471 F.3d 637 | 6th Cir. | 2006
Lead Opinion
STAFFORD, D.J., delivered the opinion of the court, in which SILER, J., joined. CLAY, J. (pp. 646-51), delivered a separate concurring opinion.
OPINION
Plaintiff, Geoffrey N. Fieger (“Fieger”), appeals the district court’s dismissal of his § 1983 civil rights action challenging the refusal of certain Michigan Supreme Court Justices to recuse themselves from cases in which he is involved. We AFFIRM the district court’s decision to dismiss Fieger’s challenge to the Justices’ past recusal decisions. We REVERSE the district court’s decision to dismiss Fieger’s challenge to the constitutionality of Michigan’s recusal rule.
I. BACKGROUND
This appeal arises out of what the district court described as the “acrimonious and well-publicized dialogue” between Fieger, a former gubernatorial candidate and well-known Michigan trial lawyer, and several justices of the Michigan Supreme Court. Fieger has been an outspoken critic of the Michigan Supreme Court, and — in turn- — several of the justices have made public remarks regarding Fieger. Claiming bias, Fieger sought the recusal of four of the justices — Maura Corrigan, Clifford W. Taylor, Robert P. Young, Jr., and Stephen J. Markman (collectively, “the Justices”) — in two appeals that were pending before the Michigan Supreme Court in cases involving his clients. In one of those cases, Gilbert v. DaimlerChrysler Corp., 469 Mich. 883, 669 N.W.2d 265 (Mich.2003), a jury awarded Fieger’s clients a substantial verdict. After the verdict was affirmed by the Michigan Court of Appeals, the Michigan Supreme Court granted leave to appeal, then reversed the trial court’s judgment entered on the verdict, thus causing Fieger to lose his entitlement to contingent fees. In the other case, Graves v. Warner Brothers, 469 Mich. 853, 669 N.W.2d 552 (Mich.2003), a judgment favorable to Fieger’s clients was reversed by the Michigan Court of Appeals. The Michigan Supreme Court later denied the plaintiffs application for appeal, again causing Fieger to lose his entitlement to contingent fees. Although Fieger was trial counsel in both cases, he did not argue either case at the appellate level.
In the meantime, on his own behalf, Fieger filed this action in the United States District Court for the Eastern District of Michigan (Fieger v. Ferry, No. 04-60089) (the “Fieger case”). He did so in response to the district court’s suggestion in the Gilbert ease that “[i]f Mr. Fieger believes he has a viable claim, he may file a separate suit where his due process interests, whatever they may be, form the ‘primary question’ presented.” Gilbert, 298 F.Supp.2d at 616 n. 10. In this, the Fieger case, Fieger alleged that the Justices deprived him of his constitutional rights by expressing “public, personal, political, and professional animus” toward him, by refusing to recuse themselves from cases in which he was involved, and by actively pursuing disciplinary proceedings against him before the Attorney Grievance Commission. Invoking 42 U.S.C. § 1983, Fieger asked the court to enter “[a] declaratory judgment that the Defendants, and each of them, has violated the Constitutional Rights of the Plaintiff’ as alleged. He also asked the court to enter a judgment declaring that the Michigan Supreme Court’s interpretation of the state’s recusal rule was unconstitutional. Finally, he asked the court to enter a judgment declaring that Michigan’s recusal rule either
The district court dismissed Feiger’s ease on Rooker-Feldman grounds. Despite Fieger’s allegation that “[tjhere is no parallel State proceeding, nor any decision or order of a State Court which would divest this Court of jurisdiction under the Rooker-Feldman doctrine,” the district court determined that it could not enter “[a] declaratory judgment that the Defendants, and each of them, has violated the Constitutional Rights of the Plaintiff’ without sitting in review of the state court’s implicit judgment that Fieger’s constitutional rights were not violated by the Justices’ failure to recuse themselves. The district court also rejected Fieger’s as-applied challenge to Michigan’s recusal rule, refusing to “second guess” the Michigan Supreme Court’s interpretation of its own rule. Finally, the district court rejected Fieger’s facial challenge to the state court recusal rule, finding such challenge to be inextricably intertwined with the final judgments of the Michigan Supreme Court. In the words of the district court:
The substance and language of the Complaint make clear that Plaintiffs constitutional challenge is not “general” at all; rather the Complaint’s factual and legal allegations are exclusively limited to the manner in which Plaintiff believes the Justices violated his rights or the rights of his clients by refusing to recuse themselves. Plaintiffs factual allegations are entirely specific to the Justices’ political censure of him and their rejection of his motions for recusal. More conspicuously, Plaintiffs legal claims are limited to the alleged injury to Ms constitutional rights caused by the Justices’ decision not to recuse themselves. Indeed, the very manner in which Plaintiff frames the issue presented by his putative challenge betrays his intention to relitigate issues that were prominent in the state proceedings. Certainly, there may be situations where a portion of a complaint stating a general challenge may be permitted to proceed even though the general thrust of the complaint presents an as-applied challenge. However, where, as here, a complaint is devoid of any legal or factual claim that is independent of previous state court proceedings, the Rooker-Feldman doctrine requires dismissal.
Distr. Ct. Order at 12-13 (citations omitted); J.A. at 28-29.
Fieger filed this timely appeal on March 1, 2005.
II. MICHIGAN’S RECUSAL RULE
Michigan Court Rule (“MCR”) 2.003 governs the disqualification of judges in civil proceedings, providing, in pertinent part, as follows:
(A) Who May Raise. A party may raise the issue of a judge’s disqualification by motion, or the judge may raise it.
(B) Grounds. A judge is disqualified when the judge cannot impartially hear a case, including but not limited to instances in which:
(1) The judge is personally biased or prejudiced for or against a party or attorney.
(C) Procedure.
*642 (3) Ruling. The challenged judge shall decide the motion. If the challenged judge denies the motion,
(a) in a court having two or more judges, on the request of a party, the challenged judge shall refer the motion to the chief judge, who shall decide the motion de novo;
(b) in a single-judge court, or if the challenged judge is the chief judge, on the request of a party, the challenged judge shall refer the motion to the state court administrator for assignment to another judge, who shall decide the motion de novo.
Fieger maintains that the Michigan Supreme Court does not follow the procedures set forth in MCR 2.003(c)(3) for review of a judge’s decision not to recuse himself or herself from a case. He contends that, by failing to follow such procedures, the Michigan Supreme Court violates the Constitutional guarantee to due process. In his complaint, he asks the court to enter a declaratory judgment that the word “judge” in MCR 2.003 includes a “Justice” of the Michigan Supreme Court, thus making the review procedures applicable to the Michigan Supreme Court. In the alternative, Fieger asks the Court to declare that the rule is unconstitutional, both on its face and as applied.
III. THE ROOKER-FELDMAN DOCTRINE
In Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), the Supreme Court held that a federal district court may not review a state court decision for alleged federal law error. Such holding was reaffirmed sixty years later in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). In Feldman, the court wrote:
[L]ower federal courts possess no power whatever to sit in direct review of state court decisions. If the constitutional claims presented to a United States District Court are inextricably intertwined with the state court’s denial [of a claim] in a judicial proceeding ... then the District Court is in essence being called on to review the state-court decision. This the District Court may not do.
