Williаm M. O‘NEILL, Plaintiff-Appellee, v. Jonathan E. COUGHLAN, Defendant-Appellant.
No. 07-3206.
United States Court of Appeals, Sixth Circuit.
Argued: Dec. 4, 2007. Decided and Filed: Jan. 9, 2008.
512 F.3d 638
Moreover, we reject Oaktree‘s argument that the collateral issue doctrine allows us to review the remand order. The collateral issue doctrine provides for appellate review of “remand orders ‘based on a substantive decision on the merits of a collatеral issue as opposed to just matters of jurisdiction.‘” See DaWalt, 397 F.3d at 399 (citing Regis Assocs. v. Rank Hotels (Mgmt.) Ltd., 894 F.2d 193, 194 (6th Cir. 1990)). Indeed, the district court‘s grant of the motion to amend the complaint and its subsequent remand of the case to state court are all part of the same jurisdictional decision and therefore the collateral issue doctrine is of no help to Oaktree. See id. (“But this exception to the ban on appellate review does not apply where, as in this case, the district court based its remand on jurisdictional grounds.” (citations omitted)); Cf. Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1028 (5th Cir. 1991) (“Whаtever the outcome of the chicken or the egg riddle of which came first, the allowance of the amendment or the remand order, our conclusion essentially renders review of whether the trial court abused its discretion by allowing the amendment a post-mortem exercise.“).
III. CONCLUSION
The Supreme Court‘s ruling in Powerex clarified the breadth of
RALPH B. GUY, JR., Circuit Judge.
Defendant Jonathan E. Coughlan, Disciplinary Counsel for the Supreme Court of Ohio, appeals from the district court‘s grant of summary judgment to plaintiff William O‘Neill in this action seeking to enjoin enforcement of three canons of the Ohio Code of Judicial Conduct. O‘Neill, a judge of the Ohio Court of Appeals at the time, was accused of violating these canons while campaigning for election to the Ohio Supreme Court in 2004. The district court concluded that enforcement of these canons would impermissibly restrict O‘Neill‘s free speech rights as guaranteed by the
ARGUED: Stephen W. Funk, Roetzel & Andress, Akron, Ohio, for Appellant. J. Michael Murray, Berkman, Gordon, Murray & Devan, Cleveland, Ohio, for Appellee. ON BRIEF: Stephen W. Funk, Roetzel & Andress, Akron, Ohio, for Appellant. J. Michael Murray, Raymond V. Vasvari, Jr., Berkman, Gordon, Murray & Devan, Cleveland, Ohio, for Appellee.
Before: GUY, MOORE, and GILMAN, Circuit Judges.
GUY, J., delivered the opinion of the court, in which GILMAN, J., joined. MOORE, J. (pp. 644-47), delivered a separate dissenting opinion.
I.
William O‘Neill was a candidate seeking election to the Ohio Supreme Court in 2004. His campaign theme was “Money and Judges Don‘t Mix.” To that end, he supported judicial campaign finance reform and refused any donation over $10. In addition to the “Money and Judges Don‘t Mix” slogan, O‘Neill‘s campaign website included the following statement: “The time has come to end the public‘s suspicion that political contributions influence court decisions. The election of Judge O‘Neill is the best step toward sending the message: ‘This Court is Not For Sale!‘”
In July of 2004, James Trakas, Chairman of the Cuyahoga County Republican Pаrty, filed a grievance with the Office of the Disciplinary Counsel. The grievance alleged that O‘Neill‘s campaign literature
Following standard procedure, the Office of the Disciplinary Counsel sent O‘Neill a letter advising him of Trakas‘s grievance. That letter stated, in part:
Please be advised that the enclosed grievance has been filed against you by James Trakas. Pursuant to Gov. Bar R. V, as referenced in Gov. Jud. R. II, the Disciplinary Counsel is required to investigate any matter filed with him or that comes to his attention. Accordingly, this office must obtain a response to such grievances, regardless of the form or ultimate suffiсiency thereof. In accordance with Gov. Bar R. V, this investigation will be confidential.
Please provide your written response on or before August 4, 2004. A copy of your reply will be sent to the grievant unless you request in writing that it not be so furnished....
