WILLIE D. GILBERT, II v. THE NORTH CAROLINA STATE BAR
No. 41PA07
IN THE SUPREME COURT
20 March 2009
[363 N.C. 70 (2009)]
like the victim in Smith, Mrs. Bennick was needlessly murdered, only for the sake of defendant‘s desire for material possessions.
Finally, this Court has concluded that both the (e)(5) and the (e)(9) aggravators standing alone are sufficient to sustain a death sentence. See Watts, 357 N.C. at 381, 584 S.E.2d at 751 (citations omitted). Here, the jury found both the (e)(5) and (e)(9) aggravators. Defendant‘s sentence is not excessive or disproportionate.
CONCLUSION
Defendant has made other assignments of error, but has not provided any argument or supporting authority for these assignments in his brief. Consequently, we consider those assignments of error abandoned, and they are dismissed. See
For the foregoing reasons, we conclude defendant received a fair trial and sentencing proceeding, and we find no error in his convictions or his sentences. Moreover, we conclude that defendant‘s sentence of death is not disproportionate and should remain undisturbed.
NO ERROR; MOTION FOR APPROPRIATE RELIEF DENIED.
WILLIE D. GILBERT, II v. THE NORTH CAROLINA STATE BAR
No. 41PA07
(Filed 20 March 2009)
1. Appeal and Error— appealability—prosecution of attorney enjoined—protection of bar and public—substantial right
An immediate appeal could be taken from an injunction prohibiting disciplinary prosecution of an attorney before the Disciplinary Hearing Commission, despite its interlocutory nature, where it affected the State Bar‘s substantial right to carry out its duties to protect the bar and the public.
2. Malicious Prosecution— notice—vindictive prosecution in civil case—reviewed as malicious prosecution
Plaintiff‘s complaint under
3. Jurisdiction— subject matter—42 U.S.C. § 1983—pleading defect
Defendant‘s argument that the superior court lacked subject matter jurisdiction to hear plaintiff‘s
4. Civil Rights— due process—repeated disciplinary hearings by State Bar
Plaintiff did not allege a due process violation for which relief might be granted under
Justice TIMMONS-GOODSON dissenting.
Justice HUDSON dissenting.
On discretionary review pursuant to
North Carolina State Bar, by Katherine E. Jean, Counsel, and David R. Johnson and A. Root Edmonson, Deputy Counsel, for defendant-appellant.
EDMUNDS, Justice.
In this case, plaintiff Willie Gilbert, a licensed attorney, alleges that defendant North Carolina State Bar acted vindictively when it filed sequential actions against him. The questions before this Court are whether plaintiff‘s complaint properly presents a claim under
Between February 2000 and September 2003, defendant filed three complaints against plaintiff. Two were administrative actions (Gilbert I and Gilbert III) that were brought before defendant‘s Disciplinary Hearing Commission (DHC), while the third was a civil action (Gilbert II) brought in District Court, Wake County, to recover money paid to one of plaintiff‘s clients by defendant‘s Client Security Fund (CSF). Defendant filed Gilbert I on 15 February 2000, alleging that plaintiff violated numerous provisions of the Revised Rules of Professional Conduct (RRPC) during his representation of three clients between 1997 and 1999. After a four-day hearing held on 17-18 July 2000 and 18-19 September 2000, the DHC entered an Order of Discipline concluding that plaintiff had violated Rules 1.5, 1.7,
Defendant filed Gilbert II on or about 18 April 2002, seeking reimbursement on behalf of the CSF for $4,627.43 that had been paid by the CSF to one of plaintiff‘s clients. Following a bench trial held on 7-8 January 2004, the trial court awarded defendant the double damages allowed by
Defendant filed Gilbert III on 12 September 2003, alleging that plaintiff misappropriated funds from his trust account and failed to pay client funds promptly to third parties. The transactions at issue identified by defendant in its Gilbert III complaint occurred in April 1998.
