*2 BARKETT, Before BIRCH and Circuit Judges, HENDERSON, Senior Circuit Judge.
BIRCH, Judge: Circuit appeal by This is an a former circuit court judge in Aabama from the issuance of a permanent injunction him, as well as office, permanently enjoin- his successors in them from members of the public divorce trial convened in the Aabama, Sixth Judicial Circuit absent a judicial prior determination that their particular outweighed by interest trial is specifically compelling identified state in- terest. The district court also awarded the plaintiffs one hundred dollars damages against judge the state court both his capacities. individual and official follow, For the reasons that we REVERSE damages judgment, perma- VACATE the injunction, nent and REMAND with instruc- judgment tions to enter for the state court judge.
I. BACKGROUND
Caring Family
Concerned Citizens for a
Court,
(“CCCFC”),
Inc.
one of the named
plaintiffs in
organized
as a
nonprofit organization under Aabama law
1990;
incorporated
plain-
and was
in June of
Glynnie
tiff
B. Simmons is one of the found-
Jr.,
Conger,
ers of CCCFC.
Paul S.
defendant,
was an Aabama Circuit Court
Judge the Sixth Judicial District
Tusca-
County
January
loosa
until
griev-
at trial that her
Judge Con-
Simmons testified
term of office ended.1
time his
personal
ance with
were as a domestic rela-
ger’s primary duties
disagreement
from her
stemmed
juvenile
judge, although
he
tions
involving
in a case
her
decision
of an Alabama circuit
general power
had the
daughter.2 In order to achieve its stated
assigned to him.
other matters
to hear
*3
goals,
operated what Simmons re-
CCCFC
cases Alabama are
All domestic relations
monitoring program.”
to as a “court
ferred
matter,
and,
juvenile
nonjury,
general
aas
part
program,
R2-30-53. As
of this
CCCFC
family
court are
proceedings before
sup-
members went to court to lend “moral
See Ala.Code
12-15-
spectators.
closed to
family
port”
litigants, particularly
to
court
65(a) (1995).
litigants.
Interestingly,
Id. at 54.
first-time
allegedly
of the “information” that
was
none
background information on CCCFC
Some
monitoring
collected in these
sessions was
at issue in this
helpful
place
is
to
the events
down,
Judge Conger’s
ever written
and
court
alleged-
proper
context. CCCFC
case
only
was the
one that was ever monitored.
ly
formed “to
attention on the laws
focus
Judge
monitor
Not
did CCCFC
Con-
procedures governing the Juvenile and
and
court,
ger’s
proceedings
but also it initiated
promote
Family
and to
constructive
Courts
against him before both the Alabama Judicial
change to enable the residents to be served
Inquiry Commission and the Alabama Court
just
by judicial system that is fair and
in its
a
Judiciary;
complaints
of the
its
were based
and economical in its
decisions and efficient
demeanor,
rulings,
on his
and al-
Most,
Rl-11, Exh. E at 1.
if
operations.”
leged
closing
family
practice of
certain
all,
founding principals
of the
in CCCFC
public.
hearings to the
Both of these actions
litigants
Judge Conger’s
court or
had been
being
were dismissed as
without merit.3
Nonetheless,
they helped
had a child or close relative who had been
further the consid-
animosity
already
erable
existed be-
litigant
Judge Conger’s
court. The record
Judge Conger
tween
and the members of
unhappy
individuals
indicates
these
were
CCCFC.4
about the outcome of their
generally disapproved of his decisions and his
The conduct at issue
this case occurred
April
during
hearing
courtroom demeanor.
on
hearing being
allega-
first elected in
and was
held
on the merits of its
Judge
Roselyn
by
succeeded in 1995
Herschel T. Hamner.
tions. Id.
Jordan testified that she and
noteworthy
some other CCCFC members went to New York
This fact
is
because the district
appeared
episode
on
permanent injunction
against Judge
an
of the "Geraldo”
court’s
runs
decisions;
judges
show about bad
show,
and bad
on the
respon-
and his “successors in office and
spoke
personal experi-
Jordan
about her
sibilities.” Rl-24-1.
ence in a domestic relations matter before
Conger.
founding
2. Two
members of CCCFC testi-
other
personal griev-
fied at the bench trial about their
fact,
this
In
is
second time that we have
Judge Conger. Roselyn
ances with
Jordan stated
appeal
involving Judge
heard an
in a case
Con-
Conger”
that she was "mad as hell
Paul
ger.
advocacy group,
An
known as the Associa-
result of his decision in her domestic relations
Support,
tion for Children for Enforcement of
involving
case
her former husband's abuse of her
("ACES”), brought
Inc.
the first case based on an
daughter.
