ROBERT BUTLER, W. THOMAS GAITHER, et al., Plaintiffs-Appellees, versus THE ALABAMA JUDICIAL INQUIRY COMMISSION, RANDALL L. COLE, in his official capacity, et al., Defendants-Appellants.
No. 00-14137
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
(March 27, 2001)
D. C. Docket No. 00-00976 CV-D-N
Before EDMONDSON, HILL and GIBSON*, Circuit Judges.
Appeal from the United States District Court for the Middle District of Alabama
* Honorable John R. Gibson, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
The Constitution of the United States of America is the supreme law of this country. Both state courts and federal courts have the authority and the duty to enforce the federal Constitution. This case is one in which the federal courts were invited to become involved in a controversy that was already before a state court and also invited to stop the state court proceeding. So, questions of federalism and abstention are presented.
Justice Harold See, an Associate Justice of the Alabama Supreme Court, attacks a state judicial canon adopted and approved by the state supreme court. He has asked a federal court to declare the canon invalid under the federal Constitution.1 Because great concerns of comity and federalism tower over this case, we must proceed cautiously. As federal judges, we will interfere with the state proceeding only if it is clear to us that the state forum is inadequate to hear Justice See‘s challenges based on the United States Constitution. Because we, at this time, are uncertain about the adequacy of the state forum, we are glad to ask the Supreme Court of Alabama to explain some Alabama law to us. See Lehman Bros. v. Schein, 94 S. Ct. 1741, 1745 (1974) (Rehnquist, J., concurring)
I.
The state of Alabama has developed a comprehensive system to regulate its elected judicial officials.
The Alabama Constitution charges the state‘s highest court with the responsibility of developing and implementing the ethical rules that govern state judges.
The Alabama Constitution vests enforcement of the state‘s Canons of
As we understand Alabama law, the Court of the Judiciary is a court of limited jurisdiction that operates much like other state trial courts. The court has authority to hear complaints filed by the JIC and may discipline a judge for
During his campaign for Chief Justice of the Alabama Supreme Court, Justice See made comments about another candidate‘s record. The comments are alleged to have violated Canon 7(B)(2) and Canon 2(A). A majority of the JIC agreed that a reasonable basis existed to charge Justice See with violating the judicial code. The JIC filed a 3-count complaint against Justice See in the Court of the Judiciary. Pursuant to the Alabama Constitution, Justice See was immediately disqualified from judicial work until the court decided his case.
Justice See made no response to the complaint filed against him with the Court of the Judiciary. Instead, Justice See, three days later, filed a complaint against the JIC in the United States District Court in the Middle District of Alabama. He alleged that the pertinent state judicial canons (both facially and as
II.
The district court‘s injunction of the ongoing state ethical proceedings raises questions under Younger v. Harris, 91 S. Ct. 746 (1971). Younger and its progeny reflect the longstanding national public policy, based on principles of comity and federalism, of allowing state courts to try cases -- already pending in state court -- free from federal court interference. 91 S. Ct. at 750. In general, the law on this point is clearly established. See, e.g., Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712, 1724 (1996); Ohio Civil Rights Comm‘n v. Dayton Christian Sch., Inc., 106 S. Ct. 2718, 2722 (1986); Old Republic Union Ins. Co. v. Tillis Trucking Co., Inc., 124 F.3d 1258, 1263 (11th Cir. 1997). As the Court recognized in Younger, “the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions.” Id. at 751.
The Supreme Court also has addressed already the Younger doctrine in the context of state disciplinary proceedings, saying that “[t]he importance of the state interest in the pending state judicial proceedings and in the federal case calls Younger abstention into play.” Middlesex County Ethics Comm. v. Garden State Bar Assoc., 102 S. Ct. 2515, 2522-23 (1982). Middlesex sets out three benchmarks to guide the application of abstention: “first, do state bar disciplinary hearings within the constitutionally prescribed jurisdiction of the State Supreme Court constitute an ongoing state judicial proceeding; second, do the proceedings implicate important state interests; and third, is there an adequate opportunity in the state proceedings to raise constitutional challenges.” Id. at 2521 (emphasis in original).