While Gilbert III was pending before the DHC, plaintiff filed the instant action in Superior Court, Wilson County, alleging, in part, that defendant was vindictively prosecuting the Gilbert III administrative action. Specifically, plaintiff alleged violations of both his substantive and his procedural due process rights. Plaintiff further alleged that the conduct at issue in Gilbert III was known or should have been known to defendant before Gilbert I was heard by the DHC. Plaintiff sought injunctive and monetary relief under
On 9 April 2004, the trial court granted plaintiff an ex parte temporary restraining order, enjoining defendant from proceeding with further prosecution of Gilbert III. At the subsequent hearing on plaintiff‘s motion for preliminary injunction, defendant argued that the trial court did not have jurisdiction to enjoin a disciplinary action that was pending before the DHC.1 Plaintiff responded that the DHC is not
authorized to rule on the constitutional questions he raised and that superior court is an appropriate forum in which to bring a claim under
Defendant moved to dismiss the complaint on 3 August 2004, and plaintiff moved for summary judgment on 13 October 2004. The trial court treated defendant‘s motion as one for summary judgment and, after hearing argument, expressed its concern.
THE COURT: . . . . [I]t smacks—to me, it smacks in the face of fairness when you have a man that you take a period of time, you go in and you find three people, you prosecute him on those three, and there
were six people there at the same time, and instead of prosecuting him on six and doing whatever you want to do to him, you choose to do three of them, have a time of suspension to run, and then come back when that time of suspension runs and says, oh, yes, I got three more that I didn‘t prosecute you on so I want to now prosecute you on those matters. And that, right or wrong, in my mind is where I have the problem, because—and that‘s why I used the terms that the State Bar knew or should have known, having done the investigation of the trust account, that those violations were there.
The trial court entered an order on 12 September 2005 granting plaintiff‘s motion for partial summary judgment on the issue of liability for violation of his
Defendant appealed. The Court of Appeals concluded that defendant had appealed from an interlocutory order not affecting a substantial right and dismissed defendant‘s appeal. Gilbert v. N.C. State Bar, 180 N.C. App. 690, 639 S.E.2d 143 (2006), 2006 N.C. App. LEXIS 2574 (2006) (unpublished). This Court allowed defendant‘s petition for discretionary review as to two issues: (1) whether the Court of Appeals erred by dismissing defendant‘s appeal as interlocutory, and (2) whether the superior court had jurisdiction to enjoin permanently defendant‘s prosecution of plaintiff in an administrative disciplinary proceeding before the DHC.
[1] We begin with defendant‘s first issue. Defendant acknowledged in its brief to the Court of Appeals that the trial court‘s order “may be considered interlocutory,” and the Court of Appeals so held. Gilbert, 180 N.C. App. 690, 639 S.E.2d 143, 2006 N.C. App. LEXIS 2467, at *7. Defendant argues that the order nevertheless may be appealed immediately because it affects a substantial right. See
A substantial right is “a legal right affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which [one] is entitled to have preserved and protected by law: a material right.” Oestreicher v. Am. Nat‘l Stores, Inc., 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976) (citation and internal quotation marks omitted). We consider whether a right is substantial on a case-by-case basis. “It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered.” Waters v. Qualified Pers., Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978).
Plaintiff argues that this interlocutory appeal does not affect a substantial right. The Court of Appeals agreed with plaintiff, citing precedent from that court for the proposition that an order of a trial court allowing a party‘s motion for summary judgment as to liability while retaining jurisdiction over the issue of damages, does not affect a substantial right. Gilbert, 180 N.C. App. 690, 639 S.E.2d 143, 2006 N.C. App. LEXIS 2467, at *8. In so doing, the Court of Appeals reasoned that “the most [defendant] will suffer from being denied an immediate appeal is a trial on the issue of damages.” Id. (internal quotation marks and citation omitted).
Although we express no opinion as to the merits of defendant‘s Gilbert III complaint, we note that the trial court order from which defendant appeals includes a permanent injunction enjoining defendant from prosecuting Gilbert III. Ordinarily, “[a] permanent or perpetual injunction issues as a final judgment which settles the rights of the parties, after the determination of all issues raised.” Union Carbide Corp. v. Davis, 253 N.C. 324, 328, 116 S.E.2d 792, 794-95 (1960) (quoting Galloway v. Stone, 208 N.C. 739, 740, 182 S.E. 333, 333 (1935)); Tomlinson v. Cranor, 209 N.C. 688, 692, 184 S.E. 554, 556-57 (1936) (holding that the trial court erred in issuing a permanent injunction, which was a final judgment, because issues of material fact should have been determined by the jury). Thus, the permanent injunction issued by the trial court in this case is a remedy that forever
We conclude that defendant‘s right to investigate and prosecute allegations of attorney misconduct is substantial. The State Bar is an agency of the State of North Carolina.