Without responding to this letter, O‘Neill commenced this action in federal court alleging that the canons were unconstitutional under the
O‘Neill filed motions seeking a temporary restraining order and preliminary injunction to prevent Coughlan from enforcing the canons against him. Coughlan argued in response that the case was not ripe for review and that Coughlan was not the proper defendant. After a prompt hearing, the district court rejected the “ripeness” argument, issued a temporary restraining order, and requested additional briefing on the question of whether a preliminary injunction should be issued as well. Coughlan‘s response included both opposition to the preliminary injunction and a motion to dismiss the complaint. In his brief, Coughlan reiterated his arguments that O‘Neill‘s suit was not ripe because there had been no disciplinary action, and that he was the wrong defendant. He also argued that the injunction should not issue because O‘Neill‘s claims were not likely to succeed on the merits.
On September 14, 2004, the district court granted plaintiff‘s motion for a preliminary injunction and deferred ruling on defendant‘s motion to dismiss. Coughlan did not move for reconsideration or file an appeal; but, ten days later, filed a “motion to clarify” whether the injunction applied only to O‘Neill or to any person in the State of Ohio. In а “supplemental motion to dismiss” filed October 6, 2004, Coughlan argued for the first time that the district court should abstain from exercising its jurisdiction under Younger. The district court apparently never ruled on defendant‘s motion to dismiss.
On March 10, 2006, more than a year later, Coughlan moved to dissolve the preliminary injunction on the grounds of
II.
Under Younger abstention, absent unusual circumstances not asserted here, a federal court must declinе to interfere with pending state civil or criminal proceedings when important state interests are involved. Younger, 401 U.S. at 41; Middlesex County Ethics Comm. v. Garden State Bar Ass‘n, 457 U.S. 423, 432 (1982); Squire v. Coughlan, 469 F.3d 551, 555 (6th Cir. 2006); Sun Refining & Mktg. Co. v. Brennan, 921 F.2d 635, 638-42 (6th Cir. 1990). Younger abstention is not a question of jurisdiction, but is rather based on “strong policies counseling against the exercise of such jurisdiction.” Ohio Civil Rights Comm‘n v. Dayton Christian Sch., Inc., 477 U.S. 619, 626 (1986).
A. Waiver
Both parties acknowledge that a state can waive application of Younger abstention. Sosna v. Iowa, 419 U.S. 393, 396-97 n. 3 (1975); Ohio Bureau of Empl. Servs. v. Hodory, 431 U.S. 471, 479-80 (1977). The dispute here is whether a state waives the right to assert Younger simply by addressing the merits of the case without having raised the issue of Younger abstention. While no controlling authority has decided this precise issue, the decisions in Sosna and Hodory provide guidance concerning the relevant parameters of such a waiver. Specifically, the Court in Sosna raised the issue of Younger abstention sua sponte, but agreed to decide the case after the state urged the Court to reach the merits of the plaintiff‘s constitutional claim. 419 U.S. at 396-97 n. 3.
Similarly, Younger abstention was raised sua sponte in Hodory, but the state asked that the Court disregard Younger and decide the constitutional issue on the merits. The Supreme Court agreed to disregard Younger abstention because the state wanted a decision on the merits, explaining that:
It may not be argued, however, that a federal court is compelled to abstain in every such situation. If the State voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the State‘s own system. In the present case, Ohio either believes that the District Cоurt was correct in its analysis of abstention or, faced with the prospect of lengthy administrative appeals followed by equally protracted state judicial proceedings, now has concluded to submit the constitutional issue to this Court for immediate resolution. In either event, under these circumstances Younger principles of equity and comity do not require this Court to refuse Ohio the immediate adjudication it seeks.
Hodory, 431 U.S. at 479-80. It is instructive that in both Sosna and Hodory, the Supreme Court raised Younger abstention sua sponte well after the merits of the dispute had been argued and decided, and no suggestion was made that Younger had been waived because it was not raised earlier in the proceedings. Moreover, in both cases, the Court permitted the state to waive Younger abstention upon the state‘s clear and explicit statement that it did not want the Court to apply Younger. This indicates that it is not necessary for the issue to have been raised either in the state‘s first responsive pleading or before the state addresses the merits.
This court discussed a waiver of Younger abstention in Federal Express Corp. v. Tennessee Public Service Commission, 925 F.2d 962, 965 (6th Cir. 1991), but did not decide the precise question at issue in this case. This court held that the state defendant had not waived the argument for Younger abstention. Id. at 967. In doing so, we concluded that the state was not required to raise abstention in its pleadings, particularly since abstention may be raised by the court sua sponte. Id. at 966-67. The defendant had argued for abstention, but also moved for consolidation of the hearing on the motion for preliminary injunction with the trial on the merits. The defendant conceded that abstention did not apply at the hearing, but later retracted that concession in a supplemental filing. The court explained that the defendant had “persistently argued for abstention,” and that the motion to consolidate hearing was “a means of avoiding duplicative proceedings rather than a request for the court to reach the merits of the constitutional issue.” Id. at 967.