Id. at 483 n. 16, 103 S.Ct. 1303 (internal quotation marks and citation omitted). The principles enunciated in Rooker and Feldman have become known as the Rook-er-Feldman doctrine. As clarified in Exxon Mobil, application of the doctrine is confined to “cases brought by state-court losers complaining of injuries by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil, 544 U.S. at 284, 125 S.Ct. 1517. As stressed in Exxon Mobil, “[i]f a federal plaintiff pres-entís] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party ..., then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.” Id. at 293, 125 S.Ct. 1517 (internal quotation marks omitted); see also McCormick v. Braverman, 451 F.3d 382, 394 (6th Cir.2006) (explaining that “[i]n Exxon, the Supreme Court implicitly repudiated the circuits’ post-Feldman use of the phrase ‘inextricably intertwined’ to extend Rook-er-Feldman to situations where the source of the injury was not the state court judgment”); Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 87 (2d Cir.2005) (explaining that “federal plaintiffs are not subject to the Rooker-Feldman bar unless they complain of an injury caused by a state judgment” (emphasis omitted)); Davani v. Virginia Dep’t of Transp., 434 F.3d 712, 719 (4th Cir.2006) (explaining that
IV. DISCUSSION
A. Standard of Review
This court reviews de novo a district court’s dismissal of a case on the grounds that the Rooker-Feldman doctrine deprives it of subject matter jurisdiction. McCormick, 451 F.3d at 389.
B. Standing
Although the district court did not address the issue of Fieger’s standing to sue, it is — of course — an issue that may be raised and/or considered at any time. In general, to establish standing to bring suit, a plaintiff must show that (1) he or she has “suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In the context of a declaratory judgment action, allegations of past injury alone are not sufficient to confer standing. The plaintiff must allege and/or “demonstrate actual present harm or a significant possibility of future harm.” Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 527 (6th Cir.1998); see also O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (explaining that “[pjast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief’); Golden v. Zwickler, 394 U.S. 103, 109-10, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969) (dismissing the plaintiffs action seeking a declaration that a- state statute was unconstitutional because, although the plaintiff had been prosecuted under the statute in the past, the likelihood of the plaintiffs suffering repeat exposure to the statute was remote and, thus, the plaintiff lacked standing).
Here, Fieger has alleged that “[t]he threat that the Plaintiff cannot, and will not, receive a fair hearing before an impartial and independent tribunal is real, immediate, and continuing.” Compl. at ¶ 20. In 2005, the district court in Gilbert noted that “Mr. Fieger has been involved with as many as thirty-eight cases filed with the [Michigan] Supreme Court.” Gilbert, 298 F.Supp.2d at 609. In his complaint, Fieger alleged that one of the Justices stated — during the 2000 Election Cycle — that “Geoffrey Fieger has $90 million in lawsuit awards pending in the State Court of Appeals.” Compl. at ¶ 11(f). Given his litigation history, it is reasonable to conclude that there is a significant, rather than a remote, possibility that Fieger’s present and future cases will someday reach the Michigan Supreme Court. Because it is, therefore, likely, rather than speculative, that Fieger will again face the recusal issue that he has
C. Challenge to the Justices’ Past Actions
In his brief on appeal, Fieger explains that “[t]he only relief which [he] sought, in the case at bar, was the entry of a declaratory judgment that the failure to provide a meaningful mechanism by which the impartiality of a member of the Michigan Supreme Court could be feasibly and realistically challenged was a denial of due process.” Pl.’s Br. at 15. It is unclear from his complaint, however, that Fieger so limits his § 1983 claim. Indeed, it is only in the section entitled “Prayer for Relief’ that the reader of the complaint is made aware that Fieger seeks to challenge the constitutionality of Michigan’s recusal rules. His complaint otherwise focuses on the past actions of the Justices, including the Justices’ past expression of “public, personal, political, and professional animus” toward Fieger, the Justices’ pursuit of disciplinary proceedings against Fieger in reprisal for Fieger’s exercise of his First Amendment rights, and the Justices’ refusal “to recuse themselves from making decisions concerning [Fieger].” Compl. at ¶ 12; J.A. at 10-12. The district court described Fieger’s complaint as being “devoid of any legal or factual claim that is independent of previous state court proceedings.” Dist. Ct. Op. at 13; J.A. at 29. Fieger, moreover, requests in his complaint a declaration that “the Defendants, and each of them, has violated the Constitutional Rights of the Plaintiff, as alleged.” Compl. at 7; J.A. at 13. The district court understandably construed such a request as a request for a declaration regarding the past actions of the Justices, including the Justices’ refusal to recuse themselves in past cases.