The Legislature, in its wisdom, has provided for the incorporation of the State Bar. It has vested in the Council of that Bar, which you are, the authority and the power to administer the act. It may interest you to know that the Legislature has repealed all of the statutes relating to disbarment in the State, and has vested in you the responsibility of making rules and regulations, and administering those rules and regulations relating to the admission and to the discipline and to the disbarment of members of the Bar of this State.
Edwin C. Bryson, The North Carolina State Bar, 1933-1950, 30 N.C. St. Bar Q. 8, 12 (1983); see also Baker v. Varser, 240 N.C. 260, 267, 82 S.E.2d 90, 95-96 (1954) (The General Assembly created the State Bar “to enable the bar to render more effective service in improving the administration of justice, particularly in dealing with the problem of . . . discipl[in]ing and disbarring attorneys at law.“). Thus, the power of the bar to police itself is both a privilege and a responsibility.
Defendant‘s action in conducting this, or any other investigation, is undertaken pursuant to statute for the benefit of both the legal pro- fession and the citizens of North Carolina. When defendant is prevented from carrying out these duties, the bar as well as the public may be at risk. Accordingly, we conclude that defendant‘s right to carry out these statutory duties is substantial.
Next, we must determine whether defendant‘s substantial right may be lost or prejudiced if the interlocutory order is not considered on appeal. Goldston v. Am. Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (“[T]he deprivation of that substantial right must potentially work injury to [defendant] if not corrected before appeal from final judgment.“). The mere fact that a defendant has been enjoined does not constitute such an injury. However, because the trial court‘s permanent injunction may prevent defendant from executing its statutory duties while plaintiff pursues an improperly pleaded action, an injury arises. See, e.g., Freeland v. Greene, 33 N.C. App. 537, 540, 235 S.E.2d 852, 854 (1977) (“The continuance of the injunction in effect and the denial of the motion to dismiss in this case do adversely affect important rights of [defendant North Carolina Board of Transportation] in connection with the performance by [it] of duties imposed by [statute]. We therefore consider this appeal.“). In addition, execution of the bar‘s responsibility to protect the public requires that the bar have the ability timely to respond to allegations of wrongdoing and timely to act where those allegations prove true. As this case illustrates, a trial and subsequent appeal can consume years, leaving the public vulnerable. Accordingly, we conclude that defendant suffers the risk of injury if this interlocutory order is not considered. This interlocutory appeal is not barred.
[2] We now consider defendant‘s second issue. Plaintiff alleges that defendant prosecuted Gilbert III vindictively, as punishment both for his zealous defense of Gilbert I and II and for exercising his right to appeal the final judgments entered in those actions. Plaintiff further alleges that defendant‘s vindictive prosecution of Gilbert III, an administrative proceeding, gives rise to an independent cause of action under
United States has considered two issues: (1) It has limited the ability of a judge to impose a more lengthy sentence upon a defendant who successfully appealed, North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656 (1969), and (2) it has held that, in a two-tier prosecutorial system such as we have in North Carolina, a prosecutor may not substitute a more serious charge when a defendant seeks a trial de novo on appeal from a lesser charge, Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628 (1974). Subsequent decisions of the United States Supreme Court have declined to expand the holdings of Pearce and Blackledge.4 The Supreme Court of the United States has never applied the theory of vindictive prosecution to a civil action or an administrative proceeding.
