CAROLE R. SQUIRE, Plаintiff-Appellant, v. JONATHAN E. COUGHLAN, Defendant-Appellee.
No. 05-4513
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
November 28, 2006
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 06a0440p.06. Appeal from the United States District Court for the Southern District of Ohio at Columbus. Nos. 05-00914; 05-00922—Gregory L. Frost, District Judge. Argued: November 2, 2006.
COUNSEL
OPINION
RONALD LEE GILMAN, Circuit Judge. Carole R. Squire, an Ohio state-court judge, filed an action under
The district court dismissed the complaint for lack of jurisdiction under the Younger abstention doctrine. It also denied the motion for a temporary restraining order, concluding that even if Younger abstention were inappropriate, Judge Squire had failed to make the showing necessary to obtain such an order. Judge Squire timely appealed. For the reasons set forth bеlow, we AFFIRM the judgment of the district court.
I. BACKGROUND
A. The Ohio judicial grievance process
Disciplinary proceedings against members of the state judiciary in Ohio are governed by Rule V of the Ohio Supreme Court Rules for the Government of the Bar (Gov. Bar R. V) and Rule II of the Supreme Court Rules for the Government of the Judiciary of Ohio (Gov. Jud. R. II). Under procedures established by these rules, a disciplinary proceeding against a judge is ordinarily commenced by the filing of a grievance with the Ohio Disciplinary Counsel. Upon the filing of a grievance or other information that comes to its attention relating to the alleged misconduct of a judge, the Disciplinary Counsel has a mandatory duty to commence an investigation. The investigation is confidential and involves interviewing witnesses and compiling other information regarding the alleged violation.
The Disciplinary Counsel determines, once the investigation is completed, whether there is substantial evidence of a violаtion of the state-adopted Canons of Judicial Ethics. If the evidence is insufficient, the investigation is dismissed and remains confidential. But if there is substantial evidence of a violation, the Disciplinary Counsel prepares a draft complaint. The draft complaint is then sent to the judge under investigation so that he or she may respond before the complaint is formally
A certified complaint against a judge is then referred to a separate panel comprised of three judges for a formal disciplinary proceeding. The accused judge has the opportunity to answer the complaint and to engage in discovery under the Ohio Rules of Civil Procedure, including pretrial depositions, interrogatories, and document production. Once discovery is complete, the judge may issue subpoenas to witnesses to appear at the disciplinary hearing. The judge also has the right to be represented by counsel and to elicit testimony from the witnesses on both direct and cross-examination.
B. The disciplinary proceedings against Judge Squire
Judge Squire sits on the Franklin County Court of Common Pleas in Columbus, Ohio. She was elected for a six-year term that ends оn December 31, 2006. Jonathan Coughlan, the Disciplinary Counsel for the Supreme Court of Ohio, investigates and prosecutes judicial grievances filed under
Coughlan testified at the district court‘s evidentiary hеaring that his office initially sent Judge Squire a letter of inquiry setting forth the grounds for the Disciplinary Counsel‘s investigation. He further said that he sent her a 50-page draft complaint that alleged two counts of misconduct. Because Judge Squire did not waive confidentiality, no further details of the alleged misconduct are set forth in the record. The draft complaint, according to Coughlan, cоntained the names of all persons who had filed a grievance, as well as the names of all potential witnesses in a formal proceeding against Judge Squire. But Coughlan conceded that the Disciplinary Counsel‘s office did not provide the names of every single person spoken to in the course of conducting its investigation. A probable-cause hearing was set fоr October 7, 2005.
Judge Squire requested that Coughlan provide the names of all of the complainants. Because no complainant had requested anonymity, Coughlan asserted that Judge Squire had been provided with all of the complainants’ names. He also said that there was no particular person who had filed a grievance for one of the two counts charged. Cоughlan testified that this charge was a matter that came to his attention during the course of the overall investigation; thus, there was no name of a particular complainant to provide.
Two days before the state probable-cause hearing set for October 7, 2005, Judge Squire filed her lawsuit against Coughlan in the United States District Court for the Southern District of Ohio. She alleged that Coughlan had violated her due process rights under the Fourteenth Amendment by denying her a meaningful opportunity to respond to the draft complaint. According to the complaint, the due process violation was Coughlan‘s alleged refusal to provide Judge Squire with the names of all of the complainants and witnesses against her. She requested a temporary restraining order рrohibiting Coughlan from proceeding with the probable-cause hearing, a preliminary and a permanent injunction requiring Coughlan to
Judge Squire filed a second complaint on October 6, 2005, which was identical to the original complaint except that Lori J. Brown, the Assistant Disciplinary Counsel, was named as an additional defendant. The second complaint was accompanied by a motion for a temporary restraining order. Because the Boаrd‘s probable-cause hearing was set for October 7, the district court held an evidentiary hearing the evening of October 6. The court once again dismissed the complaint, finding that it lacked jurisdiction under Younger. Moreover, the court held that, even if Younger abstention were inappropriate, Judge Squire‘s claim for temporary injunctive relief would fail on the merits. This timely appeal followed.
II. ANALYSIS
A. The district court‘s decision
The district court held that federal-court abstention was appropriate in this case under Younger v. Harris, 401 U.S. 37 (1971). In Younger, the Supreme Court held that absent “bad faith, harassment or any other unusual circumstance,” federal-court abstention is appropriate where a plaintiff invokes federal jurisdiction as a basis for obtaining injunctive relief against state-court criminal proceedings. Id. at 53-54. The Supreme Court later held that “[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved.” Middlesex County Ethics Comm‘n v. Garden State Bar Ass‘n, 457 U.S. 423, 432 (1982).
