Bd. of Prof'l Responsibility v. Parrish

556 S.W.3d 153

BOARD OF PROFESSIONAL RESPONSIBILITY

v.Larry Edward PARRISH

No. W2017-00889-SC-R3-BP

Supreme Court of Tennessee, AT JACKSON.

April 4, 2018 Session

FILED August 14, 2018

Larry E. Parrish, Memphis, Tennessee, Pro Se.

Alan D. Johnson, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility.

Sharon G. Lee, J., delivered the opinion of the Court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark and Roger A. Page, JJ., joined. Holly Kirby, J., not participating.

Sharon G. Lee, J.

This is a direct appeal of a disciplinary proceeding involving a Memphis attorney who filed motions to recuse containing pejorative statements about three appellate judges. A hearing panel of the Board of Professional Responsibility found that the attorney had violated multiple Rules of Professional Conduct and that his sanction should be a public censure. The trial court agreed that the attorney was guilty of misconduct but modified the hearing panel’s decision, determining that the appropriate sanction was a six-month suspension, with thirty days served on active suspension and the remainder on probation. We hold that the attorney’s pejorative statements in the motions to recuse were not protected by the First Amendment and there was material and substantial evidence of noncompliance with the Rules of Professional Conduct. In addition, we hold that the hearing panel acted arbitrarily and capriciously in determining that the attorney should receive a public censure rather than suspension. We affirm the judgment of the trial court.

I.

This disciplinary action arises from pejorative statements made by attorney Larry E. Parrish in motions to recuse three judges on the Tennessee Court of Appeals after an adverse decision.

Mr. Parrish represented David Morrow and Judy Wright, the nephew and niece of Helen Goza, regarding a trust Ms. Goza had established for her son, John Goza. Under the terms of the trust, any assets remaining in the trust after the death of Mr. Goza were to be disbursed to various charities. After Mr. Goza’s death, Mr. Parrish, on behalf of Mr. Morrow and Ms. Wright, filed an action in the Shelby County Chancery Court seeking a declaratory judgment that the trust was not valid and that they were entitled to the trust’s remaining assets. The chancery court granted summary judgment, finding that the trust was valid. The Court of Appeals affirmed. Morrow v. SunTrust Bank , No. W2010-01547-COA-R3-CV, 2011 WL 334507 (Tenn. Ct. App. Jan. 31, 2011) (" Goza I ").

While the appeal in Goza I was pending, Mr. Morrow was appointed administrator of the Estate of John Goza. Mr. Parrish, representing the Estate and Mr. Morrow as administrator, filed a petition in probate court to require SunTrust Bank to turn over to the Estate the assets of the trust based on the asserted invalidity of the trust. Soon after, the Court of Appeals issued its ruling in Goza I , affirming the validity of the trust. SunTrust Bank then asserted that the probate case was barred by res judicata. The probate court denied the petition on that basis, and the Court of Appeals affirmed. In re Estate of Goza , 397 S.W.3d 564 (Tenn. Ct. App. 2012) (" Goza II ").

Next, Mr. Parrish, as attorney for the Estate, sued SunTrust Bank in the Shelby County Circuit Court. The circuit court dismissed that action, finding that the validity of the trust was res judicata and that it lacked subject matter jurisdiction. The Court of Appeals affirmed the circuit court in a memorandum opinion¹ authored by Judge David Farmer and joined by Judge Steven Stafford and (then)-Judge Holly Kirby. The Court of Appeals also determined the appeal was frivolous and awarded SunTrust Bank its attorney’s fees and costs. Goza v. Wells , No. W2012-01745-COA-R3-CV, 2013 WL 4766544 (Tenn. Ct. App. Sept. 4, 2013) (" Goza III "). Mr. Parrish moved for a rehearing and to recuse Judge Farmer. Mr. Parrish later filed motions to recuse Judges Stafford and Kirby.²

The judges submitted the recusal motions to the Board of Professional Responsibility ("the Board").³ The motions include the following statements by Mr. Parrish:

• Estate’s motion is grounded on Estate’s contention that Estate has been denied access to indisputable organic law of Tennessee applied to indisputable facts, and that access has been denied because of a prejudicial and baseless bias, evidently the result of personal sympathies/sensitivities of Judge Farmer.