We find no contrary cases in North Carolina. As a result, because the theory of vindictive prosecution is limited to criminal cases, we conclude that plaintiff proceeded on an inapplicable theory and that plaintiff‘s complaint could be dismissed on this ground alone. Nevertheless, North Carolina is a notice pleading state, the import of plaintiff‘s complaint is unmistakable, and defendant responded as if plaintiff had pleaded a recognized cause of action, such as malicious prosecution. Malicious prosecution is a theory applicable to criminal, civil, and administrative proceedings that have been instituted with malice and without probable cause. See, e.g., Carver v. Lykes, 262 N.C. 345, 352, 137 S.E.2d 139, 145 (1964) (“[O]ne who instigates or procures investigatory proceedings against another before an administrative board which has the power to suspend or revoke that other‘s license to do business or practice his profession, is liable for the resulting damage if (1) the proceeding was instituted maliciously; (2) without probable cause; and (3) has terminated in favor of the person against whom it was initiated.“). It is designed to discourage and remedy the type of prosecutorial misconduct alleged by plaintiff
[3] At the outset, we note that defendant argues that, because Gilbert III was still pending before the DHC when plaintiff filed his superior court action, the superior court lacked subject matter jurisdiction to hear plaintiff‘s
[4] When Congress enacted
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
No definitive test exists for determining whether conduct that establishes the common-law tort of malicious prosecution also violates a federal constitutional right. See generally 1 Steven H. Steinglass, Section 1983 Litigation in State Courts § 3:2, at 3-3 (2001) (noting that “[m]any of the most difficult questions confronting courts and litigants in
circuits agree that a plaintiff must show that the alleged malicious prosecution infringes a constitutional right in order to invoke
Plaintiff‘s malicious prosecution claim is based upon allegations in his complaint that defendant violated both plaintiff‘s substantive due process rights and his procedural due process rights. As to plaintiff‘s substantive due process claim, in Albright v. Oliver, a plurality of Justices of the United States Supreme Court observed that “[t]he protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.” 510 U.S. at 272, 127 L. Ed. 2d at 122. Accordingly, the Court held that the plaintiff failed to state a
Turning to plaintiff‘s procedural due process claim, we observe that, with few exceptions, United States circuit courts have considered the question of whether malicious prosecution infringes on a party‘s procedural due process rights only in criminal cases, and then only in dicta. See, e.g., Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004); Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001). We have found no holding that malicious initiation of a civil administrative proceeding, by itself, inflicts an injury giving rise to a constitutional tort. However, the Second and Tenth Circuit Courts of Appeals have each published one opinion reviewing a
In Washington v. County of Rockland, the United States Court of Appeals for the Second Circuit considered the plaintiff correction officers’ claims that a county sheriff maliciously filed unjustified disciplinary charges against them in a civil administrative proceeding: 373 F.3d 310, 313 (2d Cir. 2004). Citing Albright v. Oliver, the Court held that a
In Becker v. Kroll, the United States Court of Appeals for the Tenth Circuit considered a plaintiff medical doctor‘s claim that Utah‘s Medicaid Fraud Control Unit maliciously filed unjustified civil and criminal charges against her. 494 F.3d 904, 909 (10th Cir. 2007). Construing the plaintiff‘s complaint liberally, the Court acknowledged that the plaintiff alleged “some injuries resulting from the filing of criminal charges against her that are outside the scope of the
In light of Albright v. Oliver and the apparent uncertainty among United States circuit courts over the extent to which
Even if this Court accepts plaintiff‘s argument that defendant‘s allegedly malicious prosecution of Gilbert III affects a constitutionally protected “life, liberty, or property interest,” plaintiff must clear the higher hurdle of showing deprivation of his constitutional rights without due process of law. “Nothing in [the Fourteenth] Amendment protects against all deprivations of life, liberty, or property by the State“; rather, “[t]he Fourteenth Amendment protects only against deprivations ‘without due process of law.’ ” Parratt, 451 U.S. at 537, 68 L. Ed. 2d at 430 (citation omitted). When a plaintiff is deprived of a constitutionally protected interest by the unauthorized, tortious conduct of a state actor, statutory and common-law postdeprivation remedies can provide the process that is due. Id. at 541-44, 68 L. Ed. 2d at 432-34 (stating and applying the rule to a plaintiff‘s
The United States Supreme Court considers the existence of common-law tort actions, postdeprivation hearings, and other “pro- cedural safeguards built into the statutory or administrative procedure of effecting the deprivation,” when evaluating the adequacy of a State‘s postdeprivation remedies. Zinermon, 494 U.S. at 126, 108 L. Ed. 2d at 114. A plaintiff who has access to an adequate postdeprivation remedy does not sustain a constitutional injury under the Due Process Clause of the
Malicious prosecution of an administrative action is a common-law tort in North Carolina. Carver, 262 N.C. at 351-52, 137 S.E.2d at 145 (stating the elements of the tort). Availability of a common-law tort action, standing alone, is an adequate postdeprivation remedy, even when successful litigation of the tort does not result in all the relief to which a plaintiff would be entitled under
This holding does not mean that plaintiff cannot pursue a properly pleaded
For the reasons stated above, the dismissal entered by the Court of Appeals is vacated. However, while the DHC and the Superior Court of North Carolina have concurrent jurisdiction over attorney discipline matters, N.C. State Bar v. Randolph, 325 N.C. 699, 701, 386 S.E.2d 185, 186 (1989) (per curiam), the superior court division has original subject matter jurisdiction over constitutional claims,
VACATED AND REMANDED.