Fay Price
R2-30-86.
testified
lawyer
parly
incident in which a
for a
told an
grievance
had a
she
with
concern-
ACES member that she could not observe a child
ing how her case before him was resolved. R2-
custody proceeding
Judge Conger.
before
See
30-22. Price also testified that she backed
Sup-
Association
Children
for Enforcement of
Conger's political opponent in the election due to
port,
Conger,
v.
Inc.
session
I would like to have a
MRS. SIMMONS:
lunch, counsel for Wil-
hearing after
of the
to that effect. will
notarized statement
the Court:
pick up
Gosa addressed
it
next week.
mon
ma’am. We will see
THE COURT: Yes
Gosa]:
for Mr.
[counsel
MR. NOLEN
that,
about
Honor,
may
point,
at this
if I
Your
majority
allegations
(Whereupon,
we
exits the
Mrs. Simmons
great
courtroom).
morning
not in the
were
have heard
*4
certainly surprising to
pleadings and are
Rl-11, Exh. A at 4-6.
that,
would ask that
light
of
we
us.
claims that she was
court
Simmons
and whatever
only
parties and counsel
the
support to
day
moral
Marcia Gosa.
to lend
in court at
testifying be allowed
witness is
left
court-
Significantly,
Simmons
the
after
this time.
room,
lawyer
that nei-
Marcia Gosa’s
stated
asking for Mrs.
You are
THE COURT:
any problem
had
ther he nor his client
to be excused?
Simmons
being
to leave the courtroom.
her
asked
Therefore,
were in favor of Sim-
both sides
Yes, sir, we are.
MR. NOLEN:
being removed from the courtroom for
mons
Simmons, at the re-
Mrs.
THE COURT:
the afternoon session. The record indicates
Defendant,
you to
I will ask
quest of the
lawyer likely wanted to
that Wilmon Gosa’s
yourself.
please excuse
have
removed because Wilmon
Simmons
asking me to
You are
MRS. SIMMONS:
Gosa, who was on the witness stand at the
leave?
time,
on
began being questioned
cross-exami-
Yes, ma’am, I sure am.
THE COURT:
nation about
extramarital conduct
possibly
outside of the
and children
bom
that on the rec-
want
MRS. SIMMONS:
marriage.
trial
testified at
you are—
ord that
testimony
the
Mr. Gosa felt
“[i]f
The counsel for the Defen-
THE COURT:
job, economically
might
there
threaten his
Nolen,
dant,
Mr. Richard
has asked
impact
ability
on his
that has a direct
Simmons,
of Con-
who is a member
Mrs.
support
children.” R2-30-138.
Citizens,
this
be asked to leave
cerned
September
and
On
Simmons
objects to her
because his client
courtroom
complaint in
filed their
district
presence in the courtroom.
declaratory
they sought
in this
in which
just monitoring
I am
MRS. SIMMONS:
injunctive
under 42 U.S.C.
and
right
every citizen has a
the Court because
claimed that her exclusion from
to sit in the court.
proceeding, as well as what
court in the Gosa
Well, ma’am,
of
on behalf
MR. NOLEN:
“policy
prac-
Judge Conger’s
she called
client,
you
ask
to leave.
my
I would like to
of CCCFC and
tice6 of
members
proceedings in his
general public
if
I will leave
MRS. SIMMONS:
court,”
of their
your
deprived her and CCCFC
I will not leave on
makes it official.
rights
Amendment
of
First and Fourteenth
asking.
hearing.
on other
only spectator
cluded from
at the
5. Simmons was the
occasions,
either
those exclusions occurred
but
were witnesses
the CCCFC members
af-
Interestingly,
the Gosa
Simmons admits
exclusionary
or because the
rule
in which she was asked
fected
case is the
instance
juvenile
and were closed
Judge Conger’s
involved
courtroom. R2-30-75.
to leave
law. We view these
as a matter of Alabama
one incident constitutes
We fail to see how this
wholly
to the inci-
as
unrelated
in their
latter instances
and CCCFC characterize
what Simmons
prac-
complained
and therefore
Judge Conger’s “policy
dent
of in this
complaint
establishing
they
plaintiffs in
aid the
indi-
do not
Rl —1—4. The record
tice” of exclusion.
practice.”
proof
any “policy
of
or
CCCFC were ex-
that other members of
cates
issues;
the federal constitutional
the dis-
judicial proceedings and associa-
access to
trict court should have abstained from decid-
Rl-1-4.
tion.
