1

1 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA
2 Richmond Division

4 RHETTA M. DANIEL }
}
5 v. } Civil Case No.:
} 3:18 CV 234
6 VIRGINIA STATE BAR }
and }
7 DISCIPLINARY BOARD OF THE }
VIRGINIA STATE BAR }
8
April 12, 2018
9

10 COMPLETE TRANSCRIPT OF MOTIONS HEARING

BEFORE THE HONORABLE HENRY E. HUDSON
11 UNITED STATES DISTRICT COURT JUDGE

12

13 APPEARANCES:

14 Rhetta M. Daniel, Esquire

3420 Pump Road
15 #170
Richmond, Virginia 23233
16
Pro se
17

18 Samuel T. Towell, Esquire

Erin R. McNeill, Esquire
19 OFFICE OF THE ATTORNEY GENERAL
(Richmond)
20 202 North 9th Street
Richmond, Virginia 23219
21
Counsel on behalf of Virginia State Bar and
22 Disciplinary Board of the Virginia State Bar

23

24 KRISTA L. HARDING, RMR

OFFICIAL COURT REPORTER
25 UNITED STATES DISTRICT COURT
 2
1 (The proceeding commenced at 1:59 p.m.)

2 THE COURT: Good afternoon.

3 MS. DANIEL: Good afternoon.

4 MR. TOWELL: Good afternoon, Your Honor.

5 THE COURT: Go ahead and call our case,

6 Ms. Pizzini.

7 THE CLERK: Case Number 3:18 CV 234. Rhetta M.

8 Daniel v. Virginia State Bar and Disciplinary Board of the

9 Virginia State Bar.

10 Plaintiff is present in the courtroom pro se.

11 Defendants are represented by Mr. Samuel Towell

12 and Ms. Erin McNeill.

13 Are the parties ready to proceed?

14 MS. DANIEL: Yes, I am. Thank you.

15 MR. TOWELL: Defendants are prepared, Your

16 Honor.

17 THE COURT: The matter is before the Court this

18 afternoon on Ms. Daniel's petition seeking a preliminary

19 injunction against the defendants prohibiting the Virginia

20 State Bar and Disciplinary Board of the Virginia State Bar

21 from holding an impairment hearing on Monday, April 9,

22 2018, at 9:00 a.m.

23 I understand, Ms. Daniel, you filed a motion

24 this afternoon for a continuance, is that correct?

25 MS. DANIEL: Yes, sir. That's correct.

 3
1 THE COURT: Let me hear you on that first. Come

2 on up to the podium, Ms. Daniel.

3 MS. DANIEL: Thank you very much.

4 THE COURT: Ms. Daniel, let me just begin by

5 saying that as drafted, your petition for injunctive

6 relief is very very narrow, and it's cabined only to

7 asking me to enjoin the hearing that occurred on Monday at

8 9:00. I know you mention other things in there, but

9 that's the only relief you are requesting, and that

10 hearing is concluded.

11 And I know you want to enlarge your petition,

12 but I'm only going to deal with that matter because that's

13 all the Attorney Generals Office was on notice to brief,

14 so go ahead.

15 MS. DANIEL: That's correct.

16 THE COURT: So I'm going to go ahead and deal

17 with that today, that very narrow issue that you have

18 raised. If you have other things that you wish to raise,

19 you're going to have to file a separate petition for a

20 preliminary injunctive relief, and you're going to have to

21 discuss not only exactly what you're seeking but I want

22 you to discuss whether this Court has any subject matter

23 jurisdiction.

24 And secondly, whether or not the Younger

25 abstention doctrine doesn't counsel against this federal

 4
1 court from getting involved in such a fundamental state

2 function as regulating membership in the Bar. Those are

3 key issues.

4 MS. DANIEL: Yes, sir.

5 THE COURT: And I want to hear from both parties

6 before I touch on those, so that's where I am today.

7 MS. DANIEL: Yes, sir. That's correct.

8 THE COURT: All right. Okay.

9 MS. DANIEL: On the motion to continue, --

10 THE COURT: Do I understand, Ms. McNeill,

11 there's no objection to the motion to continue? That's

12 what it says in the pleading.

13 MR. TOWELL: Your Honor, Ms. Daniel had come

14 forward to us the other day requesting a joint motion or a

15 continuance, or to explore that having -- she represented

16 contacting the Court. And I know the local rules say, of

17 course, you've got to come together, and that alone, of

18 course, will not be sufficient in order to grant a

19 continuance requested. So we had no objection, but that

20 was also before we --

21 THE COURT: Well, you heard where I am today on

22 this?

