IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS MARA LEVERITT

PLAINTIFF

VS.

ARKANSAS SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT; and STARK LIGON, Executive Director, Arkansas Supreme Court Committee On Professional Conduct, In His Official Capacity Only

DEFENDANTS

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Comes Mara Leveritt, through her attorney, Jeff Rosenzweig, and for her Complaint for Declaratory and Injunctive Relief states: PARTIES 1. Plaintiff Mara Leveritt is a journalist and citizen and resident of the State of Arkansas. In her journalistic career she has written extensively on criminal cases and the operation of the Arkansas judicial system. 2. Defendant Arkansas Supreme Court Committee on Professional Conduct (“Committee”) is a committee formed by the Arkansas Supreme Court for the regulation of the professional conduct of attorneys in Arkansas.

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Although the

Supreme Court is in overall charge of the professional conduct system, the Committee is the enforcement mechanism for the system. The Committee is sued only in its official capacity. Valerie Kelly is the current chair of the Committee.

The

Committee’s offices are in Little Rock, Pulaski County, Arkansas. 3. Defendant Stark Ligon (Ligon) is the executive director of the Supreme Court Committee on Professional Conduct. Although the Supreme Court is in overall charge of the professional conduct system, Ligon is the chief administrator of the enforcement mechanism for the system.

Ligon’s office is in Little Rock, Pulaski

County, Arkansas. JURISDICTION AND VENUE 4. Jurisdiction is founded on 28 USC § 1331 conferring original jurisdiction on the district courts for civil actions authorized by law regarding any federal question, and 28 USC § 1343, conferring original jurisdiction upon the district courts to secure equitable or other relief under any Act of Congress providing for the protection of civil rights . This suit is authorized pursuant to 42 USC § 1983. This suit seeks declaratory and injunctive relief and does not seek damages. An award of costs and attorneys fees is authorized pursuant to 42 USC § 1988. 5. Venue is proper in this court under 28 USC § 1391(b) because the Eastern District of Arkansas is the district in which a substantial part of the events giving rise 2

to the claim occurred. RULES AT ISSUE IN THIS COMPLAINT 6.

At its root, this complaint challenges the constitutionality of certain

sections of the PROCEDURES PROFESSIONAL CONDUCT

OF

OF THE

ARKANSAS SUPREME COURT REGULATING

ATTORNEYS

AT

LAW (“ PROCEDURES.”)

The

PROCEDURES were promulgated by the Arkansas Supreme Court pursuant to its authority under Amendment 80 to the Constitution of Arkansas. The sections relevant to this lawsuit are as follows:

SECTION 6. CONFIDENTIALITY/RECORDS. A. Communications Confidential. Subject to the exceptions listed in subsections B and C of this Section: (1) All communications, complaints, formal complaints, testimony, and evidence filed with, given to, or given before the Committee, or filed with or given to any of the employees and agents of the Office of Professional Conduct during the performance of their duties, that are based upon a complaint alleging an attorney has violated the Rules, shall be absolutely privileged and confidential and exempt from disclosure under the Arkansas Freedom of Information Act, Ark. Code Ann. §§ 25-19-101 et seq., pursuant to Ark. Code Ann. § 25-19-105(b)(8), as documents protected from disclosure by order or rule of the Supreme Court of Arkansas; and (2) All actions and activities arising from or in connection with an alleged violation of the Rules by an attorney licensed to practice law in this State are absolutely privileged and confidential. (3) These provisions of privilege and confidentiality shall 3

apply to complainants. B. Exceptions (1) Except as expressly provided in these Procedures, proceedings under these Procedures are not subject to the Arkansas Rules of Civil Procedure regarding discovery. (2) The records of public hearings conducted by the Committee pursuant to Section 11 of these Procedures are public information. (3) In the case of disbarment, the Committee and the Office of Professional Conduct are authorized to release any information that either deems necessary for that purpose. (4) The Committee is authorized to release information: (a) For statistical data purposes; (b) To a corresponding lawyer disciplinary authority or an authorized agency or body of a foreign jurisdiction engaged in the regulation of the practice of law; (c) To the State Board of Law Examiners; (d) To the Committee on the Unauthorized Practice of Law; (e) To the Arkansas Client Security Fund Committee; (f) To the Commission on Judicial Discipline and Disability; (g) To any other committee, commission, agency, or body within the State empowered to investigate, regulate, or adjudicate matters incident to the legal profession, when such information will assist in the performance of those duties; (h) To any agency, body, or office of the federal government or this State charged with responsibility for investigation and evaluation of a lawyer's qualifications for appointment to a governmental position of trust and responsibility or for the discipline or sanction of any attorney; or, (i) Pursuant to the provisions of Section 9(A) and Section 4

