V I R G I N I A:



BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD



IN THE MATTER OF LUTHER CORNELIUS EDMONDS

VSB Docket No. 00-022-1227



ORDER AND OPINION

This matter came before the Virginia State Bar Disciplinary Board for hearing on April 26, 2002, before a duly convened panel of the Board consisting of Thaddeus T. Crump, Lay Member, J. Rudy Austin, Robert L. Freed, Joseph R. Lassiter, Jr., and William M. Moffet, presiding, pursuant to a certification of the Second District, Section II Subcommittee of the Virginia State Bar served on the Respondent, Luther Cornelius Edmonds (the "Respondent"), on August 1, 2001.

Richard E. Slaney ("Assistant Bar Counsel") appeared as Counsel for the Virginia State Bar (the "VSB"). Respondent appeared pro se. The court reporter for the proceeding, Valerie L. Schmit, RPR, of Chandler and Halasz, Post Office Box 9349, Richmond, Virginia 23227, (804) 730-1222, was duly sworn by Mr. Moffet, the Chair of the Board. All legal notices of the date and place of this hearing were timely sent by the Clerk of the Disciplinary System in the manner prescribed by law. The Chair polled the Board members and determined that no member had a conflict of interest.

The exhibits presented by Assistant Bar Counsel on behalf of the VSB were admitted into evidence as Exhibits 1 through 17 without objection. The exhibits presented by Respondent were admitted as Exhibits 2 through 4 without objection and 5 over objection.

As Respondent's Answer filed in the above referenced matter admitted almost all of the allegations of fact set out in the Certification, very little of the evidence presented was in controversy.

The evidence may be summarized as follows:

  1. At all times material to this hearing, Respondent was an attorney licensed to practice law in the Commonwealth of Virginia.
  2. In VSB Docket No. 98-022-2497, a companion matter, we determined on April 26, 2002, that:
    1. Respondent formerly served as a Judge of the Norfolk Circuit Court and resigned his judgeship during a hearing on charges against him held before the Commonwealth of Virginia Judicial Inquiry and Review Commission (the "JIRC"). Respondent became involved in a dispute with the other judges of the Norfolk Circuit Court regarding bonds posted by bondsmen in the Norfolk Circuit Court. During a heated discussion, one of the judges accused Respondent of having a relationship with a certain Ms. Battle, a bondswoman. The alleged conflicts of interest arising out of Respondent's handling of bond cases involving Ms. Battle led to a the JIRC inquiry. As a result of these events, Respondent resigned his position as a circuit court judge.
    2. Respondent thereafter filed a civil suit (civil action no. 2:97cv364) (the "JIRC Suit") in the United States Federal District Court for the Eastern District of Virginia (the "Federal Court") against eight of his former judicial colleagues (the "Norfolk Judges"), Albert Teich, Clerk of the Norfolk Circuit Court ("Teich"), JIRC and its former chairman, and Reno Harp, III, former Counsel to JIRC (collectively, the "Defendants"). The JIRC Suit consisted of eight counts presenting claims regarding the motivation and conduct of the persons who brought certain matters to the attention of JIRC, who testified in its proceedings, or who conducted its proceedings. The relief sought in the JIRC Suit included compensatory damages of Forty Million and 00/100 Dollars ($40,000,000.00), punitive damages of Ten Million and 00/100 Dollars ($10,000,000.00), injunctive relief requiring that Respondent be reinstated as a state circuit court judge, and Respondent's attorney's fees and costs in bringing the JIRC Suit.
    3. The Defendants moved to dismiss the JIRC Suit on several grounds. Following the filing of written briefs and oral argument, the Honorable Robert E. Payne ("Judge Payne") ruled: "Having sought to discern the basis for Edmonds' claims, the Court concludes that they are highly suspect, if not entirely lacking in merit. However, it is not necessary to reach the merits of Edmonds' federal claims because the Court is without jurisdiction to entertain them." Edmonds v. Clarkson, et al., 996 F.Supp. 541 (E. D. Va. 1998). Judge Payne held that an established constitutional principle known as the Rooker-Feldman Doctrine clearly precluded the Federal Court from addressing Respondent's constitutional claims that were asserted or could have been asserted in state court. Essentially, federal district courts cannot act as appellate courts to review constitutional claims that are inexorably intertwined with state court decisions. Judge Payne found that Respondent could not short-circuit the state judicial review proceedings by resigning (without presenting any of his constitutional claims to JIRC or the Virginia Supreme Court) and by then filing suit in federal district court on constitutional grounds attacking his "forced" resignation. Judge Payne also held that, as the Federal Court had no federal jurisdiction in this matter, it had no supplemental jurisdiction over related state law claims made by Respondent.
    4. After the JIRC Suit was dismissed, the Defendants filed a motion for sanctions pursuant to Rule 11 and for attorney's fees pursuant to 42 D.S.C. Section 1988. In analyzing the JIRC Suit under the objective test of Rule 11, Judge Payne found the claims against Teich had no basis in law or in fact, and that the claims against the remaining Defendants had no basis in law. He noted Respondent did not even attempt to distinguish the relevant case law, and that a reasonable investigation of the law would have shown the JIRC Suit to be baseless under the Rooker-Feldman Doctrine. Judge Payne found several counts failed to set forth any cognizable federal or state law claims, and the principal relief sought (reinstatement as a state circuit court judge) was clearly not available from a federal forum. Judge Payne also found each of Respondent's state law claims lacked any basis in state law. In a separate analysis within the same opinion, Judge Payne found the JIRC Suit was filed and prosecuted for an improper purpose (for harassment or some purpose other than to vindicate rights through the judicial process). In an opinion dated April 7, 1998, Judge Payne awarded Rule 11 sanctions in the amount of One Thousand and 00/100 Dollars ($1,000.00) to Teich and Fourteen Thousand Six Hundred 00/100 Dollars ($14,600.00) to the other Defendants.
    5. Respondent appealed the decision to dismiss the JIRC Suit and to sanction him to the U.S. Court of Appeals for the Fourth Circuit, that affirmed both the dismissal and the sanctions.
    6. At the VSB hearing on April 26, 2002, Respondent testified that while in law school he had been taught that "the law is a vehicle for social change" citing Brown v. Board of Education as an example thereof. Respondent testified as to his education, experience, public service, and service as judge in the Virginia judicial system. He also testified that the circumstances leading up to the JIRC investigation forced him to resign, and that he believed that the filing of the JIRC Suit was the only alternative available to him. Respondent testified that he had violated no law, that he did not bring the JIRC Suit for the purpose of harassing anyone, that he believed he had good faith arguments to support his pleadings, and that he had in good faith argued for an extension, modification, or reversal of existing law with regard to the Rooker-Feldman Doctrine. After filing the JIRC Suit, Respondent, while incarcerated in the Norfolk City jail, prepared and filed a seventy-three (73) page brief in support of his claims that devotes only two (2) pages to the Rooker-Feldman Doctrine.
    7. By clear and convincing evidence we found that Respondent violated DR 2-107(A)(2) that provides in relevant part that: "A lawyer shall not accept or continue employment on behalf of a person if he knows or it is obvious that such person wishes to: . . . (2) Present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification, or reversal of existing law."
    8. By clear and convincing evidence, we found that Respondent violated DR 7-102(A)(2) that provides in relevant part that: "In his representation of a client, a lawyer shall not: . . . (2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law."
    9. We issued a Public Reprimand against Respondent in VSB Docket Number 98-022-2497.
  3. In June of 1997, Respondent filed a suit in Chesapeake Circuit Court on behalf of the corporation Elite Child, Inc. ("Elite Child") against Greenbrier Mall (the "Mall") in Chesapeake, Virginia. Elite Child leased space at the Mall, and sought to enjoin a threatened eviction and recover damages for alleged racial discrimination in connection with the eviction. Ms. Battle was a principal in Elite Child.
  4. After a hearing on the matter, the Honorable E. Preston Grissom ("Judge Grissom"), Judge of the Chesapeake Circuit Court, entered judgement in favor of the Mall. Upon motion made by the Mall, Judge Grissom also awarded attorney's fees and costs as provided for under the terms of the lease agreement in the total amount of Twelve Thousand One Hundred Sixty-nine and 90/100 Dollars ($12,169.90).
  5. Respondent either failed to file or purposely did not file an appeal to the Virginia Supreme Court on behalf of Elite Child. Thereafter, Respondent sought an enlargement of time in which to file a petition for appeal to the Virginia Supreme Court. The Court denied the motion and, no petition for appeal having been filed, the record was returned to the Chesapeake Circuit Court.
  6. In May, 1998 (less than thirty (30) days after the issuance of the decision by Judge Payne to dismiss the JIRC Suit and to sanction Respondent) Respondent filed suit in the Federal Court against the Mall and against Judge Grissom (civil action no. 2:98cv488, the "Grissom Suit"). Two of the five counts in the Grissom Suit essentially accused Judge Grissom of racial discrimination in rendering his decision against Elite Child. The relief requested was for injunctive relief from the Federal Court enjoining Judge Grissom's order in favor of the Mall, declaratory relief stating that Elite Child's constitutional rights had been violated, compensatory damages in the amount of One Million and 00/100 Dollars ($1,000,000.00), punitive damages in the amount of One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00), and Elite Child's costs and attorney's fees in the action.
  7. Both the Mall and Judge Grissom filed motions to dismiss on the grounds that the Federal Court lacked jurisdiction pursuant to the Rooker-Feldman Doctrine. The Honorable Richard L. Williams ("Judge Williams") found there was no jurisdiction in the Federal Court pursuant to the Rooker-Feldman Doctrine and dismissed the Grissom Suit in an Order dated November 10, 1998.
  8. Thereafter, Judge Grissom filed a motion for sanctions pursuant to Rule 11 and for attorney's fees pursuant to 42 U.S.C. Section 1988. Judge Williams ruled that the legal theories asserted by Respondent in the Grissom Suit were jurisdictionally barred by law and that he offered no non-frivolous arguments for the extension, modification, or reversal of that law, and awarded Judge Grissom attorney's fees in the amount of Seven Thousand Nine Hundred Thirty-five and 00/100 Dollars ($7,935.00) under Section 1988, sanctions in the amount of Ten Thousand and 00/100 Dollars ($10,000.00) under Rule 11, and enjoined Elite Child, Sherry Battle, and Respondent from filing any federal suit against any Virginia state court judge absent authority from a federal judge to do so.
  9. Respondent appealed both the dismissal of the Grissom Suit and the sanctions to the Fourth Circuit, which affirmed on both points. In late 2000, the U.S. Supreme Court refused a petition for certiorari.