Justice TIMMONS-GOODSON, dissenting.
Because I conclude that plaintiff has sufficiently alleged a
At the outset, I note that the only two questions presented by defendant‘s petition for discretionary review and allowed by the Court read as follows:
1. Did the Court of Appeals err in dismissing the State Bar‘s appeal of the injunction of Wilson County Superior Court as interlocutory?
2. Did the Superior Court of Wilson County have jurisdiction to permanently enjoin the State Bar‘s prosecution of an attorney disciplinary proceeding before the Disciplinary Hearing Commission?
The majority answers the question regarding the interlocutory nature of the appeal in the affirmative and explains that, while interlocutory, the appeal affects a substantial right that will be irreversibly injured or lost if not immediately appealed. The majority answers the question regarding the superior court‘s subject matter jurisdiction affirmatively. Thus, the inquiry should end.
However, the majority proceeds to discuss the failure of plaintiff to state a claim. That discussion is not necessary to answer the question regarding jurisdiction presented by the petition for discretionary review. Indeed, the majority has improperly expanded the scope of this appeal and ruled on a constitutional question in advance of the necessity of deciding it. In doing so, the majority fails to exercise the judicial restraint that we have so often proclaimed. At the heart of the majority‘s decision to reach the question is the concern that a ruling allowing plaintiff to pursue in the courts his
Interlocutory Appeal
The majority concludes that defendant‘s interlocutory appeal implicates defendant‘s substantial right to execute its statutory duties, and that this right may be lost or prejudiced if appeal is not immediately taken. I disagree. To be sure, defendant has statutory duties to promulgate and enforce the rules of professional conduct, duties of significant importance to the protection of the public and the legal profession.
In the instant case, defendant generated the complaint on 12 September 2003, despite having access to all of the underlying information at least three years earlier. Although defendant had all the requisite information available to it prior to the institution of Gilbert I, defendant chose to proceed against plaintiff in piecemeal fashion, such that the instant proceeding is the seventh one to be litigated in various forums across the state. Thus, I find unpersuasive defendant‘s argument that immediate review of the trial court‘s interlocutory order is necessary in order to prevent the delayed prosecution of Gilbert III.
Moreover, defendant has failed to show that the delayed prosecution of Gilbert III pending the trial court‘s resolution of the instant case could result in irreversible injury or loss of its substantial right absent immediate review. Goldston v. Am. Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). Indeed, defendant cannot make such a showing. As defendant‘s own delay in filing the complaint in Gilbert III for approximately three years indicates, defendant is unlikely to suffer a loss or irreversible injury merely due to the passage of time.
While conceding that an injunction is not an irreversible injury, the majority concludes that, because plaintiff has failed to properly plead his
Subject Matter Jurisdiction
The only substantive issue for which we allowed discretionary review in this case was whether the superior court had subject matter jurisdiction to hear plaintiff‘s
On review of a motion to dismiss for failure to state a claim under Rule 12(b)(6), we examine “whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. In ruling upon such a motion, the complaint is to be liberally construed, and the trial court should not dismiss the complaint unless it appears beyond doubt that [the] plaintiff could prove no set of facts in support of his claim which would entitle him to relief.” Shepard v. Ocwen Fed. Bank, 361 N.C. 137, 139, 638 S.E.2d 197, 199 (2006) (quoting Meyer v. Walls, 347 N.C. 97, 111-12, 489 S.E.2d 880, 888 (1997) (alteration in original)).