According to O‘Neill, Federal Express implies that any request that the federal court reach the merits of the lawsuit constitutes waiver of any argument for Younger abstention. Such an interpretation stretches the holding in Federal Express too far. This court merely restated the principle explained in Hodory and in Dayton Christian Schools that a state may waive an argument for Younger abstention by affirmatively urging the fedеral court to proceed to the merits of a constitutional claim despite the possible application of Younger abstention. There was no such explicit waiver of abstention in Federal Express.
In another case, this court found that an argument for Younger abstention had not been waived even though the issue had not been raised by any party in the district court. Beeman v. Stafford, No. 94-3634, 1995 WL 456367, at *4 (6th Cir. Aug. 1, 1995) (unpublished). This court affirmed
Accordingly, we find that Coughlan‘s failure to assert Younger abstention before arguing for dismissal of the claims on the merits did not constitute waiver of the right to seek dismissal of the complaint on the grounds of Younger abstention.
B. Merits of Younger Abstention
Younger abstеntion requires a federal court to abstain from granting injunctive or declaratory relief that would interfere with pending state judicial proceedings. Younger, 401 U.S. at 40-41. We look to three factors to determine whether a court should abstain from hearing a case under the Younger doctrine: “(1) there must be on-going state judicial proceedings; (2) those proceedings must implicate important state interests; and (3) there must be an adequate opportunity in the state proceedings to raise constitutional challenges.” Sun Refining, 921 F.2d at 639. O‘Neill contested only the first factor, arguing that there was no ongoing state judicial proceeding because the filing of the grievance was a predicate to, but did not start, a state judicial proceeding.2
We reject O‘Neill‘s argument, as the district court did, because the Ohio Supreme Court has held that the filing of a grievance is the beginning of the judicial process. Hecht v. Levin, 66 Ohio St.3d 458, 613 N.E.2d 585, 588 (1993). In Hecht, the court was asked to decide whether the filing of a grievance under Gov. Bar R. V3 is part of a judicial proceeding in the context of a libel and slander lawsuit. If the filing of a grievance is part of a judicial proceeding, then the griever is immune from libel and slander charges. The court concluded that the filing of a grievance is part of a “judicial proceeding” because “such a filing initiates the purely judicial disciplinary procedure created by this court pursuant to Article IV of the Ohio Constitution.” Id. The court recognized that a grievance is subject to investigation
Despite this clear statement that judicial proceedings begin with the filing of a grievance, O‘Neill argues that Hecht is not controlling because it determined that the filing of a grievance begins the judicial process in the context of a lawsuit, not a disciplinary action. We are not persuaded that the different context requires us to disregard Hecht‘s unambiguous holding. Accordingly, the district court should have refrained from exercising its jurisdiction in this case.
The injunction ordered by the district court is DISSOLVED, and the judgment in favor of O‘Neill is VACATED.
KAREN NELSON MOORE, Circuit Judge, dissenting.
I dissent because I believe that Coughlan waived application of Younger abstention and that, even in the absence of this waiver, the facts of the case did not warrant abstention. Coughlan initially argued that O‘Neill‘s claim was not ripe; only after the district court rejected that argument and ruled against Coughlаn on the merits of the preliminary injunction did he raise the issue of Younger abstention. Although a party to a civil proceeding may raise inconsistent legal arguments, in the instant case Coughlan did not make a ripeness argument and, in the alternative, an argument for abstention. Instead, the sequential timing of Coughlan‘s motions placed O‘Neill in a catch-22. Consider the situation facing future subjects of Ohio‘s disciplinary proceedings under the precedent set by this case. If plaintiffs seek vindication of their constitutional rights in federal сourt too early, then their cases will be dismissed for lack of ripeness. If these individuals bring federal suits upon ripening of the claims, then their cases will also be dismissed, this time under the Younger abstention doctrine. The majority opinion thus effectively forecloses access to the federal courts for individuals who claim that Ohio‘s Rules for the Government of the Bar and of the Judiciary are unconstitutional.