discretionary
involving
a matter
deci-
Judge Conger answered that his exclusion
judge acting pursuant
of a state court
sions
12-
pursuant
to section
of Simmons was done
statute,
constitutionality
to a state
of
Code,
of the Alabama
which states:
21-9
challenge;
which the
did not
sounding
damages
In all civil cases
this matter
should be certified to the Ala-
involving
question
rape',
assault with
Court,
Supreme
it
bama
order for
to inter-
seduction,
ravish,
divorce or
intent
Code,
pret section 12-21-9 of the Alabama
vulgar,
other case where the evidence is
guided Judge Conger’s
conduct
improper
or related to the
acts of
obscene
case.
sexes and tends to debauch the morals
young,
presiding judge
shall
II. DISCUSSION
right,
have the
in his discretion and on his
motion,
plaintiff's
own
or on motion
or
The district court awarded both
attorneys,
or their
to hear and
defendants
relief;
damages
injunctive
these
clearing
try the case
the courtroom
after
separately.
two issues will be addressed
On
any portion
all or
audience whose
appeal,
we review
district court’s conclu
necessary.
presence is not
Worthington
sions
law de novo.
v. United
*5
added).
(emphasis
12-21-9
Ala.Code
(11th Cir.1994).
States,
399,
21 F.3d
400
The
trial,
proceeded
one-day
The case
and a
application
district court’s
of the law to the
trial was held in the
District
bench
Northern
subject
facts also is
to de novo review. Mas
2,
on
of Alabama
December
1992. Almost
Ass’n,
saro v. Mainlands
1
Section & 2 Civic
later,
twenty months
the district court issued
(11th
Inc.,
1472,
Cir.1993),
3 F.3d
1475
cert.
Opinion
Judg-
its Memorandum
and Final
—
denied,
-,
56,
U.S.
115 S.Ct.
130
Injunction,
ment
Permanent
both dated
(1994).
L.Ed.2d 15
29,
July
Although
the district court
expressly
avoiding
it
stated
was
Damages
A. Nominal
presented,
issues
it
nonetheless
“We
a
review district court’s award of
found that
had
his
“abused
damages
clearly
under a
erroneous
stan
discretion under
federal common law and
Marsh,
908,
dard.” Davis
807 F.2d
v.
913
Title 12-21-9.” Rl-23-9.
Based on this
(11th Cir.1987)
curiam).
case,
(per
In this
finding,
permanently
the district court
en-
the district court ordered
joined Judge Conger and his successors
pay
damages.
in
one hundred dollars
nominal
excluding plaintiffs
“from
and members of
damages
against
The
were
him
recoverable
from
divorce trial
in
convened
capacities.
both in his individual and official
the Sixth Judicial Circuit of Alabama in the
clearly
awarding
The district court
erred in
determination,
prior
judicial
of a
absence
damages against Judge Conger in his individ
findings,
based on factual
that their interests
capacity
ual
because he is entitled to absolute
attending
outweighed by
the trials are
a
judicial immunity
damages in
from
this sec
specifically
compelling
identified
state inter-
awarding
tion 1983 case.
It also erred in
est.” Rl-24-1-2.
damages against Judge Conger in his official
addition,
In
the district court awarded
capacity, given
that such relief is barred
Simmons and CCCFC one hundred dollars in
the Eleventh Amendment.
damages,
Judge
recoverable from
“individually
Conger
Supreme
and as Circuit
Court has set forth a
two-part
the Sixth Judicial District of
determining
judge
the State of
test for
when a
is
appeal, Judge
immunity
money damages
Alabama.” Id. at 2.
On
Con-
entitled
issues,
ger
liability
raises three
whether:
federal
when sued under
section 1983.
349,
common law can
Stump
Sparkman,
be created
a district
v.
435
98
U.S.
S.Ct.
(1978).
judge
1099,
procedures
part
to control attendance and
1085 Therefore, damages against the award of not deal- judge If was 98 S.Ct. Conger capacity official is also judicial capacity, his in a plaintiff ing with immunity. If the reversed. there is no then judicial capac- plaintiff his
dealing
test is
however,
part of the
the second
ity,
Injunction
B. Permanent
“
in the
‘clear ab-
judge acted
whether
357, 98
jurisdiction.’”
Id. at
all
sence of
appeal,
On
the standard
review
Fisher,
Bradley
80
(quoting
v.
1105
S.Ct. at
permanent
injunction
grant
for the
of a
is
(1872).
Wall.)