23 MR. TOWELL: Yes, sir.

24 THE COURT: I think events have overtaken the

25 initial pleading that she filed, and before I get in to

 5
1 any of the allied constitutional issues, assuming there

2 are any, I want to give you a chance to respond and flesh

3 all this out so I can make an informed decision.

4 MR. TOWELL: Certainly, Your Honor.

5 THE COURT: Okay.

6 Go ahead, Ms. Daniel.

7 MS. DANIEL: Thank you.

8 THE COURT: So as far as the -- I don't want to

9 interrupt you. I want to hear you.

10 As far as your motion for a preliminary

11 injunctive relief for the August 9th hearing, that hearing

12 has been held and the opinion has been issued, so don't

13 you think that as to that narrow element that that is a

14 moot issue? I can't go back and reopen the hearing.

15 MS. DANIEL: No, sir, it's not exactly moot

16 because all they have done so far is enter a summary

17 order.

18 THE COURT: Right.

19 MS. DANIEL: There's still no opinion order

20 entered.

21 THE COURT: Right. And that's what I assume you

22 will address in your next pleading to ask for injunctive

23 relief with respect to the final disposition, you're

24 assuming that there is one, that's adverse.

25 MS. DANIEL: Yes, sir.

 6
1 THE COURT: But as far as enjoining the

2 April 9th hearing, that has already occurred and a

3 decision has already been handed down, do you follow me?

4 MS. DANIEL: I do follow you completely. Thank

5 you.

6 THE COURT: All right.

7 MS. DANIEL: I would like to respond to that in

8 just a brief way. The motion for the temporary injunction

9 was to stop that hearing, and it didn't happen so the

10 hearing took place.

11 THE COURT: Right.

12 MS. DANIEL: The summary order, which is an

13 attachment to my motion to continue, addresses what the

14 Board ordered summarily for me to do at the end of that

15 hearing, and there's some problems with that, and I'd like

16 to address that.

17 THE COURT: I'm not going to hear them this

18 afternoon because it's not part of your motion and the

19 Attorney General's Office has not had a chance to respond

20 on those. I want to give each side a fair opportunity to

21 be heard today, Ms. Daniel.

22 MS. DANIEL: All right. Well, then I'll address

23 the motion to continue, please.

24 THE COURT: I don't think there's any -- well,

25 okay, but the events have already taken place, but go

 7
1 ahead.

2 MS. DANIEL: Yes, sir. Well, I'd like to make

3 the record anyway for the motion to continue, if I can.

4 THE COURT: All right. Explain to me how you're

5 going to continue a motion to stop something that's

6 already occurred?

7 MS. DANIEL: Well, it's my understanding that

8 the federal court has the ability to put me back to the

9 status quo before the April 9th hearing if that -- if the

10 federal court decides that's appropriate. I probably have

11 to address that, as you said, in the next pleading. But

12 that is why I'm here on my motion for a temporary

13 injunction because the federal court could have the power

14 to order that that all has to be set aside and I would get

15 an opportunity for a defense again against the Bar based

16 hopefully -- now would be based on some discovery because

17 there's no discovery in these proceedings. They don't

18 even have to give you exculpatory evidence in impairment

19 proceedings.

20 So when we went into the proceedings on

21 April 9th, we had no discovery other than limited copies

22 of exhibits, but no other discovery. We had a limited

23 list of witnesses only. Can't do any depositions, or

24 anything like that, in the State Bar case.

25 What they can do, and it's under Rule 13-23 of

 8
1 the Virginia Supreme Court rules, Part 6, Section 4, they

2 can order me, as they did, to sign releases for medical

3 records for five years, and order me to submit, as they

4 did in this case, to a psychiatric evaluation. And so

5 those things took place.

6 However, there's no appeal and there's no -- not

7 only is there no appeal, if by doing those matters, if I

8 don't sign the releases, they summarily suspend my license

9 with no hearing as to whether they should summarily

10 suspend it or not because under the Rule 13-23 it's

11 written that way. It's so broad that no matter what my

12 constitutional rights are, they can take my license away

13 with no hearing if I don't give up my constitutional

14 rights and my HIPAA rights and my privacy rights, and all

15 those thins.

16 So where we stand here today is we have that summary

17 order. We don't have an opinion order. We have no

18 transcript because the Bar's -- the Bar would not let my

19 court reporter stay in the courtroom to take the hearing.

20 They only would allow their court reporter to stay in the

21 hearing to take the hearing, and she has refused to give

22 me a transcript this week, so I have no transcript yet.