D. Challenge to Michigan’s Recusal Rule
The more difficult issue is whether the district court was correct in determining that Fieger’s constitutional challenge (both facial and as-applied) to Michigan’s recusal procedures was barred by Rooker-Feldman. Fieger challenges the district court’s decision, arguing that Rooker-Feldman is inapplicable to his claims. Among other things, Fieger stresses that he is asking the federal court to compel compliance with the Constitution in “the post-Gilbert litigation which poses the continuing conundrum, unresolved, and unresolveable, by the Michigan Supreme Court.” PL’s Br. at 16. He suggests, in other words, that his litigation is forward-looking, that it is independent of the two cases
The district court was not convinced by Fieger’s attempts to redefine the relief sought. Finding Fieger’s complaint devoid of any legal or factual claim independent of the previous state court proceedings, the court rejected Fieger’s argument regarding an independent claim, concluding that Rooker-Feldman barred all of Fieger’s claims, however couched, because — at the very least — they were inextricably intertwined with the final judgments of the Michigan Supreme Court.
The district court cited two cases in support of its decision: Howell v. Supreme Court of Texas, 885 F.2d 308 (5th Cir.1989), and Chafin v. West Virginia Supreme Court of Appeals, No. 3:98-0134, 1998 WL 1297605 (S.D.W.Va. Dec.18, 1998), aff'd, 203 F.3d 819 (4th Cir.1999). In Hoiuell, the Fifth Circuit considered whether the Rooker-Feldman doctrine barred a plaintiffs claim that a Texas Rule of Appellate Procedure, governing recusal and disqualification of judges, was unconstitutional on due process grounds. Before filing his constitutional challenge in federal court, Howell (a judge on the Texas Court of Appeals) had filed motions requesting that the justices of the Texas Supreme Court recuse themselves from hearing an appeal from an adverse jury verdict in a case that he, as the plaintiff, had brought in state court. When the justices refused, Howell filed a § 1983 action in federal court. The Fifth Circuit concluded that Howell’s constitutional claim was barred by Rooker-Feldman because it was inextricably intertwined with the state court’s judgment.
In Chafin, the plaintiff likewise challenged the constitutionality of the state’s recusal rules. Before filing suit in federal court, the plaintiff had unsuccessfully requested that certain state supreme court justices disqualify themselves from hearing his divorce appeal. While acknowledging that a ruling to the effect that West Virginia’s recusal rules were unconstitutional would not necessarily mean that the recusal decisions themselves were wrong, the federal district court nonetheless dismissed the claim, finding that the plaintiffs constitutional claim was inextricably intertwined with the state court decision. Such finding was based not only on the language of the plaintiffs complaint, the substance of which was limited to a core allegation that the state justices had violated his constitutional rights by not recusing themselves from the appeal of his divorce, but also on the obvious inability of the plaintiff to establish harm in the absence of decisions by the state court justices. The Fourth Circuit affirmed the district court’s decision on Rooker-Feldman grounds.
It is important to note that Howell and Chafin were both decided before the Supreme Court clarified the reach of Rooker-Feldman in Exxon Mobil. Indeed, given the lessons taught in Exxon Mobil and its progeny, the decisions in Howell and Chaf-in are not persuasive here.
In Feldman, the Supreme Court explained:
Challenges to the constitutionality of state bar rules ... do not necessarily require a United States District Court to review a final state court judgment in a judicial proceeding.... United States District Courts ... have subject matter jurisdiction over general challenges to state bar rules, promulgated by state courts in non-judicial proceedings, which do not require review of a final state court judgment in a particular case.
Feldman, 460 U.S. at 486, 103 S.Ct. 1303. In Exxon Mobil, the Court emphasized
In McCormick v. Braverman, this court addressed the question of “how to differentiate between a claim that attacks a state court judgment, which is within the scope of the Rooker-Feldman doctrine, and an independent claim, over which a district court may assert jurisdiction.” 451 F.3d at 393. In the words of the McCormick court:
The inquiry ... is the source of the injury the plaintiff alleges in the federal complaint. If the source of the injury is the state court decision, then the Rook-er-Feldman doctrine would prevent the district court from asserting jurisdiction. If there is some other source of injury, such as a third party’s actions, then the plaintiff asserts an independent claim.