(13
335, 351,
Co. (11th Cir.1990). 905, damages 910 Unlike a it is clear that In this 1983,“judicial immunity is suit under section dealing with Simmons prospective injunctive not a bar to at issue oc judicial capacity. The incident judicial against judicial acting officer in her hearing a Judge Conger was while curred Allen, v. 466 capacity.” Pulliam He excluded Sim relations case. domestic during proceed 104 S.Ct. mons from his 541 — (1984). him, Simply prospective injunc and he was properly before that was judge in relief is available her. acting in his official action, however, satisfy section 1983 does mean Therefore, Conger’s actions appropriate. equitable such relief is determining the test for part of the first judicial immunity. See Rolle applicability (11th 163, 164 Eldridge, 848 F.2d v.
ston Deveaux, Cir.1988); F.2d Harris allege rights Amendment that their First Cir.1986). judicial proceedings and associa access to
tion, applied through to the states *6 Amendment, Fourteenth were violated when Furthermore, Judge Conger satisfies Judge Conger excluded Simmons from the clear Stump test. He part of the the second hearing. Judge Conger, in his answer matter, Gosa jurisdiction ly over the Gosa had lawsuit, explained that he was exercis to this contrary. allegation to the is no there § 12- ing his discretion under Alabama Code Therefore, Conger’s conduct because 21-9, by permits him to which its terms do hearing prongs both satisfies at the Gosa exactly in this ease. Since he what he did judicial immunity from Stump for the test statute, logic acting pursuant to a state 1983, liability the dis damages under section chal that and CCCFC’s dictates Simmons against him damages judgment trict court’s really to lenge in this case is not As for capacity is reversed.7 in his individual actions, Conger’s but rather to the constitu against damages awarded the tionality 12-21-9. of section by this relief is barred capacity, in official immunity employer, then sovereign of his the CCCFC, however, against a suit “[A]
the
of Alabama.
State
in their
repeatedly
emphasized,
have
both
capacity
official
is
in his or her
state official
they
are
argument,
at oral
rather is a briefs and
against the official but
not a suit
constitutionality
office,” and,
challenging
the
against
“[a]s
suit
the official’s
Rather,
they explicitly
state
such,
against
a suit
the
statute.
it is no different from
Conger’s
they
challenging Judge
actions
Michigan Dep’t
are
State
itself.” Will
State
2304, 2312,
they allege violat
Police,
specific
in
109 S.Ct.
rights.
Since
(holding
damages
in
ed their First Amendment
a
This leads us to conclude
the district
entering
per-
a
court abused its discretion
agree
majority’s
I
with the
ultimate con-
injunction against Judge Conger and
manent
clusion that the decision of the district court
Therefore,
permanent
the
his successors.10
many
this case should be reversed for
injunction
by
entered
the district court
is
by
majority.
the reasons stated
I write
vacated, and the district court is instructed
majority wrong
believe the
is
judgment
on remand to enter
Con-
allege
when it states that “[o]ne cannot
ger on this claim.
by
judge,
constitutional violation
who was
doing precisely
permits
him
what
statute
III. CONCLUSION
do,
challenging
constitutionality
without
awarding
The
court
district
erred
nomi-
acting.”1
of the statute under which he was
against
damages
nal
in his
Newspapers,
Virginia,
See Richmond
Inc. v.
capacity
individual
because he is entitled to
2814,
448 U.S.
562 n.
100 S.Ct.
2820 n.
judicial
immunity
money damages
from
lia-
(plurality opinion).
addition,
bility in this
section 1983 case.
Although
majority recognizes
in foot-
awarding
the district court erred
judge acting
9 that “a
pursuant
note
to a
damages against Judge Conger in his official
by
state statute is limited
the constraints of
because that relief is barred
may
the Constitution and
not exercise his
Lastly,
Eleventh Amendment.
the district
discretion under that statute in a unconstitu-
entering
per-
abused its discretion in
fashion,”
tional
it nonetheless concludes that
injunction, regarding
manent
the exclusion of
have failed to
trials,
state a claim.
divorce
majority
Therefore,
plaintiffs’
characterizes
and his successors.
REVERSED,
damages judgment
challenge
“Judge
claim not as a
per-
is
VACATED,
injunction
judgment
deciding
courtroom,
manent
is
to close his
decision,
8. Given our
we need
expressly deny
not address the
Given that Simmons and CCCFC
they
making
challenge
abstention and
that
they
are
certification issues raised
such a
and that
Judge Conger.
Judge Conger's
have not
actions
*7
constituted an unconstitutional exercise of his
statute,
authority
they
under the
have failed to
disagree
Judge
9. We do not
Barkett's read-
state a valid claim.
Newspapers,
Virginia,
of Richmond
Inc. v.
