Litigation Breeds Litigation + Follow-Up to Lawsuit Against Pro-Palestinian / Anti-Semitic Protesters Outside Synagogue

From Friday's decision by Judge Shalina Kumar (E.D. Mich.) in Susselman v. Attorney Grievance Comm'n (for more on the Sixth Circuit's decision rejecting the underlying lawsuit against the protesters, see this post):

Plaintiffs Marc Susselman … sue[s] the Michigan Attorney Grievance Commission ("[AGC]"), its Board of Commissioners, and Michael Goetz, in his official capacity as the Administrator of the [AGC] (collectively, "Defendants"), alleging violations of [his] First and Fourteenth Amendment rights….

In 2019, Susselman learned that a group of protesters were in front of Beth Israel synagogue holding signs with messages that included "Jewish Power Corrupts", "Resist Jewish Power", and "No More Holocaust Movies." These protests had been occurring every Saturday morning since 2003, and Susselman felt compelled to file suit in federal court seeking an injunction "placing reasonable time, place and matter restrictions on [the protesters'] conduct, e.g., requiring that they be a certain distance from the synagogue property; that they be prohibited from protesting during the time period when the Sabbath service was being conducted; and that the number of protesters, and the number of signs they used, be limited to a reasonable number." …

Defendants in that case moved to dismiss the complaint asserting plaintiffs did not have standing to sue, and the protestors' conduct was protected by the First Amendment. Judge Roberts ultimately agreed with defendants that plaintiffs did not have standing to sue because their emotional distress did not constitute a concrete injury, and defendants' conduct was protected by the First Amendment "even if it disturbs, is offensive, and causes emotional distress." The case was dismissed.

Susselman appealed Judge Roberts' decision dismissing the case, challenging her ruling that plaintiffs' emotional distress did not constitute a concrete injury. The Sixth Circuit reversed Judge Roberts' ruling that plaintiffs did not have standing, but ruled that the protestors' signs were protected by the First Amendment….

Defendants moved for attorney fees on the basis that the lawsuit was frivolous, and Judge Roberts awarded fees in the amount of $158,721.75 to be paid jointly and severally by plaintiffs and Susselman. Susselman, convinced that Judge Roberts' rulings in the case were "motivated either by anti-Semitic sentiments, or by anti-Israel, pro-Palestinian sentiments, or by both…." appealed Judge Roberts' decision. The Sixth Circuit affirmed the attorney fee award, agreeing the lawsuit was frivolous and found that the record did not support Susselman's claims that Judge Roberts was biased against his clients. Susselman then filed a petition for certiorari with the Supreme Court, which was denied.

On October 18, 2022, Susselman filed a formal complaint against Judge Roberts with the Sixth Circuit. In his complaint he asserted that "by virtue of the statements in her decisions which, taken together, had the distinct appearance of being anti-Semitic and/or anti-Israel, she had violated the Canons of the Code of Conduct of United States Judges.["] Chief Judge Sutton dismissed Susselman's complaint on September 7, 2023. Susselman filed a petition to have his complaint be reviewed by a judicial counsel of the Sixth Circuit, and on March 26, 2024, the court issued an order affirming Chief Judge Sutton's dismissal of the complaint against Judge Roberts.

Approximately one month after the Sixth Circuit upheld the dismissal of his complaint against Judge Roberts, the operative Request for Investigation ("Request") at issue in the present case was filed against Susselman by Jane Doe, a non-party who lived out of state. The Request accused Susselman of violating several Michigan Rules of Professional Conduct based on statements he made in his appellate briefs related to the Beth Israel protests. On July 3, 2024, the AGC issued its Request pursuant to Jane Doe's complaint. Susselman filed his answer to the Request on August 19, 2024, and appeared before the Commission on October 23, 2024, to give a sworn statement regarding the Request.

Susselman takes issue with the fact that the AGC issued a Request in this instance because Jane Doe does not reside in Michigan, has never been represented by him, and was not involved in the legal proceedings or events which formed the basis for her Request. After his appearance before the Commission, Susselman emailed Sarah Lindsey …, General Counsel of the Commission, requesting the disclosure of the following information:

I would be curious to know how many Requests for Investigation have been filed with the Michigan Attorney Grievance Commission in the last five years by individuals who do not live in Michigan, and who have never been represented by the Michigan attorney against whom the complaint was filed; how many of those were referred to the attorney in question requiring a response, and how many of such attorneys were thereafter required to provide a sworn statement. I would appreciate your providing me with this information, without divulging the identities of either the complainant(s) or the attorney(s) in question.

Lindsey allegedly responded to Susselman's email request as follows:

As to your request, we do not keep such statistics. Further, our investigations are privileged from disclosure and confidential (see MCR 9.126). So, I could not produce any such information to you even if we had any way to obtain it. Moreover, before formal charges are filed, the Commission has no discovery obligations. After formal charges are filed, discovery obligations are limited to what is provided in MCR 9.115.