Id.
To the extent that Fieger challenges the constitutionality of Michigan’s recusal rules by alleging that “[t]he threat that the Plaintiff cannot, and will not, receive a fair hearing before an impartial and independent tribunal is real, immediate, and continuing,” Rooker-Feldman does not bar his action. To that extent, the source of Fieger’s alleged injury is not the past state court judgments; it is the purported unconstitutionality of Michigan’s recusal rule as applied in future cases. Such a claim is independent of the past state court judgments. Thus, insofar as the district court dismissed Fieger’s challenge to the constitutionality of Michigan’s recusal rule pursuant to the Rooker-Feldman doctrine, the court’s judgment must be reversed.
V. CONCLUSION
For the reasons set forth above, the district court’s judgment of dismissal is AFFIRMED to the extent, if any, that Fieger challenges the Justices’ past recu-sal decisions. The district court’s judgment of dismissal is REVERSED to the extent Fieger challenges the constitutionality of Michigan’s recusal rule. The case shall be REMANDED to the district court for further proceedings consistent with this opinion.
. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
. The State Court Administrator, John D. Ferry, Jr., is a named defendant in Fieger’s lawsuit.
. A declaratory judgment is an inappropriate mechanism to address allegations of past harm. See AmSouth Bank v. Dale, 386 F.3d 763, 786 (6th Cir.2004) (explaining that "[t]he 'useful purpose' served by the declaratory judgment action is the clarification of legal duties for the future, rather than the past harm a coercive tort action is aimed at redressing”).
. Although Fieger was not a party in the state court cases, and while — generally—"[t]he Rooker-Feldman doctrine does not apply to bar a suit in federal court brought by a party that was not a party in the preceding action in state court,” United States v. Owens, 54 F.3d 271, 274 (6th Cir.1995) (citation omitted), Fieger (whether on behalf of his clients or on his own behalf) cannot seek in federal court to undo a state court judgment.
Concurrence Opinion
concurring.
I concur in the majority opinion, but write separately to more fully explicate Plaintiffs standing to challenge Michigan’s Recusal Rule. In my view, Plaintiff has established standing to sue both in his own right, and on behalf of his present and future clients.
Three elements comprise the “irreducible constitutional minimum” of standing: injury in fact, causation, and redressibility. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A plaintiff can establish injury in fact by showing that he suffered “an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.” Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130 (internal citations and quotations omitted). Where a plaintiff seeks declaratory judgment, he must demonstrate “a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969) (citations omitted).
Plaintiff contends that the Rule violates his own due process rights inasmuch as he
The significant possibility of future harm here is born of the Justices’ past construction and application of the Michigan Recusal Rule. See O’Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (“[P]ast wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury.”); see also City of Los Angeles v. Lyons, 461 U.S. 95, 107 n. 8, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (“It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiffs subjective apprehensions.”). The immediacy and reality of the threat of future harm flow from the fact that many of Plaintiffs cases have been appealed to the Michigan Supreme Court, and that notwithstanding the “acrimonious and well-publicized dialogue” between Plaintiff and the Justices, the Justices have declined to recuse themselves from consideration of those appeals. Additionally, Plaintiff continues to represent clients before Michigan’s tribunals, and to undertake representation of new clients. Cf. Zwickler, 394 U.S. at 109, 89 S.Ct. 956 (finding no controversy of “sufficient immediacy and reality” in a challenge to a law criminalizing distribution of anonymous handbills given the low likelihood that the targeted “Congressman would again be a candidate” for office). The State of Michigan itself has licensed Plaintiff in this regard, and he engages in the endeavor of legal representation as a profession. He therefore demonstrates a “realistic threat” of being subject to a forum in which he asserts the Rule should apply. Thus, Plaintiff asserts a cognizable injury for purposes of standing.
