Sue Me, Sue Me, What Can You Do Me?
The Maine Supreme Judicial Court affirmed the dismissal of a civil action brought by a dissatisfied respondent attorney
Seth T. Carey appeals from a judgment of the Superior Court (Kennebec County, Anderson, J.) granting motions to dismiss and motions for summary judgment. The court’s order resulted in judgment for all defendants on Carey’s wide-ranging complaint against judges and other court employees, the Board of Overseers of the Bar, the Maine Commission on Indigent Legal Services (MCILS), and the Lewiston Sun Journal. Carey’s complaint was based on the defendants’ actions related to or participation in an attorney disciplinary proceeding before the Board that resulted in the court (Brennan, J.) accepting an agreed two-year suspended suspension from the practice of law with many conditions imposed on Carey’s practice.
Carey has been the subject of three disciplinary actions.
Less than two months after the entry of the November 2016 agreed-upon suspended suspension disciplinary order, in January 2017, Carey filed in the Superior Court a wide-ranging complaint, later amended, against the four judges who had presented evidence in the Grievance Commission proceedings, several other court employees who had worked with the judges, the physician who had filed the complaint against Carey, the Lewiston Sun Journal, MCILS and its director, the Board of Overseers of the Bar, the Board’s attorneys who had prosecuted the grievance complaint against Carey and negotiated the agreed disposition of the grievance complaint, the Maine District Court, and the Office of the Clerk of Courts.
The law
Here, accepting Carey’s factual allegations as true, Carey alleges no set of facts that could support the requisite elements of any of the claims he asserts against the defendants, who are governmental employees or entities. Carey generally states that the defendants “engaged in repeated malfeasance and prolonged efforts to wrongfully destroy Carey’s professional career and reputation through false and embellished swearing, testimony and accusations,” but he never specifically asserts what these efforts were. Carey’s claims asserted against the defendants, even if factually true, are conclusory and legally deficient, as he does not provide enough facts to support each element of the causes of action he alleges. See Seacoast Hangar Condo. II Assoc. v. Martel, 2001 ME 112, ¶ 16, 775 A.2d 1166 (stating that in reviewing a dismissal this Court is not bound to accept the complaint’s legal conclusions).
Further, Carey states that he “defended against these outlandish, dangerously embellished and even completely fabricated allegations” that were the basis of his attorney discipline action that resulted in the November 2016 order finding that Carey had violated provisions of the Maine Rules of Professional Conduct, see Board of Overseers of the Bar v. Carey, BAR-16-15 (Nov. 21, 2016) (Brennan, J.). Carey waived his right to trial on those allegations and attempts to relitigate the issues raised during his bar discipline hearing, despite the fact that he “agreed to the entry of this negotiated Order identifying [his] misconduct and the resulting sanctions imposed by the Court.” Id. at 1.
Separate from the insufficiency of the complaint to state claims against these defendants, and contrary to Carey’s contentions, the defendants’ actions were protected pursuant to 14 M.R.S. § 8111(1)(B)-(D). The Board and Judicial/MCILS defendants are employees of government entities, and their actions related to the disciplinary hearing concerning Carey’s conduct as an attorney were discretionary functions, judicial functions, or prosecutorial functions within the meaning of 14 M.R.S. § 8111(1)(B)-(D). The court did not err in granting the Board and Judicial/MCILS defendants’ motions to dismiss.
In addition to the grounds to support dismissal of the action noted by the trial court, Carey’s complaint against the judges and other judicial employees arises out of their report to the Board of action by Carey that they viewed as unethical…
Carey agreed to discipline based on the judges’ complaints and the physician’s complaint. Consequently, there can be no question that the qualified privilege to report Carey’s misconduct protected the judges’ and the physician’s reports in this case.
And as to the news reports
Carey fails to provide, with specificity, the actual statements or actions of the Lewiston Sun Journal that support his claims. Referencing reports about Carey’s then pending public disciplinary proceedings, Carey alleges that the “Sun Journal gladly took these lies and did what they do—wrote another libelous batch of stories” and that the “Sun Journal (a.k.a. ‘Scum Journal’) published these lies and embellishments and published them, irreparably damaging Plaintiff’s professional and private reputation.” These are two of the few specific references to the Lewiston Sun Journal in Carey’s complaint, and Carey does not state what these “lies” and “embellishments” were.
Newspaper reports of public court filings and proceedings, including those proceedings that result in imposition of professional discipline, are protected conduct under the First Amendment…
Title dedicated to Paul Burgoyne. (Mike Frisch)