• In contrast, if Estate shows that Judge Farmer (1) ruled the opposite of what he knew undebatable law to be, (2) wrote as fact that which he knew not to be fact to avoid the effect he knew would be required, if he acknowledged what he knew to be fact, (3) ruled as if ipse dixit was a holding and decision, (4) gave obiter dictum preclusive effect, (5) used half-truths to fabricate justification for judicial misconduct, (6) without the slightest justification, demeaned counsel for Estate to create a scapegoat for his judicial misconduct, (7) used the Memorandum Opinion as a vehicle to include unnecessary obiter dictum as a means, practically speaking, to prejudge case-dispositive issues pending in trial courts and, thereby, usurp the role of the trial courts to adjudge the issue independently and, finally, (8) awarded attorney’s fees against Estate based on fabrication, Estate will have established that Judge Farmer is serving, in this case, encumbered by a prejudice and bias against Estate to manufacture an outcome against Estate, in the teeth of indisputable organic law and indisputable fact that dictate the opposite.

• This is not about miscalling balls and strikes; this is about rigging the game.

• Estate’s motion further is grounded [sic] how that Judge Farmer adjudicated the appeal in the instant case so as to violate the rights of Estate guaranteed by the Tennessee Constitution , Art. I, Section 17 (open courts), thereby, engaging in judicial misconduct which requires Judge Farmer’s recusal. The same judicial misconduct violates the procedural and substantive due process rights of Estate and the heirs guaranteed by the United States Constitution , Fifth Amendment and Fourteenth Amendment.

• There is absolutely no way under the sun for Estate to fail to prevail in the instant appeal, except by judges deciding the appeal to turn a deaf ear and blind eye to the clearest possible provisions of § 35-15-203.

• Judge Farmer has victimized Estate by saying of a statute, i.e. Tennessee Code Annotated § 35-15-203, that it divests circuit court of subject matter jurisdiction, even though a person minimally literate in the English language could very easily read the statute and know, without hesitation, that the statute does exactly the opposite.

• This is an aberrant misstatement of clear law known to Judge Farmer....

• Placing the subject erroneous ipse dixit in Judge Farmer’s Memorandum Opinion, in practical effect, is a prejudgment designed to prejudice Estate in cases not before Judge Farmer.

• Additionally, the erroneous ipse dixit in Judge Farmer’s Memorandum Opinion is a setup, i.e., the point is to forewarn Estate not to exercise its right to an appeal in the case where the erroneous ipse dixit is dispositive and, if Estate exercises Estate’s right to appeal, Judge Farmer is poised to punish Estate for not heeding Judge Farmer’s forewarnings.

• Though it takes slightly more acumen than minimal literacy in the English Language, any person trained in the law and minimally versed in how the law treats ipse dixit and obiter dictum , at once, can see that the court of appeals never before has "held" or "decided" that the putative trust exists.

• The repeated statements in Judge Farmer’s Memorandum Opinion that the court of appeals, twice before, "held" or "decided" that the putative trust exists, for Judge Farmer, is a convenient and illegitimately purposeful fabrication.

• In an effort to provide a façade of legitimacy to Judge Farmer’s inclusion about the putative trust, Judge Farmer builds a construct on the false presupposition that § 35-15-203 divests circuit court of subject matter jurisdiction, if the putative trust exists.

• The illegitimate purpose for Judge Farmer injecting commentary into Judge Farmer’s Memorandum Opinion on the subject of the putative trust is to prejudge, erroneously, if (which is certain to occur) the issue is presented to the court of appeals in the future.

• By use of a memorandum opinion, Judge Farmer insulates his manipulation/rigging of the legal system from review by the Tennessee Supreme Court, i.e., the Supreme Court, even moreso [sic] than in the past, reiterates that it is not an error-correcting court. Therefore, a memorandum opinion, which has zero effect on Tennessee law, has zero chance of being reviewed by the Supreme Court. Knowing this, Judge Farmer is confident that Judge Farmer’s patent error and abuse of Judge Farmer’s judicial power will remain effective to accomplish Judge Farmer’s illegitimate objectives.

• Judge Farmer has done a masterful job of covering up the fact that Judge Farmer has stepped out of Judge Farmer’s role as an even-handed Judge and into the role of adversary of the Estate, willing to abuse the power of his judicial office to deny Estate’s access to unexceptional organic law of Tennessee well-known to Judge Farmer.

• Many authors, among them Alfred Lord Tennyson, have observed that the half-truth is the most sinister of all deception. The point is that sprinkling into deception particles of truth, misused and taken out of context, makes it much harder to detect deception than a straight out misstatement of objective fact. Judge Farmer has used the half-truth in constructing Judge Farmer’s Memorandum Opinion. Judge Farmer’s Memorandum Opinion is a patchwork of snippets of truth glued together by adhesive design to close to Estate access to controlling organic law.

• It is the contention of appellant, the Estate of John J. Goza, Deceased (hereinafter "Estate"), as a litigant in the instant appeal and in

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