To state a claim for relief under
The majority incorrectly concludes that substantive due process does not protect individuals from vindictive prosecutions of administrative matters. Neither the Supreme Court of the United States nor any other federal court has issued such a holding. To the contrary, federal courts have applied the doctrine to administrative and regulatory proceedings. See, e.g., Nat‘l Eng‘g & Contr‘g Co. v. Herman, 181 F.3d 715, 722-23 (6th Cir.) (stating the elements of vindictive prosecution, which petitioner asserted as a defense to administrative proceedings by the Occupational Safety and Health Review Commission for violations of OSHA regulations), cert. denied, 528 U.S. 1045, 145 L. Ed. 2d 481 (1999); Futernick v. Sumpter Twp., 78 F.3d 1051, 1056 n.7 (6th Cir.) (describing the elements of vindictive prosecution in the context of a regulatory proceeding), cert. denied, 519 U.S. 928, 136 L. Ed. 2d 215 (1996), overruled on other grounds by, Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 145 L. Ed. 2d 1060, 1063 (2000) (per curiam); United States v. One 1985 Mercedes, 917 F.2d 415, 420 (9th Cir.) (stating that vindictive prosecution claims may raise due process and equal protection issues in civil forfeiture cases).
Indeed, this Court would be the first high court in the nation to conclude that the rule against vindictive prosecution does not apply to administrative proceedings. The only limitation that the Supreme Court of the United States has placed upon the doctrine has been the refusal to apply a presumption of vindictiveness in all cases. See, e.g., Alabama v. Smith, 490 U.S. 794, 799, 104 L. Ed. 2d 865, 872 (1989); Goodwin, 457 U.S. at 384, 73 L. Ed. 2d at 87. Even in such cases, however, the proponent may establish actual vindictiveness through objective evidence. Goodwin, 457 U.S. at 384, 73 L. Ed. 2d at 87.
The import of the rule against vindictive prosecution is that the State may not punish an individual for the exercise of his statutory or constitutional rights. Thus, the central question in determining whether the rule applies to this case is whether attorney disbarment is punishment in the constitutional sense. The answer to this question is well-established in Supreme Court precedent: “[d]isbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer.” In re Ruffalo, 390 U.S. 544, 550, 20 L. Ed. 2d 117, 122 (1968) (citations omitted). Consequently, attorneys in such proceedings are entitled to certain constitutional protections. See, e.g., id., 390 U.S. at 550, 20 L. Ed. 2d at 122 (holding that attorney disbarment proceedings are quasi-criminal and that attorneys
Turning to the pleadings in the instant case, plaintiff‘s alleges, inter alia, the following:
By attempting through Gilbert III to secure a disciplinary sanction . . . and by doing so in apparent bad faith and as part of a continuing effort to menace and intimidate the Plaintiff, and to exact a price for the Plaintiff‘s having exercised his statutory and constitutional rights to defend himself zealously against, and to seek appellate review . . . the State Bar has engaged, and is con-
tinuing to engage, in a vindictive prosecution of the Plaintiff in violation of the United States and North Carolina constitutions.
. . . .
By attempting through Gilbert III to secure a disciplinary sanction . . . and by doing so on the basis of intentional misrepresentations of fact, in apparent bad faith, and as part of a continuing effort to menace and intimidate the Plaintiff, and to exact a price for the Plaintiff‘s having exercised his statutory and constitutional rights to defend himself zealously against, and to seek appellate review . . . the State Bar has deprived the Plaintiff of his right to substantive due process.
In support of these assertions, plaintiff alleges that defendant knowingly made false allegations in the underlying grievance in Gilbert III and notified plaintiff‘s attorney of its intent to deal with plaintiff in such a way as to discourage other attorneys from similarly obtaining writs of supersedeas. Plaintiff also alleges that Gilbert III is the latest in a series of “sharp practices” against plaintiff that include the following: (1) circumventing the procedures for instituting attorney disciplinary hearings; (2) deterring an attorney witness from testifying for plaintiff in Gilbert I by filing a grievance and issuing a subpoena for that attorney‘s trust account records days before the hearing; (3) attempting to impeach another defense witness in Gilbert I by suggesting that the witness was convicted of crimes, which defendant knew to be untrue; (4) knowingly making material misrepresentations of fact to this Court in oral arguments in Gilbert I; and (5) filing a grievance in Gilbert III that contained knowing misrepresentations of fact.