I disagree with the majority‘s interpretation of precedent to require a conclusion that Coughlan did not waive apрlication of Younger abstention. The relevant Supreme Court decisions discussing waiver hold that a federal court may raise the issue of Younger abstention sua sponte and that an explicit expression of the state‘s desire to submit to federal jurisdiction counsels against abstention. Brown v. Hotel & Rest. Employees & Bartenders Int‘l Union Local 54, 468 U.S. 491, 500 n. 9, 104 S.Ct. 3179, 82 L.Ed.2d 373 (1984) (observing that: “[t]he New Jersey Attorney General ... does not, however, press the Younger abstention claim before this Court, and instead submits to the jurisdiction of this Court in order to obtain a more expeditious and final resolution of the merits of the constitutional issue“); Ohio Bureau of Empl. Servs. v. Hodory, 431 U.S. 471, 480 (1977) (exploring the applicability of Younger abstention sua sponte and concluding that “[i]f thе State voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the State‘s own system“); Sosna v. Iowa, 419 U.S. 393, 396 n. 3 (1975) (explaining that the Court had asked the parties to brief the issue of Younger abstention and received confirmation that both parties wished a determination on the merits). I agree with O‘Neill
Even if Coughlan had not waived application of Younger abstention, I do not believe that an ongoing state judicial proceeding existed as required under the first prong of the test set forth in Middlesex County Ethics Committee v. Garden State Bar Ass‘n, 457 U.S. 423, 432 (1982). The Ohio Supreme Court decision in Hecht v. Levin, 66 Ohio St.3d 458, 613 N.E.2d 585 (1993), should be limited to the facts of the case, which involved a libel and slander action brought by an attorney against an individual who had filed a complaint regarding the attorney with a local bar association. Id. at 586. The Ohio Supreme Court had posed the question in that case narrowly: “We must decide in this case whether filing a grievance with a local bar association is a ‘judicial proceeding’ within thе meaning of Surace [an Ohio Supreme Court case holding that statements made in judicial proceedings have immunity against defamation claims].” Id. at 588. The court based its holding that statements made in the course of disciplinary proceedings enjoy immunity against defamation claims in large part on public-policy considerations. Id. at 589. Accordingly, we should not extend the holding of Hecht to hold that the filing of a grievance initiates a pending judicial proceeding for the purposes of Younger abstention. Instead, the facts of the instant case closely resemble those in two Fourth and Fifth Circuit cases, which declined to apply Younger abstention. In Telco Communications, Inc. v. Carbaugh, 885 F.2d 1225, 1228 (4th Cir. 1989), the Fourth Circuit held that Younger abstention was not required “where state proceedings were in a preliminary stage and where the state had imposed a prior restraint upon protected speech.” In Louisiana Debating & Literary Ass‘n v. City of New Orleans, 42 F.3d 1483, 1490 (5th Cir. 1995), the Fifth Circuit followed the logic of Telco, when a city Human Relations Commission had issued letters to private clubs regarding complaints filed against them but no other administrative activity had ensued. No Sixth Circuit case is exactly on point regarding the question whether the Disciplinary Counsel‘s issuing of a letter notifying a judge or attorney of a grievance filed against him or her catalyzes a pending state proceeding for purposes of Younger abstention.1
In addition, I think that the circumstances of this case do not satisfy the third
Finally, a decision by the district court to abstain under Younger would have been undesirable as a matter of judicial policy. In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the U.S. Supreme Court found Younger abstention unwarranted in a federal suit brought by individuals claiming a due-process right to a judicial hearing on whether probable cause existed for pretrial detention. Id. at 108 n. 9. The Court determined that the district court “injunction was not directed at the state prosecutions as suсh, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution.” Id. Likewise, the harm in the instant case is not merely the disciplinary action that would accompany a determination that O‘Neill violated the Judicial Canons, but also the disciplinary procedures themselves that were conducted twelve weeks prior to the Ohio judicial elections. At a crucial moment in his candidacy, O‘Neill suffered irreparable injury becаuse of the chilling effect on his exercise of his
disciplinary proceeding against O‘Neill implicate constitutional issues distinct from the question of whether he violated the Judicial Canons. See Habich v. City of Dearborn, 331 F.3d 524, 531 (6th Cir. 2003) (finding abstention inappropriate under Gerstein); Flynt v. Leis, 574 F.2d 874 (6th Cir. 1978) (same), rev‘d on other grounds, 439 U.S. 438 (1979).
In conclusion, I believe that the district court decision in this case offers a paradigmatic example of the appropriate exercise by a federal court of its equitable jurisdiction when declining to еxercise federal court subject-matter jurisdiction would position the plaintiff “between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a [disciplinary] proceeding.” Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).
I respectfully dissent.