Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Sanford BERGER, Plaintiff-Appellant,
v.
The SUPREME COURT OF OHIO, Chief Justice Frank Celebrezze,
Clarence Brown, William B. Brown, James P. Celebrezze,
Robert Holmes, Ralph Locher, A. William Sweeney, Angelo
Gagliardo, Judge Henry T. Webber, State of Ohio, Richard
Celeste, Defendants-Appellees.
No. 87-3935.
United States Court of Appeals, Sixth Circuit.
Oct. 31, 1988.
Before NATHANIEL R. JONES and RYAN, Circuit Judges, and THOMAS G. HULL, Chief District Judge.*
PER CURIAM.
Sanford J. Berger, the plaintiff-appellant, filed this suit on June 11, 1984, in the United States District Court for the Southern District of Ohio, seeking preliminary and permanent injunctive relief and a declaratory judgment holding Canon 7B(1)(c) of the Ohio Code of Judicial Conduct ("Canon 7B(1)(c)" or "the Canon") unconstitutional. The district court denied Berger's motion for preliminаry injunctive relief on September 14, 1984, Berger v. The Supreme Court of Ohio, et al.,
Upon consideration, we find no reason to disturb the district court's judgment and hereby affirm.
I.
In 1984, when this lawsuit was filed, Berger was a candidate for the office of Judge of the Cuyahoga County Court of Common Pleas, Division of Domestic Relations. As a part of his campaign, Berger wished to publicly discuss his views, make certain pledges and promises regarding reform of practices of the office he sought, and publicly criticize what he рerceived to be deficiencies in the administration of the Domestic Relations Court. See Berger I,
The district court held that Berger was not entitled to a preliminary injunction since he had not shown that he was likely to succeed on the merits of his case, i.e., he was not likely to show that Canon 7B(1)(c) was unconstitutional. In granting final summary judgment in favor of the defendants, the district court сoncurred in the reasoning of its earlier decision, holding that the Canon could be interpreted so as to avoid constitutional infirmities under the first and fourteenth amendments to the United States Constitution. The distriсt court also denied Berger's motion for attorneys fees, holding that he was not a "prevailing party" within the meaning of 42 U.S.C. Sec. 1988 (1982). Berger appeals the district court's summary judgment in favor of the defendants аs well as the denial of his request for attorneys fees.
II.
The focus of this appeal is Canon 7B(1)(c) which provides:
(1) A candidate, including an incumbent judge, for a judicial office:
(c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce his views on disputed legal or political issues; or misrepresent his identity, qualifications, present position, or other fact.
A candidate who violates this Canon is subject to disciplinary proceedings under the Rules for the Government of the Judiciary of Ohio.
Berger claims that the Canon impermissibly infringes upon a judicial candidate's first amendment rights to free speech. He further claims that the Canon violates his right to equal protection under the fourteenth amendment because it applies only to candidates fоr judicial office. Finally, Berger argues that the Canon is void for vagueness. We reject each of these contentions.
A.
When the constitutional validity of a statute is drawn in question, it is a cardinal principle that federal courts should first determine whether a reasonable construction of the statute may avoid the constitutional question. See Ashwander v. TVA,
Applying this analysis to Canon 7B(1)(c), which has not beenauthoritatively construed by the Ohio Supreme Court, we conclude that the Canon is not facially violative of the first amendment. On its face, the Canon does not infringe upon a candidate's first amendment right to free speech because it "does not prohibit critiсisms of judicial administrations or incumbents which are not untruthful or misleading." Berger II, slip op. at 4. Rather, as the district court noted, "the rule recognizes that judges are frequently called to adjudicate casеs squarely presenting social and political issues," and seeks to protect the state's compelling interest in ensuring judicial integrity and impartiality. Id. at 4-5. Since the Canon does not prohibit a judicial сandidate from running a truthful, upright and vigorous campaign, we hold that it does not violate the first amendment on its face.
For similar reasons, we find that the Canon, as applied to Berger, does not violate the first amendment. As we noted earlier, Berger sought only to publicly discuss his views and make certain pledges and promises regarding reforms in the administration of the Domestic Relations Court. See Berger I,
B.
Berger next contends that the Canon violates the equal protection clause of the fourteenth amendment because it only applies to candidates for judicial office. Although the Canon does single out judicial candidates for diffеrent treatment, we agree with the district court that "[t]he very purpose of the judicial function makes inappropriate the same kind of particularized pledges and predetermined cоmmitments that mark campaigns for legislative and executive office." Berger I,
C.
Berger argues thаt Canon 7B(1)(c) violates the due process clause of the fourteenth amendment because it is void for vagueness. The test for determining whether an enactment is void for vagueness is whether the prоvision gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited. Grayned v. City of Rockford,
Upon consideration, wе agree with the district court that Canon 7B(1)(c) is not impermissibly vague. Because the disciplinary sanctions attendant upon a violation of the Canon do not include criminal penalties, the stringent notice requirements that are applicable in the criminal context do not apply here. Moreover, while the language of the Canon certainly leaves some room for interpretаtion, we find that the rule adequately notifies judicial candidates of what kinds of speech and/or conduct are proscribed. Therefore, we conclude that the district court properly disposed of Berger's vagueness challenge.
III.
Berger also contends that the district court abused its discretion in denying his request for attorneys fees pursuant to 42 U.S.C. Sec. 1988.
Under section 1988, only a "prevailing pаrty" may recover attorneys fees. The Supreme Court has stated that a "prevailing party" is one who "receive[s] at least some relief or the merits of his claim...." Hewitt v. Helms,
In the case at bar, Berger obtained no judicially decreed relief on the merits of his claims. Moreover, as the district court found, Berger has not demonstrated that the defendants altered their conduct toward him because of this lawsuit. See Berger II, slip op. at 9. Under these circumstances, the district court correctly determined that Berger was not a "prevailing party" within the meaning of 42 U.S.C. Sec. 1988.
IV.
For the above stated reasons, we hereby AFFIRM the judgment of the district court.
Notes
Honorable Thomas G. Hull, United States District Court for the Eastern District of Tennessee, sitting be designation