The district court concluded, and the parties do not dispute, that the first two elements are satisfied here. The parties disagree, however, about whether the state proceedings in the Court of the Judiciary provide an adequate opportunity for Justice See to raise his federal constitutional challenges. If the state forum is an
Justice See bears the burden to establish that the state procedures are inadequate. Pennzoil Co. v. Texaco, Inc., 107 S. Ct. 1519, 1528 (1987). “Minimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal constitutional rights.” Middlesex County, 102 S. Ct. at 2521 (emphasis in original). See also Texaco, 107 S. Ct. at 1528 (“[W]hen a litigant has not attempted to present his federal claims in related state-court proceedings, a federal court should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary.“).
As the Supreme Court has advised, the “pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims. . . .” Middlesex County, 102 S. Ct. at 2521, quoting Moore v. Sims, 99 S. Ct. 2371, 2380 (1979). In the present case, the district court concluded that no adequate state forum existed in which Justice See might raise his constitutional challenges. The district court also questioned the ability of the Alabama judicial system to consider objectively the merits of this dispute.5
Middlesex County provides a useful analogy to this case. In that case, a lawyer was charged with violating New Jersey ethics rules. The New Jersey ethics system operated much like the Alabama system: the state supreme court adopted the ethics rules; the ethics committee, composed of attorneys and non-attorneys, reviewed complaints, made a recommendation, and referred the case to a disciplinary review board for a decision; and review of the board‘s decision was to the New Jersey Supreme Court.
The Middlesex lawyer made no response to the state proceedings. Instead, the lawyer filed an action in federal court challenging the disciplinary rules as violative of the First Amendment. The district court dismissed based on Younger, and the Supreme Court affirmed. In concluding that adequate opportunity existed for the plaintiff to raise his challenges in the New Jersey court system, the Supreme Court noted the “unique relationship” shared between the state supreme court and the ethics committee. Id. at 2523. Unlike the case here, however, the Supreme Court in Middlesex also had actual evidence that an adequate forum existed: before the Supreme Court‘s decision, the New Jersey Supreme Court had sua sponte considered and resolved the constitutional issue raised by the ethics charge.
Like the plaintiff in Middlesex, Justice See failed to respond to the complaint filed by the JIC and failed even to attempt to raise a federal constitutional challenge in the state proceedings. See Middlesex County, 102 S. Ct. at 2523. Also, Justice See points to nothing that now convinces us that the Court of the Judiciary could not have considered constitutional challenges to the rules they were charged with enforcing. As in Middlesex, the unique relationship between the Alabama Supreme Court and the Court of the Judiciary leads us to believe that an adequate state forum might exist to consider Justice See‘s constitutional claims.
Justice See argues that because the Court of the Judiciary is a court of limited jurisdiction, it cannot adjudicate federal constitutional issues. He relies on a line of Alabama cases that say probate courts, as courts of limited jurisdiction, cannot consider constitutional issues. See Docena Fire Dist. v. Rucker, 564 So. 2d 422, 424 (Ala. 1990). Perhaps the reasoning of these cases may be extended to prevent the Court of the Judiciary from considering constitutional issues. To define the Court of the Judiciary‘s power in this way, however, would be not to follow existing Alabama law, but to extend the existing Alabama case law; an extension that we are slow to make without seeking guidance from Alabama. And we observe that the Alabama Supreme Court has signaled that parties may possibly
And even if the Court of the Judiciary itself cannot decide federal constitutional questions, maybe the procedural law governing the Court of the Judiciary will allow litigants the opportunity to seek, in the state supreme court, interlocutory review from certain orders.6 See generally Ohio Civil Rights Comm‘n, 106 S. Ct. at 2724 (“It is sufficient. . . that constitutional claims may be raised in state-court judicial review of the administrative proceeding.“). Because the Alabama Rules of Civil Procedure seem to apply to Court of the Judiciary proceedings, perhaps Justice See could have moved to dismiss the case in the Court of the Judiciary based on his constitutional objections to the charges. See
That certain members of the Alabama Supreme Court once approved the judicial canons now in dispute means little to us. We feel confident that a state supreme court can adequately consider the merits of federal constitutional challenges to the judicial canons that the state supreme court passed. See, e.g., Middlesex County, 102 S. Ct. at 2523 (recognizing that New Jersey Supreme Court properly considered constitutionality of ethics rule approved by state supreme court); In re Chmura, 608 N.W. 2d 31 (Mich. 2000) (state supreme court reviewing constitutionality of judicial canon passed by state supreme court five years earlier).