The Board finds by clear and convincing evidence that Respondent violated DR 7-102(A)(1) and (2) that provide in relevant part that: "In his representation of a client, a lawyer shall not: (1) File a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another, [or] (2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law."

All other Charges of Misconduct with regard to VSB Docket Number 00-022-1227 are dismissed.

It is hereby ORDERED that, pursuant to Part 6, IV, 13.C of the Rules of the Supreme Court of Virginia, the license of Respondent to practice law in the Commonwealth of Virginia shall be, and is hereby, SUSPENDED for a period of six months, effective April 26, 2002.

We hasten to point out that the imposition of sanctions in a federal or state court will not, in and of itself, automatically result in the imposition of discipline under our rules. The responsibility of every lawyer, as Respondent testified, is to use the law "as a vehicle for change" when change is required and a good faith argument for such change may be made. However, for an attorney licensed to practice in the Commonwealth of Virginia, the change must be brought in a lawful manner and in compliance with the Code of Professional Conduct or the Rules of Professional Responsibility. Here we find by clear and convincing evidence that Respondent presented and pursued claims that were both unwarranted under existing law and unsupported by any good faith argument for an extension, modification, or reversal of existing law. It is these failures that serve as the predicate for the imposition of discipline.

In imposing a suspension, rather than the public reprimand that we imposed in VSB Docket Number 98-022-2497, we note five very important differences between the facts in the Grissom Suit and the facts in the JIRC Suit. First, Judge Payne issued the Order for Sanctions in the JIRC Suit less than thirty (30) days before Respondent filed the Motion for Judgement in the Grissom Suit. Respondent was therefore on notice regarding the applicability of the Rooker-Feldman Doctrine when he filed the Motion for Judgment in the Grissom Suit. Second, Respondent had to have known that meritless claims would simply not be tolerated in the Federal Court given the Order for Sanctions issued by Judge Payne in the JIRC Suit. Third, Respondent either purposefully or negligently failed to perfect the appeal to the Virginia Supreme Court in the suit filed on behalf of Elite Child. Fourth, given Respondent's service as a judge in this Commonwealth, he must have known, or he should have known, the outcome of filing meritless claims in the Grissom Suit. Fifth, upon questioning by a panel member, Respondent could not or would not summarize the Rooker-Feldman Doctrine for the panel, a doctrine absolutely crucial to both the JIRC and Grissom Suits.

Despite Respondent's testimony to the contrary, we conclude that Respondent purposefully filed the Grissom Suit to harass or malicious injure Judge Grissom solely because he ruled against Respondent's client, Elite Child, and that this filing by Respondent was egregiously outrageous.

Again, we state that the imposition of sanctions by a court will not automatically result in the imposition of discipline under the Code of Professional Responsibility or the Rules of Professional Conduct. It was Respondent's complete disregard for the facts and law that resulted in the imposition of discipline in this matter.

It is FURTHER ORDERED that in as much as Respondent's license to practice law was suspended by this Board pursuant to a Rule to Show Cause and Order of Suspension and Hearing entered on November 30, 1999 pursuant to Part 6, Section IV, Paragraph 13.E, of the Rules of the Supreme Court of Virginia, Proceedings upon Adjudication of a Crime, and that said Order is still in effect, and that said Order required Respondent to comply with Paragraph 13.K(1), Respondent is not required to comply with the notice requirements of Paragraph 13.K(1) a second time. However, to the extent he has not fully complied with the Paragraph 13.K(1) requirements of the November 30, 1999 Order, he is ORDERED to do so in connection with the suspension imposed by this Order.

It is FURTHER ORDERED that the Clerk of the Disciplinary System shall send an attested and true copy of this order and opinion to Respondent by certified mail, return receipt requested, at his address of record with the Virginia State Bar, 1225 Boissevain Avenue, Norfolk, Virginia 23507; and to Richard E. Slaney, Assistant Bar Counsel, 707 East Main Street, Suite 1500, Richmond, Virginia, 23219-2803.

The Clerk of the Disciplinary System shall assess costs pursuant to Part 6, IV, 13.K(10) of the Rules of the Supreme Court of Virginia.

SO ORDERED, this ____ day of May, 2002.



By: _____________________________________________

William M. Moffet, Chairman