A causal connection must also exist “between the assertedly unlawful conduct and the alleged injury.” Allen v. Wright, 468 U.S. 737, 753 n. 19, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). That is, the injury must “be fairly traceable to the challenged action.” Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130 (citations omitted); Friends of the Earth v. Laidlaw, 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); see also Allen, 468 U.S. at 751, 104 S.Ct. 3315. Plaintiff asserts that the Michigan Recusal Rule either applies to the Michigan Supreme Court, or violates his due process rights both facially and as-applied. The injuries alleged to Plaintiffs economic and professional interests flow directly from the Rule inasmuch as the Justices interpret the Rule to apply only to Michigan’s lower courts and court of appeals. See Fieger v. Ferry, No. 04-60089, Slip Op. at 3 (E.D.Mich. Jan. 13, 2005) (noting that “recent practice of the Michigan Supreme Court indicates that, al
Further, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130 (citations omitted); see also Allen, 468 U.S. at 751, 104 S.Ct. 3315. Here, the Court looks to “the causal connection between the alleged injury and the judicial relief requested.” Allen, 468 U.S. at 753 n. 19, 104 S.Ct. 3315. A favorable decision in this case would redress the injury advanced. On remand, the district court is capable of providing relief sufficient to redress the injury Plaintiff asserts. Should the district court determine, after consideration on the merits, that such relief is warranted, declaratory judgment would redress Plaintiffs alleged injuries either by requiring the Justices to follow the Michigan Recusal Rule as written, or by effectively requiring amendments to that Rule.
Additionally, Plaintiff asserts his present and future clients’ due process rights to a “fair hearing before an impartial and independent tribunal.” Plaintiff maintains his clients will likely suffer injury absent some procedure for reviewing the Justices’ recu-sal decisions in future cases on appeal from his lower court victories and losses. (Compl. at ¶ 19; J.A. at 13) To secure adjudication on the merits of his clients’ rights, Plaintiff must first overcome the Supreme Court’s prudential limitation on third party standing.
As a general matter, a plaintiff “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (citations omitted). However, the Supreme Court has delineated exceptions to its prudential limitation on third party standing, and has allowed plaintiffs to assert the rights of a third party “[wjhere practical obstacles prevent a party from asserting rights on behalf of itself.” Sec’y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). To fit within this exception, a plaintiff must show three elements: first, injury in fact; second, a close relationship with the third party whose rights he asserts; and third, that the third party has no forum to protect its own interests. Id.; Kowalski v. Tesmer, 543 U.S. 125, 130, 125 S.Ct. 564,
On at least four occasions, the'Supreme Court has considered the propriety of permitting lawyers to assert the constitutional rights of their clients. Two times, the lawyers met the strictures of prudential standing and the Court proceeded to consideration on the merits. See Caplin & Drysdale, 491 U.S. at 623 n. 3, 109 S.Ct. 2646; Triplett, 494 U.S. at 721, 110 S.Ct. 1428. In Caplin & Drysdale, the limitation on third party standing did not prevent the litigant law firm from asserting its client’s Sixth Amendment Right to Counsel in a challenge to the asset forfeiture provision of the continuing criminal enterprise statute. Caplin & Drysdale, 491 U.S. at 623 n. 3, 109 S.Ct. 2646. The Court found third party standing appropriate even though it concluded the criminal defendant faced no significant hurdles in personally asserting the right. Id. In the Court’s view, the law firm properly relied on its client’s constitutional rights because “[t]he attorney-client relationship ... is one of special consequence,” and the challenged provision “may ‘materially impair the ability of third persons in [the client’s] position to exercise their constitutional rights.” Id.