Unsatisfied with this response, Susselman filed the present suit against defendants in March 2025, with the operative amended complaint being filed on April 23, 2025. Susselman, who is Jewish, believes that by issuing the Request, the AGC is weaponizing its authority and the Rules of Professional Conduct against Jewish attorneys. He asserts that these Requests are being used to "muzzle and penalize" him for speaking out against judicial actions he feels are anti-Semitic and are a violation of his right of free speech under the First Amendment, and of equal protection under the Fourteenth Amendment. He requests both declaratory and injunctive relief.

Specifically, Susselman asks the Court to enter a declaratory judgment that defendants "are violating [his] rights under the Equal Protection Clause [and right of freedom of speech under the First Amendment] by requiring him to respond to [the] Request for Investigation and considering future disciplinary action against him for purportedly violating the Michigan Rules of Professional conduct, and issue an injunction precluding [defendants] from proceeding with disciplinary action against [him] based on [the] Request." Susselman alleges that no formal charges have been issued by the Commission regarding the pending Request as of the date he filed suit in this Court.

So we have (1) the lawsuit against the protesters leading to (2) a motion for attorney fees leading to (3) Susselman's complaint against the judge who awarded the fees leading to (4) Doe's grievance against Susselman leading to (5) Susselman's lawsuit against the Attorney Grievance Commission. And here's the result: The federal court concludes it must abstain under Younger v. Harris (1971) and Middlesex County Ethics Comm'n v. Garden State Bar Ass'n (1982), which generally blocks federal courts from interfering with pending state attorney disciplinary proceedings (and a later Sixth Circuit decision applying those precedents); Susselman must raise his claims in that disciplinary process, rather than trying to use the federal courts to avoid the process. An excerpt:

The Court finds that Susselman does not meet his burden of showing that the state law bars presentation of his constitutional claims. Here, like the plaintiff in Squires, Susselman makes no allegations that he raised his constitutional claims at any point during the investigatory proceedings. (i.e., in his Answer to the Request, at the hearing before the Commission, in his email requests with Lindsey). Contrary to Susselman's assertion that Lindsey "admitted in her email to [him] [that] any constitutional claim raised by him in a prospective disciplinary proceeding would be subject to the rules of discovery under MCR 9.115[,]"and therefore barred, there are no factual allegations that he raised constitutional claims before the Commission or was told he could not do so. Instead, he alleges that he emailed Lindsey seeking information about requests filed by non-Michigan residents without Michigan counsel, whether such requests required an answer from the attorney at issue, and whether a sworn statement was required. Lindsey denied his request, stating that the AGC did not possess the information and that discovery rules limited its disclosures. That appears to be the end of the exchange, and nowhere does the complaint allege that Susselman raised constitutional claims.

Likewise, Susselman pleads no facts showing that the investigation proceedings denied him, or will deny him, an adequate opportunity to raise his equal protection concerns or that the discovery rules prevent him from obtaining information to support a constitutional challenge. Instead of presenting his concerns to the AGC, he took his challenges directly to federal court to circumvent the AGC's procedures and obtain the information "pursuant to discovery in federal court." It is clear that Susselman did not raise his constitutional claims during the pre-complaint stage of the state proceedings, and he cannot show that defendants would have refused to consider them.

Moreover, the Sixth Circuit has assessed Michigan lawyer disciplinary proceedings at great lengths and concluded that such proceedings provide "many opportunities for a lawyer to raise constitutional challenges and there is nothing in the Court Rules or procedures that clearly bars a lawyer from doing so." Indeed, the Sixth Circuit has stated that it is "confident that the Michigan Supreme Court takes constitutional challenges to its regulations very seriously." …

Here, by the way, is the closing paragraph from Sixth Circuit's 2023 decision on the award of attorney fees to the protester defendants:

Lastly, Susselman, of his own accord, accuses the district court of antisemitism. The basis for this serious allegation? A "series of questionable rulings." Not content to stop there, Susselman accuses Judge Clay of racially motivated hypocrisy too. Well-founded allegations of judicial bias, we appreciate, deserve a serious-minded accounting. But Susselman grounds his allegations almost entirely in adverse rulings, which rarely "constitute a valid basis for a" claim of judicial bias. The only external source for the allegation is a study supposedly finding higher-than-average rates of antisemitic attitudes in the African American community. From this, Susselman concludes that the district judge—who is African American—must have been biased against the congregants. This argument rests on offensive, essentialist stereotypes. It involves enormous logical leaps. And it disserves Susselman's client by distracting from the merits of the fee issue. If this is the quality of Susselman's advocacy, the fee award hardly comes as a surprise. Susselman's bias arguments "find no support in the record," and are "not well received."

You can see Susselman's 2022 complaint against Judge Roberts at pp. 33a-76a of this PDF.