Treating the allegations in plaintiff‘s complaint as true, as is required on review of a motion to dismiss under Rule 12(b)(6), plaintiff‘s complaint sufficiently alleges a deprivation of substantive due process. Plaintiff clearly had statutory rights to seek appellate review and obtain writs of prohibition from the DHC‘s disciplinary order in Gilbert I.7 Plaintiff alleges that defendant instituted Gilbert III to punish him for having exercised these statutory rights in a prior disciplinary proceeding. The law is well-established that the State may
not prosecute an individual for exercising his statutory or constitutional rights to appeal or seek collateral relief. Goodwin, 457 U.S. at 372, 73 L. Ed. 2d at 80. Such conduct by the State would amount to a deprivation of substantive due process. Id. Plaintiff has adequately alleged a claim for relief under
Having abandoned judicial restraint, the majority not only expands the scope of this appeal but also incorrectly analyzes plaintiff‘s complaint as one for malicious prosecution. In his complaint, plaintiff seeks relief for vindictive prosecution only and makes no mention of either the cause or elements of malicious prosecution. The essence of a malicious prosecution is the institution of legal proceedings with malice and without probable cause. See Best v. Duke Univ., 337 N.C. 742, 749, 448 S.E.2d 506, 510 (1994); Greer v. Skyway Broad. Co., 256 N.C. 382, 389, 124 S.E.2d 98, 103 (1962). The gravamen of plaintiff‘s complaint is that defendant instituted Gilbert III to punish him for exercising his statutory rights to appeal and obtain the writs of supersedeas, not that defendant lacked probable cause and that Gilbert I or II terminated in his favor. I find no basis in the record for the majority‘s treatment of plaintiff‘s complaint as one for malicious prosecution.
In sum, because the interlocutory order in the instant case does not affect a substantial right that may be lost or irreversibly injured absent immediate review, I would affirm the decision of the Court of Appeals to dismiss the instant appeal. Assuming arguendo that the merits of defendant‘s appeal are properly before this Court, I conclude that the trial court correctly denied defendant‘s motion to dismiss because (1) the superior court had subject matter jurisdiction over plaintiff‘s
Justice HUDSON dissenting.
Because I conclude that the North Carolina State Bar has failed to show that this interlocutory appeal adversely affects a substantial right, I would hold that the Court of Appeals correctly dismissed defendant‘s appeal and that discretionary review was improvidently allowed. Therefore I respectfully dissent.
Without citing authority, the majority concludes that “defendant‘s right to carry out its duties to investigate and [discipline lawyers] is substantial.” The majority then acknowledges that the mere fact that defendant has been enjoined is not deprivation of a substantial right, but nonetheless concludes that “because the trial court‘s permanent injunction may prevent defendant from executing its statutory duties while plaintiff pursues an improperly pleaded action, an injury arises.”
The only authority in support of this latter proposition is a citation to a 1977 opinion from the Court of Appeals concerning an injunction against the North Carolina Board of Transportation, barring it from removing a billboard owned by the plaintiff. Freeland v. Greene, 33 N.C. App. 537, 540, 235 S.E.2d 852, 854 (1977). While the Court of Appeals there stated that it was considering the Board‘s interlocutory appeal of the injunction because it “adversely affect[ed] important rights in connection with the performance by them of [statutory] duties,” it provided no explanation. As such the Freeland opinion, which is not binding on this Court, gives little guidance on the analysis of this issue. The court‘s holding then rested on the conclusion that “plaintiff failed to exhaust his administrative remedies, [such that] this action should have been dismissed.” Id. at 544, 235 S.E.2d at 856.