15(B) of these Procedures. (5) Any attorney against whom a formal complaint is pending shall have disclosure of all information, excluding attorney work product, research, and materials obtained and intended for use as rebuttal to any witness for the respondent attorney at a hearing, in the possession of the Committee and the Office of Professional Conduct concerning that complaint, including any record of prior complaints about that attorney. Procedures for discovery for formal complaints are set out in Section 8. (6) The attorney about whom a complaint is made may waive, in writing, the confidentiality of the information. (7) In all cases, the complainant shall be provided with a copy of the respondent attorney's affidavit of response and afforded a reasonable opportunity to reply, in accordance with Section 9(B)(3). C. Sanctions Made Public. When a public sanction becomes final under these Procedures or when the Committee decides to initiate disbarment proceedings, a copy shall be forwarded to the Clerk and shall be maintained as a public record by the Clerk. Such information shall also be publicly disseminated, including release to the press and posting on the Arkansas Judiciary website. SECTION 27. CONTEMPT. The following shall be regarded as contempt of the Arkansas Supreme Court: A. Willful disobedience of any Committee or panel order, summons, or subpoena; B. The refusal to testify on matters not privileged by law; C. Knowingly testifying falsely before a panel of the Committee; D. Engaging in the practice of law during a period of suspension; E. Engaging in the practice of law after a disbarment or surrender of license; or, F. Violation of these Procedures by any person. 5

7. In addition, Section 3.C(8) of the Procedures provides in pertinent part that “(i)f found to be in contempt of the Supreme Court under these Procedures, a person may be punished by incarceration, imposition of a fine, or both.” FACTS 8. As a result of her investigations into two controversial cases within the Arkansas judicial system, Plaintiff Leveritt filed grievances with the Committee alleging that several elected public officials and a senior appointed official had violated their professional responsibilities by their actions in these two highly publicized criminal cases. (Exs. 1 and 4). Letters from Defendant Ligon (Exs. 2,3, 5 and 6) instructed her that the complaints were confidential and that violation thereof could be punished as contempt of the Arkansas Supreme Court.

Leveritt

publicized that she had filed the grievances and the substance thereof. (See Exs. 7 and 8) As a result of Leveritt’s public statements as to the filing of these grievances, Defendant Ligon stated — accurately insofar as a reading of the PROCEDURES is concerned — that Leveritt may be subject to contempt proceedings for publicizing the existence of the complaints. (Ex. 8) As set forth in the Procedures, the result of that could include incarceration. Some aspects of the complaints have been resolved, but Leveritt is prohibited from discussing them because of the provisions of the PROCEDURES. 6

9. Because of the PROCEDURES’S prohibition on publicity and to avoid the adverse consequences of a perceived violation before this case is resolved, those cases will be referred to in this complaint as Case 1 and Case 2. Concurrently with this complaint, Leveritt has filed a Motion to File Exhibits Under Seal.

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10. The complaints presented in the grievances deal with matters of public concern, i.e. the administration of the judicial system and the actions of elected and senior appointed public officials in their handling of criminal cases.

As such,

Leveritt submits that the complaints deal with core protections of the First Amendment regarding guarantees of the right to speak on matters of public concern and that the aforementioned sections of the Procedures are overbroad, are an

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The following is a list of the Exhibits which Leveritt seeks to file under

seal: Ex. 1— Leveritt’s Complaint in Case 1. Ex. 2— Acknowledgment letter from Office of Professional Conduct in Case 1. Ex. 3(a) and (b)— Closing letters from Office of Professional Conduct in Case 1. Ex. 4— Leveritt’s Complaint in Case 2. Ex. 5— Acknowledgment letter from Office of Professional Conduct in Case 2. Ex. 6(a) and(b)— Closing letters from Office of Professional Conduct in Case 2. Ex. 7— Leveritt website postings, generally about Case 1. Ex. 8— Newspaper article, generally about Case 2.

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unconstitutional prior restraint and create a chilling effect with regard to First Amendment rights.

FIRST CAUSE OF ACTION—DECLARATORY RELIEF. “PROCEDURES” VIOLATE FIRST AMENDMENT RIGHT TO FREEDOM OF SPEECH (OVERBROAD, UNCONSTITUTIONAL PRIOR RESTRAINT OF SPEECH AND CHILLING EFFECT— FACIAL INVALIDITY) US Constitution Amendments 1,14; 42 USC 1983 11.