23 No opinion order.

24 I have a summary suspension that's going to be

25 impending within 15 days. I'm supposed to sign these

 9
1 releases or consents, and they're both, and if I don't do

2 it they'll summarily suspend my license in my practice

3 forever because I don't have any way to appeal it.

4 And then --

5 THE COURT: I understand that from -- actually,

6 you could appeal the final decision, you just can't appeal

7 the summary order.

8 MS. DANIEL: No. There's no provision for an

9 appeal.

10 THE COURT: I think my colleague, Judge Gibney,

11 has held to the contrary.

12 MS. DANIEL: I understand that, but there's no

13 provision in the rules for an appeal for an impairment,

14 okay?

15 THE COURT: All right.

16 Now, this may all very well be grist for the

17 mill if you file another motion that includes all these

18 things, and brief it. And most importantly, most

19 importantly, addresses whether this Court has

20 jurisdiction, and if I do, whether under Younger I should

21 exercise it because almost every court in the nation, as

22 you know, has counseled against federal courts

23 intermeddling in these kind of investigative matters, but

24 this may be a different case. I'll keep an open mind.

25 It's not something for today, Ms. Daniel. Today

 10
1 is just whether or not I enjoin the hearing for the 9th of

2 April that's already occurred.

3 MS. DANIEL: I understand.

4 THE COURT: So it's a moot issue, and I so find.

5 MS. DANIEL: Yes, sir. I understand.

6 THE COURT: If you have other issues you want to

7 raise, the door to the courthouse is open and you may file

8 an appropriate pleading.

9 MS. DANIEL: Yes, sir.

10 THE COURT: But you address those jurisdictional

11 issues because they're paramount in my mind. They're the

12 first hurdle you've got to jump, okay?

13 MS. DANIEL: All right. I will do that.

14 THE COURT: All right. Okay.

15 MS. DANIEL: The only other two points for the

16 motion to continue that I'd like to put on the record, --

17 THE COURT: What are you -- what are you

18 continuing?

19 MS. DANIEL: I'm continuing this -- this hearing

20 that's not going to happen because it's already moot.

21 THE COURT: Let's go back to square one, all

22 right? It's moot. You can't continue something that's

23 moot. If it's moot, it's over.

24 MS. DANIEL: I understand.

25 THE COURT: I can't go back and redo the

 11
1 hearing.

2 MS. DANIEL: All right.

3 THE COURT: So address them, address your

4 points, and I'll hear them. Make sure you come up with

5 some authority that support all your positions, okay? An

6 attorney on instantaneous conclusion is just not enough in

7 a case like this. I want firm support for it and I'll

8 review it, all right?

9 MS. DANIEL: Okay.

10 THE COURT: I will give you a chance to be

11 heard, and I'll give the Attorney General a chance to be

12 heard.

13 MS. DANIEL: Right.

14 Well, then I will file the next motion -

15 THE COURT: You do whatever you think is

16 appropriate, Ms. Daniel.

17 MS. DANIEL: - that I've decided is appropriate

18 based on the Court's remarks, and it will include my

19 Exhibit 1 for my motion to continue today and my

20 Exhibit 2, which is my HIPAA complaint that I filed today

21 with HIPAA for a violation of my HIPAA rights.

22 THE COURT: All right. That is already a part

23 of the record. You've already filed that.

24 MS. DANIEL: Yes, sir.

25 THE COURT: It's in the record, okay?

 12
1 MS. DANIEL: Yes, sir. I just wanted to make it

2 part of this hearing.

3 THE COURT: Understood. Understood.

4 MS. DANIEL: Thank you so much.

5 THE COURT: All right, Ms. Daniel.

6 Mr. Towell, do you want to be heard any further?

7 You've prevailed. Talk me out of it.

8 MR. TOWELL: Your Honor, thank you for the

9 invitation, but I respectfully decline.

10 THE COURT: All right. Fine.

11 So we'll await the next pleading to be filed in

12 this case, and I'll address it as it's filed.

13 MS. DANIEL: Thank you, Your Honor.

14 THE COURT: Thank you for being here today. The

15 Court will stand in recess.

16 (The proceeding concluded at 2:11 p.m.)

17 REPORTER'S CERTIFICATE
I, Krista Liscio Harding, OCR, RMR,
18 Notary Public in and for the Commonwealth of
Virginia at large, and whose commission expires
19 March 31, 2020, Notary Registration Number 149462,
do hereby certify that the pages contained herein
20 accurately reflect the notes taken by me, to the
best of my ability, in the above-styled action.
21 Given under my hand this 17th day of April, 2018.

22 ______________________________
Krista Liscio Harding, RMR
23 Official Court Reporter

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