If the procedural laws governing the Court of the Judiciary permit a reasonably speedy review of federal constitutional issues, either before the Court of Judiciary itself or through review by a higher state court, then the federal court must defer to the state process.7
III.
Justice See contends that even where state remedies are available, federal
The post of Justice of the Supreme Court of Alabama is not merely a job to which some person might have a right as personal property. Under the law, it is a state office provided by the people of Alabama, provided not for the benefit of the officeholder, but as a public necessity and a means of public service for those persons fortunate enough to be entrusted temporarily with it. Most important, the duties of that office are defined by Alabama law. Justice See, having been charged by a majority of the JIC with an ethics violation during campaigning, has been temporarily disqualified from working at his elected position pending the outcome of the investigation.8 A temporary disqualification seems to be demanded by the words of the state constitution, a constitution which Alabama judges -- including Justice See, as an officer of the court -- have sworn to uphold. And even though Justice See might be currently unable to serve through work, the people of Alabama who elected Justice See have collectively spoken through their constitution, which seems to require disqualification in this situation. In the light
Also, while we today make no decision about the constitutionality of Alabama‘s judicial canons, we doubt that Canon 7(B)(2) patently or fragrantly violates the Constitution “in every clause, sentence, and paragraph, and in whatever manner and against whomever an effort might be made to apply it.” Younger, 91 S. Ct. at 755. We recognize the importance of protecting political speech, but as the Supreme Court has noted, “the existence of a ‘chilling effect,’ even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action.” Younger, 91 S. Ct. at 754. Given the preexisting state proceeding, any federal constitutional problems that Alabama‘s judicial canons present should be addressed and resolved by the Alabama court system if that system can do it.
IV.
- IN A PROCEEDING BEFORE THE ALABAMA COURT OF THE JUDICIARY, CAN A DEFENDANT RAISE AND HAVE DECIDED A CONSTITUTIONAL CHALLENGE TO A JUDICIAL CANON, EITHER AT THE COURT OF THE JUDICIARY OR THROUGH DIRECT REVIEW TO THE SUPREME COURT OR BY OTHER MEANS?
- IF SO, HOW DO THE PROCEDURAL RULES GOVERNING THE COURT OF THE JUDICIARY PERMIT A REASONABLY SPEEDY DECISION ON FEDERAL CONSTITUTIONAL ISSUES?
- IN A PROCEEDING BEFORE THE ALABAMA COURT OF THE JUDICIARY, CAN THAT COURT OR A HIGHER COURT GRANT,
IN THAT PROCEEDING, A STAY OF THE JUDGE‘S DISQUALIFICATION PENDING THE OUTCOME OF THAT PROCEEDING OR THE OUTCOME OF THE FEDERAL CONSTITUTIONAL CHALLENGE POSED IN THAT PROCEEDING?
Our phrasing of these certified questions is meant to restrict, in no way, the Alabama Supreme Court‘s response to the questions or its analysis of the state law problems posed by this case. See City of Marietta v. CSX Transp., Inc., 196 F.3d 1300, 1309 (11th Cir. 1999); Edmonds v. Bronner 864 F.2d 752, 753-54 (11th Cir. 1989). We seek clarification, in the light of what we have written today, of the applicable state law; and the questions are a guide. The more information that the state supreme court can provide to us, the better we will be able to resolve the abstention problem and possibly the merits. To assist the Alabama Supreme Court in its consideration of this case, the briefs of the parties and amici curiae will accompany this certification.
We hope that the Alabama Supreme Court -- if it chooses to answer -- will be able to answer our questions expeditiously. See generally Lehman Bros, 94 S. Ct. at 1744. We retain jurisdiction over the case while the Alabama Supreme Court considers the certified question; so we can rule on the abstention issue, and
CERTIFIED QUESTIONS.