Section 6 of the PROCEDURES, as enforced by Section 27 of the

PROCEDURES, prohibits any complainant from disclosing the existence and nature of any complaint. This prohibition facially violates Leveritt’s First Amendment right to freedom of speech and press as incorporated by the Fourteenth Amendment. 12. These Sections are facially invalid in ways including, but not necessarily limited to, the following: (a) Overbreadth. The prohibition is overbroad. Even assuming that some restriction on the publication of information about professional grievances is valid, the First Amendment protects the right to discuss the actions and performance of public officials on matters of public concern. Section 6 infringes on that right; (b) Prior restraint. The prohibition is unconstitutional in that it exerts a prior restraint on Leveritt’s First Amendment right to speak to the public and the press about any complaints she may have filed with the Committee and the contents 8

thereof. The First Amendment does not permit any provision of law to prohibit by prior restraint a private citizen from stating the fact that she has filed a complaint against a public official with a public agency about the performance of that official’s public duties, nor the substance of such complaint nor any comments about the resolution thereof; (c) Chilling effect. The prohibition, with the threat of contempt sanctions, creates a chilling effect on protected speech in violation of the First Amendment. 13. For the reasons stated above, this Court must declare Sections 6 and 27 as violative of the First Amendment as facially overbroad and an unconstitutional prior restraint on Leveritt’s First Amendment right to disclose, acknowledge or otherwise publicize the fact that she has filed a complaint against a public official and to disclose and acknowledge the nature of any such complaint. SECOND CAUSE OF ACTION—DECLARATORY RELIEF. “PROCEDURES” VIOLATE FIRST AMENDMENT RIGHT TO FREEDOM OF SPEECH (OVERBREADTH, UNCONSTITUTIONAL PRIOR RESTRAINT OF SPEECH AND CHILLING EFFECT AS APPLIED) US Constitution Amendments 1,14; 42 USC 1983 14.

Section 6 of the PROCEDURES, as enforced by Section 27 of the

PROCEDURES, prohibits any complainant from disclosing the existence and nature of any complaint. This prohibition violates, as applied, Leveritt’s First Amendment right to freedom of speech and press as incorporated by the Fourteenth Amendment. 9

15. These Sections are invalid, as applied to Leveritt, in ways including, but not necessarily limited to, the following: (a) Overbreadth. The prohibition is overbroad. Even assuming that some restriction on the publication of information about professional grievances is valid, the First Amendment protects the right to discuss the actions and performance of public officials on matters of public concern and thus as applied to Leveritt’s complaints,

Section 6 infringes on that right;

(b) Prior restraint. The prohibition is unconstitutional in that it exerts a prior restraint on Leveritt’s First Amendment right to speak to the public and the press about any complaints she may have filed with the Committee and the contents thereof. The First Amendment does not permit any provision of law to prohibit by prior restraint a private citizen from stating the fact that she has filed a complaint against a public official with a public agency nor the nature of such complaint nor any comments about the resolution thereof. (c) Chilling effect. The prohibition, with the threat of contempt sanctions, creates a chilling effect on protected speech in violation of the First Amendment. Leveriitt cannot fully speak or write on the issues involving Case 1 and Case 2 without running the risk of violating the PROCEDURES. 16. For the reasons stated above, this Court must declare Sections 6 and 27 10

as violative of the First Amendment as overbroad and an unconstitutional prior restraint as applied on Leveritt’s First Amendment right to disclose, acknowledge or otherwise publicize the fact that she has filed a complaint against a public official and to disclose and acknowledge the nature of any such complaint. THIRD CAUSE OF ACTION—INJUNCTIVE RELIEF. PLAINTIFF IS ENTITLED TO AN INJUNCTION TO PROHIBIT ENFORCEMENT OF THE PROCEDURES INSOFAR AS IT PROHIBITS HER FROM DISCLOSING AND COMMENTING UPON COMPLAINTS AGAINST PUBLIC OFFICIALS IN THE CONDUCT OF THEIR OFFICIAL DUTIES. US Constitution Amendments 1,14; 42 USC 1983 and 1988. 17. The PROCEDURES’S violation of the First Amendment as incorporated by the Fourteenth Amendment require this Court to enter a permanent injunction to restrain the Defendants from prospectively subjecting Plaintiff to future administrative, civil and criminal proceedings, penalties, liability or other adverse action under the aforementioned constitutionally deficient provisions of the Procedures. 18. Plaintiff has no adequate remedy at law. WHEREFORE, Plaintiff prays that for the reasons set forth in this complaint, this Court declare the relevant sections of the PROCEDURES to be unconstitutional both facially and as applied; that an injunction issue to prevent enforcement; that she be awarded attorneys fees and costs and that she be granted all other relief to which 11

she may be entitled.

MARA LEVERITT

________________________ JEFF ROSENZWEIG Ark. Bar No. 77115 300 Spring St. Suite 310 Little Rock, AR 72201 (501) 372-5247 [email protected] Attorney for Plaintiff

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