to follow the Federal Rules of Civil Procedure, the local rules, and the Rules of Professional Conduct."
• "Plaintiffs also cast various aspersions regarding this court's alleged statements during oral arguments, without any citations to transcripts to demonstrate that such statements were actually made and the context in which they are made. To the extent that there exists any kernel of truth in any of the various statements that Plaintiffs allege that the court made, the statements, not surprisingly, have been taken entirely out of context and/or mischaracterized . . . ."
• "[I]t was apparent in various memoranda and oral arguments throughout this litigation that Plaintiffs and their counsel do not appear to understand the concepts of [the prior] Orders or the reach of the Orders, as they have repeatedly mischaracterized and/or misrepresented various statements in the Order."
• "Only in this case would one find (1) Plaintiffs' counsel attempting to represent a Defendant in the same case; (2) a Defendant who opposes his dismissal from the case; and (3) Plaintiffs claiming that the court's bias against Plaintiffs is reflected in the court's purported interference with a Defendant's filing of a responsive pleading."

(Emphases in original.) Judge Kimball remarked that, in short, it was "clear that [Rose's] perception is not based in reality."

         ¶12 The case was reassigned to Judge Bruce Jenkins. Judge Jenkins dismissed several claims against the remaining defendants. Rose in turn filed motion after motion, amendments to motions, objections to rulings, and motions for reconsideration. Judge Jenkins ultimately dismissed all claims against the remaining defendants for a lack of any factual basis for any claim.

         ¶13 Over the next three years, Rose continued to deluge the court with her motion practice. Finally, in 2005, Judge Jenkins issued a 172-page memorandum decision clarifying his 2002 pretrial hearing ruling.

         ¶14 Judge Jenkins's order also commented on Rose's conduct before his court and her competence as an attorney:

• "[G]leaning the elements of a particular antitrust law violation from the dense thicket of the plaintiffs' pleadings, original and amended, proves a daunting and largely fruitless task."
• "[I]t becomes apparent that many of plaintiffs' theories of liability had already failed as a matter of law-one because the statute in question simply does not afford Plaintiffs a private civil remedy, the others because they are legally meritless."
• "[Plaintiffs'] claims may properly be dismissed as frivolous . . . because they are based upon an indisputably meritless legal theory, or are footed upon conclusory assertions rather than specific facts."
• "From the commencement of this litigation, plaintiffs' counsel has taken a dramatically different approach to pleading . . . claims, at times shuffling each plaintiff's factual allegations and legal assertions together as one would a deck of playing cards, sacrificing narrative sequence in favor of argumentative characterizations and conclusory assertions."

         ¶15 Even after the district court had entered its final judgment and exhaustively explained the basis for its decision, Rose continued to file motions in the federal district court. She also filed a pleading in the Tenth Circuit asking it to recuse Judge Jenkins. Judge Jenkins responded to Rose in an order stating that the motions before him were "wholly superfluous." Judge Jenkins pronounced "enough is enough" and refused to entertain any further motions in the case until the Tenth Circuit had decided Rose's motion to recuse.

         ¶16 At various points before that, Rose had moved the federal district court to recuse Judge Jenkins. Judge Jenkins denied each of Rose's five motions to recuse him. He denied her motions "for lack of the requisite factual grounds that would cause an objective observer reasonably to question the court's impartiality." He reminded Rose that each of her clients' claims had been dismissed years earlier as "frivolous." He further mused that "[t]he underlying purpose of the plaintiffs' recusal motions may be discerned in the particular relief . . . sought: disqualification of the entire bench of the District Court of Utah" for a judge with a "more favorable view of the Plaintiffs' theories of jurisdiction and liability." (Emphasis in original.)

         ¶17 Rose appealed Judge Jenkins's decision to the Tenth Circuit, and Judge Jenkins issued another order that "no further motions may be filed in this case" pending a mandate from the Tenth Circuit. The Tenth Circuit dismissed Rose's appeal as "frivolous." But Rose continued to file motions. In 2007, Judge Jenkins issued an opinion stating, "[a]t some point, litigation must come to an end, and judgments must become final. For plaintiffs . . ., this case has indisputably reached that point."

          II. The State Court Case

         ¶18 Rose represented a mother in Utah State Court after the mother's child's grandparents filed a petition for visitation. The case was assigned to Seventh District Court Judge Lyle R. Anderson.

         ¶19 Rose questioned whether the Navajo Nation Tribunal or the Utah State Court had jurisdiction to hear the case and eventually moved to stay the State Court proceedings. Judge Anderson set a hearing on Rose's motion to stay for February 2005. On the morning of the hearing, Rose claimed she could not attend the hearing because a Navajo Tribal Court Order provided that anyone appearing in the State Court action would be subject to confinement for a year or a $5, 000 fine. She also objected to all proceedings in the case until the issue of jurisdiction could be determined. Even so, Judge Anderson heard testimony from the witnesses who had appeared that day and issued an order two days later.

         ¶20 Like Judge Kimball and Judge Jenkins, Judge Anderson commented on Rose's conduct before the court and her competence as an attorney:

As an initial matter, the court notes that the quality of the pleadings filed in the case on behalf of the Mother suggest that [Rose] is only marginally competent, if that, to practice law in Utah. The clerk is directed to make copies of all pleadings filed by counsel in this case and submit them with a copy of this order to the Office of Disciplinary Counsel of the State of Utah.