555,
2814,
448 U.S.
100 S.Ct.
fully
reasoning
10. We need not address
the
em-
(1980),
terms,
stating,
general
as
that a
ployed by
granting
the district court in
the in-
acting pursuant
by
to a state statute is limited
the
junction.
opinion,
In its memorandum
the dis-
may
constraints of the Constitution and
not exer-
"[wjithout reaching
trict court states that
the
cise his discretion under that statute in a uncon-
issue,
this Court holds that the
Newspapers,
stitutional fashion. See Richmond
federally protected
exclusion violates
common
4,
1087
governmental
important
an
authority
access served
that he has
the fact
rather
but
I believe
anyone at all.”
and that there was no less restric-
interest
to exclude
rather,
challenging,
in this case are
plaintiffs
way
governmental
that
inter-
to serve
summarily clos-
of
Conger’s “policy”
est.
ex-
an unconstitutional
ing his courtroom
fact,
sought by
the relief
Simmons and
authority.2
ercise
of his
enjoin Judge Conger
was to
“from
CCCFC
nature of the
to ascertain
In order
gen-
of
and the
members
claim,
must understand
one
plaintiffs’
unless,
public
from court
eral
supporting
underlying right
nature
hearing,
proper,
notice and
he
finds
after
seeking the
plaintiffs are
The
such claim.
closure.”
overriding interest
in favor of
surrounding
protections
procedural
type of
an attack on
This seems to me
be
judicial pro-
access to
qualified
right of
discretionary
of his
func-
“exercise
Amend-
by the First
ceedings guaranteed
tion,”
statutory grant of
not a claim that the
Supreme
ment,
first articulated
and
Thus, I
per
se.
Newspapers.3 The
is invalid
such discretion
in Richmond
Court
Newspapers
Judge Conger
in both Richmond
plaintiffs’
believe
claim that
ulti-
the trial court’s
challenged not
infringed
right
this ease
Amendment
of
their First
all,”
anyone at
but
“authority to exclude
mate
judicial proceedings
access to
states a valid
judge exer-
merely
manner
which
constitutional claim.4
complaint,
In their
authority.
such
cised
Ultimately, although
plain
believe
contend
specifically
and CCCFC
claim,
a valid
I do have
tiffs otherwise stated
“genuine
as to whether a
reservations
any
or
make
order
Judge Conger did not
controversy,
merely
possible
or
present
public
balancing
interest of the
finding
See
conjectural
exists in this case.
one”
of the husband
and the interest
to attend
Meridian,
Gully v. First Nat. Bank in
299
Conger
hearing.
a closed
to have
109, 111-13, 57 S.Ct.
(1936). long no Judge Conger is retired and injure PARRISH, Wetzel, or the position to er in a Barbara Dennis Lucas, proceed by excluding them and Robert Plaintiffs- Appellants, alleged “past wrongs do not ings, and his amount to that real and immedi themselves v. injury necessary to make out a ate threat of Gary NIKOLITS, individually R. and in his City controversy.” Angeles Los case or Property Ap- official 95, 103, 103 Lyons, 461 S.Ct. praiser County, Florida, of Palm Beach (1983). Even if Con Defendant-Appellee. are substituted as defen ger’s “successors” No. 95-4807. attempt in an to save this action from dants mootness, I not believe that the relief do Appeals, United States Court sought injunctive relief —is warranted — Eleventh Circuit. Injunctive this ease. July inappropriate Conger’s successors is merely speculative, harm is the threatened
i.e., we would have assume that the suc judges impose “policy”
cessor would a similar Notwithstanding
of exclusion.5 that I think plaintiffs brought cognizable constitu Newspapers
tional claim under Richmond permanent injunction progeny,
and its longer
should be vacated because this case no
presents a “likelihood of substantial and im irreparable injury,” req
mediate an element any grant equitable
uisite to relief. Littleton, 488, 501-03,
O’Shea v. 414 U.S. 94 (1974). 669, 679, L.Ed.2d
S.Ct. previously 5. We affirmed the dismissal of an ac- [W]e duct---- are faced with an unoffi- challenging Judge Conger's "policy" tion of ex- “policy” setting. cial announced in an informal cluding support hearings observers from child simply We cannot know whether injury specula- because the threatened tive, was too policy actually will until he does enforce ripe adjudication: and the case not so. *9 [Ajppellants' claims must be based on what Sup- Association Children for Enforcement of they predict happen will as a result of port, Conger, Inc. Conger’s policy they attempt, should at some Cir.1990) (citations omitted) added). (emphasis future, Judge Conger’s time in the to enter present In the it has not even been during support hearing. This is policy that the successor has a of exclu- plainly type hypothetical case that we sion, impending much less that there is an threat deciding. generally should avoid We do not policy. of enforcement of such a party’s predicted decide cases based on a con-