In Triplett, the Supreme Court found an attorney had third party standing to advance his clients’ Fifth Amendment - due process rights to legal representation in a challenge to the Black Lung Benefits Act, which limited attorneys’ fees to those approved by the Department of Labor. Triplett, 494 U.S. at 720-21, 110 S.Ct. 1428. The lawyer there agreed to represent black lung claimants for a contingent fee. Id. at 718, 110 S.Ct. 1428. As a result, a committee of the state bar recommended sanctions against him and filed a complaint to enforce them. Id. The state’s highest court denied enforcement, finding the Act violated due process in “ ‘effectively denfying] claimants necessary access to counsel.’ ” Id. at 718-19, 110 S.Ct. 1428.
In defense to the disciplinary charges, the lawyer in Triplett challenged the fee scheme set forth in the Act, alleging it violated his clients’ interests. Id. at 720, 110 S.Ct. 1428. Finding third party standing appropriate, the Court noted that “enforcement of [the] restriction against the litigant prevents a third party from entering into a relationship with the litigant (typically a contractual relationship), to which relationship the third party has a legal entitlement (typically a constitutional entitlement).” Id. Additionally, the Court observed that the due process rights of existing claimants were at issue since, in the same action, the government sought to recover fees improperly paid. Id. at 721, 110 S.Ct. 1428.
On two occasions, the Supreme Court denied third party standing to lawyers pressing their clients’ rights. See Gabbert, 526 U.S. at 292-93, 119 S.Ct. 1292; Tesmer, 543 U.S. at 134, 125 S.Ct. 564. In Gabbert, the Court declined third party standing for a lawyer to assert his client’s purported right to have counsel present during her grand jury testimony. Gabbert, 526 U.S. at 292, 119 S.Ct. 1292. There, the client could ostensibly have brought a § 1983 claim in her own right. Most recently, in Kowalski v. Tesmer, two attorneys challenged a law prohibiting the appointment of appellate counsel to represent indigents who pled guilty. Tesmer, 543 U.S. at 127, 125 S.Ct. 564. The Tes-mer court concluded that the attorneys’ relationship with “as yet unascertained Michigan criminal defendants” was not sufficiently close, characterizing it as a
In my view, Plaintiffs challenge on behalf of his clients fits neatly within the exceptions established in the Court’s third party standing jurisprudence. First, as previously discussed, Plaintiff alleges adequate injury in fact. He “can be expected satisfactorily to frame the issues” here, see Joseph H. Munson Co., Inc., 467 U.S. at 958, 104 S.Ct. 2839, because of his personal stake in the matter. Second, Plaintiff has established a close relationship with his current and future clients.
An attorney’s relationship with his clients is undeniably a close one, and the Supreme Court has recognized the “special consequence” of that relationship. Caplin & Drysdale, 491 U.S. at 623 n. 3, 109 S.Ct. 2646; see also Triplett, 494 U.S. at 721, 110 S.Ct. 1428; but see Gabbert, 526 U.S. at 292-93, 119 S.Ct. 1292; Tesmer, 543 U.S. at 131-32, 125 S.Ct. 564. Here, Plaintiff asserts the rights of both existing and future clients. At the trial level, Plaintiff currently represents clients whose cases may progress to the highest state level of appeal, and he continues to undertake new representation. Plaintiffs current clients form an ascertainable class, and any and all individuals who retain him share the same interests as that class. In Triplett, the lawyer had standing to broadly challenge the Black Lung Benefits Act due to his relationship with certain existing clients. See Triplett, 494 U.S. at 721, 110 S.Ct. 1428. There, the lawyer predicated his challenge on rights not actually violated but capable of violation with respect to future clients, since his existing clients already had the benefit of his representation. Id. at 718, 110 S.Ct. 1428. Similarly, Plaintiffs relationship with current clients suffices to support his broad-based challenge to the Michigan Recusal Rule, a challenge designed to protect the rights and interests of future clients.