         ¶21 Judge Anderson explained that Rose's claim that she was forbidden to appear in the State Court action was "entirely self imposed" because her client sought and obtained the order forbidding appearances in the State Case. He set another hearing in the case. On the date of that hearing, Rose filed a motion to disqualify Judge Anderson. Judge Anderson referred the motion to Judge Scott Johansen for review. A few days later, Judge Johansen issued an order:

• Rose's motion to disqualify Judge Anderson was untimely except as to "an undated threat to refer Judge Anderson to the 'Judicial Misconduct Committee.'"
• Rose's allegations against Judge Anderson "fell woefully short of the standard."
• "The interjection of these other issues is so bizarre as to raise serious questions of compliance with Rule 11 URCP . . . . [R]espondent's counsel is directed to appear and show cause why the inclusion of the requests and issues wholly irrelevant to a Rule 63 Motion, failure to sign the affidavit, filing an untimely motion, objecting to a reviewing judge who is clearly authorized by the rule, and alleging facts well below the legal standard for disqualification, do not constitute a violation of Rule 11."

         ¶22 Rose objected to the proceedings, and the court sanctioned her. It ordered Rose to pay attorney fees and submit a report regarding the standard for judicial disqualification.[2] Rose then filed a suit against the grandparents in federal court, which was dismissed for lack of jurisdiction. After that case was dismissed, Rose attempted to appeal to the Tenth Circuit, and that appeal was also dismissed for lack of jurisdiction. Rose also filed a writ of certiorari before this court in 2005. Grandparents eventually dismissed their claims.

         III. OPC's Prosecution

         ¶23 In the midst of the aforementioned litigation, the Utah Bar received an informal bar complaint against Rose for her conduct in the Federal Case and another for her conduct in the State Case.[3] In February 2004, the Office of Professional Conduct (OPC) served a Notice of Informal Complaint on Rose for allegations arising from the Federal Case, and in June 2005 it served a similar notice for allegations arising from the State Case. Immediately after receiving the first notice, Rose asked to postpone the investigation to accommodate concerns about her health. Both cases were delayed until 2007.

         ¶24 In September 2007, a three-member screening panel of the Utah Supreme Court's Ethics and Discipline Committee heard both cases. The panel decided probable cause existed that Rose had violated the Utah Rules of Professional Conduct and recommended that a formal complaint be filed. In December 2007, OPC filed a Complaint in district court alleging twelve violations of seven rules.[4]The case was assigned to Judge Robert Faust in the Third District Court.

         ¶25 To illustrate how the case proceeded, OPC's Complaint against Rose comprises pages 1-25 in a 28, 000 page appellate record; Rose's answer does not appear until page 2, 507. Her answer was filed more than a year after OPC filed the Complaint. In the interim, Rose moved for various extensions of time, for a more definite statement, for dismissal, for change of venue, to file an over-length brief, to stay proceedings, to strike various portions of the Complaint before responding, to strike the Complaint itself, and to disqualify Judge Faust-among other things.

         ¶26 Rose filed many of these motions in lieu of answering despite court orders fixing a deadline for Rose to answer the Complaint. For example, the court ordered Rose to answer the Complaint within ten days on May 21, 2008. When Rose failed to comply, on July 29 the court cautioned Rose that if she did not answer OPC's Complaint, "default could be entered." On August 14, the court again ordered Rose to answer within ten days or suffer entry of default judgment. The court repeated its order on September 19, giving Rose until September 29 to answer. Rose filed a motion to disqualify Judge Faust, who recused himself so as to not cause further delay.

         ¶27 The case was reassigned to Judge Vernice Trease. At a hearing before Judge Trease on December 4, the court ordered Rose to respond to the Complaint by January 26, 2009. Rose failed to appear at a hearing in the matter on January 16. She also failed to meet the court's January 26 deadline. On January 27, OPC filed a motion for entry of default judgment citing Rose's refusal to obey court orders and respond to the Complaint.

          ¶28 In February, Rose submitted a document titled "Respondent's Forced Answer as Ordered by the District Court . . . Issued from the Bench as Outside the Court's Jurisdiction to Order." In her "Forced Answer, " Rose refused to recognize the court's jurisdiction over her attorney discipline case. She called the entire case "void ab initio, " argued that answering the Complaint would immediately harm her clients, and claimed that the court's order requiring her to answer the Complaint "constitutes duress."

         ¶29 Rose's motion practice continued. Over the next year, she moved for extensions of time, to stay the proceedings, and to strike various parts of the Complaint. Rose eventually filed a document titled "Compliance with the Court's January 29 and February 2 Orders." There she claimed OPC's action against her was unconstitutional. Rose invoked her Fifth Amendment right against self-incrimination and claimed she did not have to produce documents in discovery because they were "irrelevant and production does not apply." She repeated the following answer verbatim in response to almost all of OPC's requests for admission:

This attorney lacks the resources and time and money to go through the [requested] document page by page and word by word to ascertain if this document is true and correct as a copy, therefore this attorney does not know if it is, and therefore denies.
Certified copies of all orders are available to the Bar from the 7th District Court, and federal court sources. This admission has nothing to do with the category of charges in the Bar complaint, and is irrelevant to this prosecution. If the Bar wishes to show the relevance to the charges in the Bar's complaint, this attorney may wish to supplement this answer.
I also state that I fear anything I say, as to this admission request will be used against me to also be used to subject me to an unknown punitive or criminal prosecution, of an unspecified nature, and therefore I claim my 5th [sic] United States Constitution's 5th Amendment ...

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