Here the Court of Appeals has described the substantial right at stake as defendant‘s ability to “promulgate[] rules of professional conduct to protect the public from unethical behavior by attorneys. . .[,] conduct hearings and impose penalties in disciplinary matters.” As noted by the court in its decision below, “defendant fails to articulate how delaying its appeal until the case is resolved will jeopardize its ability to enforce the Rules of Professional Conduct. Nor does defendant identify any circumstance making review of the particular claim, which alleges that plaintiff mishandled $290 in 1998, of such urgency that the appeal cannot be delayed,” until the issue of damages has been
Likewise, my review finds no stated explanation of how the trial court‘s order enjoins defendant‘s ability to discharge its statutory duties in general, as opposed to pursuing its specific complaint against plaintiff. Neither does the trial court‘s order contain any broad prohibition against defendant carrying out its statutory duties. Instead, the trial court enjoined defendant from continuing its prosecution of plaintiff in one specific action to recover $290 in client funds allegedly misused by plaintiff. In so ordering, the trial court found defendant‘s pursuit of that action to be “but the latest in a series of unremitting, increasingly disturbing, and, ultimately, unlawful acts and practices that have been designed and intended by the State Bar to . . . punish and retaliate against the Plaintiff . . . and otherwise harass, menace and intimidate the Plaintiff.”
For those reasons, as well as a number of other fact-specific bases discussed in its seventy-seven page order, the trial court granted summary judgment to plaintiff on his claims for vindictive prosecution and violations of his rights to substantive and procedural due process, as related only to the most recent action brought by defendant against him. In addition, the trial court permanently enjoined defendant from “prosecuting or proceeding further with the prosecution of the claims and charges asserted in the case” and from publishing in any form “the past, present, or future pendency of the disciplinary action,” specified by file number, against plaintiff. This language very precisely targets and enjoins only defendant‘s actions against plaintiff and in no way impedes or restricts its ability to discharge its general statutory duties.
More importantly, defendant has failed to articulate what injury will result from any deprivation of a substantial right, if it is not corrected now, prior to final judgment as to all claims and controversies between the parties. See, e.g., Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (” ‘Essentially a two-part test has developed—the right itself must be substantial and the deprivation of that substantial right must potentially work injury . . . if not corrected before appeal from final judgment.’ ” (quoting Goldston v. Am. Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (alteration in original))); Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (“A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.” (citations omitted)); see also Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994) (“It is not the duty of this Court to construct arguments for or find support for appellant‘s right to appeal from an interlocutory order; instead, the appellant has the burden of show- ing this Court that the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.” (citations omitted)).
It is also noteworthy that the trial judge here explicitly declined to certify this interlocutory appeal for our immediate review pursuant to
Instead, the sole effect of our dismissing this appeal as interlocutory—beyond defendant perhaps having to wait for any recovery—would be simply to delay a determination of the substantive merits of defendant‘s arguments until appeal after entry of an order on damages. Simple delay does not amount to a deprivation or impairment of a substantial right; rather, preventing such delays underpins our general reluctance to hear interlocutory appeals. See Veazey, 231 N.C. at 363, 57 S.E.2d at 382 (“There is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders.“); State ex rel. Edmisten v. Fayetteville St. Christian Sch., 299 N.C. 351, 358, 261 S.E.2d 908, 913 (“The statutes and rules governing appellate review are more than procedural niceties. They are designed to streamline the judicial process, to forestall delay rather than engender it.“), appeal dismissed, 449 U.S. 807, 66 L. Ed. 2d 11 (1980). Such a holding would also be consistent with past decisions of this Court. See, e.g., id. at 355, 261 S.E.2d at 911 (dis- missing as interlocutory an appeal from a denial of a motion to dismiss and the grant of a preliminary injunction in part because the denial of a motion to dismiss “merely serves to continue the action then pending. No final judgment is involved, and the disappointed movant is generally not deprived of any substantial right which cannot be protected by timely appeal from the trial court‘s ultimate disposition of the entire controversy on its merits.“).
The majority‘s holding here goes beyond our long-standing jurisprudence describing the types of substantial rights, and possible impairment of those rights, that justify appellate review of an interlocutory order. The course it sets potentially opens floodgates that should remain closed. As such, I respectfully dissent.
Justice TIMMONS-GOODSON
Justice HUDSON