What is more, the Michigan Recusal Rule provides for disqualification where a “judge is personally biased ... against a party or attorney. ” MCR 2.003(B)(1) (emphasis added). That Rule further establishes a procedure for de novo review of recusal motions following a denial. MCR 2.003(C). As interpreted by the Justices, application of the Michigan Recusal Rule against Plaintiff could impair his current and future clients’ access to the type of fair and impartial tribunal secured under the Due Process Clause. See Triplett, 494 U.S. at 720, 110 S.Ct. 1428.
Additionally, courts have more readily found a sufficiently close relationship where the plaintiff and the third parties share a “congruence of interests.” Powers, 499 U.S. at 414, 111 S.Ct. 1364. In this case, “[t]he activity sought to be protected is at the heart of the business relationship between [Plaintiff] and [his] clients,” see Joseph H. Munson Co., Inc., 467 U.S. at 958, 104 S.Ct. 2839, who contract for Plaintiffs services and expect to receive adequate and meaningful representation. To be sure, Plaintiffs present and future clients seek and retain legal counsel to bolster their chances of prevailing at
Third, and most critically in this case, Plaintiffs clients have no viable avenue to personally challenge the constitutionality of the Michigan Recusal Rule. See Baird, 405 U.S. at 446, 92 S.Ct. 1029 (permitting physician to assert the rights of his patients to access contraceptives because they “are not themselves subject to prosecution and, to that extent, are denied a forum in which to assert their own rights”); see also Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953) (citing Pierce v. Soc’y of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925)). This is simply not a case where Plaintiff or his clients failed to utilize an alternate route to have their due process rights adjudicated. Although Plaintiffs clients could hypothetically challenge Michigan’s Recusal Rule in the first instance, they would lack standing to do so because they could not “demonstrate ... a significant possibility of future harm.” See Peoples Rights Org., Inc., 152 F.3d at 527. Nor could they prove actual present harm, until their cause — in effect — would be barred by the preclusive effects of collateral estoppel or the Younger doctrine. See Gilbert v. Ferry, 413 F.3d 578, 579, reh’g and vacating in part, 401 F.3d 411 (6th Cir.2005). Moreover, “normal processes of appellate review” provide no alternative. Cf. Cohn v. Brown, 161 Fed.Appx. 450, 455 (6th Cir.2005) (eschewing attorney’s challenge to the court’s method of calculating fees in bankruptcy proceedings when he could have directly appealed). Further, unlike the litigants in Tesmer, Plaintiff brought this § 1983 suit not because he “wanted a federal court to short-circuit the State’s adjudication of this constitutional question,” see 543 U.S. at 132-33, 125 S.Ct. 564, but because he wanted the question to be adjudicated at all. Plaintiffs cause falls squarely within the well-defined exception to the prudential limitation on third party standing.
. The district court on remand will consider the merits of Plaintiff’s twin due process challenges and this discussion of Plaintiff’s standing should in no way be construed as commentary on the merits of Plaintiff's claims. See, e.g., Dep't of Labor v. Triplett, 494 U.S. 715, 721, 726, 110 S.Ct. 1428, 108 L.Ed.2d 701 (1990) (finding third party standing to assert clients' due process rights, but later concluding there was no violation); Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n. 3, 632-33, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989) (prudential limitation on third party standing not applicable, but Sixth Amendment claim fails on the merits). Most appropriately framed, the standing inquiry looks only to the existence of a case or controversy sufficient to insure the parties properly frame the issues and vigorously advocate their views.
. To be clear, by concluding that Plaintiff has standing to assert the due process rights of his clients, I do not advocate a more expansive view that lawyers should in all cases be permitted to "bring in court the claims of future unascertained clients.” Tesmer, 543 U.S. at 134, 125 S.Ct. 564 (quoting Tesmer v. Granholm, 333 F.3d 683, 709 (6th Cir.2003) (Rogers, J., dissenting in part), rev'd sub nom. Kowalski v. Tesmer, 543 U.S. 125, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004)). Narrowly confined to Plaintiffs unique circumstance, I would permit third party standing in this case because the challenged Rule potentially impacts the due process rights of an ascertainable class comprised of current clients, and correspondingly any and all clients that retain Plaintiff.