B. Younger‘s abstention criteria
There are three requirements for proper invocation of Younger abstention: “(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 challengеs.” Sun Ref. & Mktg. Co. v. Brennan, 921 F.2d 635, 639 (6th Cir. 1990) (citation omitted). “So long as the constitutional claims of respondents can be determined in the state proceedings and so long as there is no showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate, the federal courts should abstain.” Middlesex, 457 U.S. at 435. We review de novo a district court‘s decision to abstain. Berger v. Cuyahoga County Bar Ass‘n, 983 F.2d 718, 721 (6th Cir. 1993).
1. Ongoing state judicial proceedings
The Ohio state constitution vests its supreme court with original jurisdiction over the “[a]dmission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law.”
2. Important state interest
Middlesex held that the state “has an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses.” 457 U.S. at 434. This court has held that “[t]he policies of comity and federalism counsel that because [the state] has such an important interest in regulating its own bar, a state forum should have the first opportunity to review [the state‘s] rules of lawyer conduct and procedures for lawyer discipline.” Fieger, 74 F.3d at 745. The Ohio disciplinary rules apply equally to justices, judges, and attorneys.
3. Adequate opportunity to raise constitutional challenges
A plaintiff must have “an adequate opportunity in the state proceedings to raise constitutional challenges” to satisfy the third prong of the Younger abstention test. Berger, 983 F.2d at 723. Abstention is appropriate “unless state law clearly bars the interposition of the constitutional claims.” Fieger, 74 F.3d at 745 (citation and quotation marks omitted). The plaintiff bears the burden of showing that state law barred presentation of his or her constitutional claims. Id. at 746. Once this third and final requirement is met, abstention is appropriate “unless the plaintiff can show that one of the exceptions to Younger applies, such as bad faith, harassment, or flagrant unconstitutionality.” Id. at 750 (citation and quotation marks omitted).
Judge Squire argues that she was denied the opportunity to raise her due process challenge at the precomplaint stage of the state proceeding. She claims that Coughlan‘s alleged refusal to provide her with the names of all persons spoken to in the course of the investigation deprived her of a meaningful opportunity to respond at a critical predeprivation stage of the disciplinary process. Coughlan, on the other hand, testified that the names of all potential witnesses were provided to Judge Squire. He conceded, however, that she was not provided with the names of every single person contacted in connection with his investigation of her alleged misconduct. Addrеssing this allegation, Coughlan testified that Judge Squire did not in fact ask for the names of all persons contacted, but asked only for the names of the persons who filed the grievances.
Judge Squire‘s argument is unpersuasive because it conflicts with the Supreme Court‘s holding in Middlesex. In Middlesex, the Middlesex County Ethics Committee served a formal statement of charges on the plaintiff, a New Jersey attorney, arising out of an investigation into improper comments by the plaintiff in connection with a criminal trial. 457 U.S. at 428. Rather than file an answer to the charges as required by New Jersey state disciplinary procedures, the attorney filed suit in federal district court, arguing that the disciplinary rules violated his First Amendment rights. Id at 429. He claimed that there was no opportunity in the state disciplinary proceedings to rаise his constitutional claim. Id. at 435. The Supreme
Judge Squire argues that Coughlan‘s alleged refusal to provide the identities of all complainants and witnesses was a denial of due process. Whether or not there was a denial of due process, the record makes clear that Judge Squire, like the attorney in Middlesex, failed to raise this constitutional claim in the state disciplinary proceedings. Instead, Judge Squire took her claim directly to federal district court before the draft complaint was even filed with the Board. She states no facts in support of her assertion that there was not an adequate opportunity to raise this due process challenge at the precomplaint stage of the proceeding. As the district court pointed out,
At oral argument, counsel for Judge Squire emphasized that there were no explicit instructions in either the Bar Rules or the Judiciary Rules for raising constitutional claims at the precomplaint stage of the process. Because there were no explicit procedures in place, the reasoning goes, there was no adequate opportunity for Judge Squire to raise her claim. Judge Squire is correct in pointing оut that there are no such procedures contained in the Rules. An absence of explicit procedures however, does not establish that Judge Squire had an inadequate opportunity to raise her claim. The dispositive fact in this case is that Judge Squire has not shown that Coughlan would have refused to consider her constitutional challenge. See Fieger, 74 F.3d at 747 (“Similar to the Plaintiff in Middlesex, Fieger has failed tо demonstrate that members of the hearing panel and the Board, the majority of whom are lawyers, would have refused to consider a claim that the rules which they were enforcing violated federal constitutional guarantees.“) (citation omitted).
Because Judge Squire failed to meet her burden of showing that Ohio law barred her from raising her constitutional claim in the state disсiplinary proceeding, the third prong of the Younger test is satisfied. See Berger, 983 F.2d at 723 (holding that Younger abstention was appropriate because the “plaintiffs had the opportunity to present their constitutional claims in their answer to the [disciplinary] complaint against them“).
C. Younger‘s abstention exceptions
Abstention is appropriate, then, unless Judge Squire “can show that one of the exceptions to Younger applies, such as bad faith, harassment, or flagrant unconstitutionality.” Fieger, 74 F.3d at 750. Judge Squire has made no such showing. The district court therefore correctly concluded that Younger abstention was appropriate and that it could not grant the requested injunctive relief. See Sun Ref. & Mktg. Co., 921 F.2d at 639 (holding that “when a case is properly within the Younger category of cases, there is no discretion on the part of the federal court to grant injunctive relief“) (citation and quotation marks omitted). See also
D. Underlying due process claim
Judge Squire seeks to avoid the Younger abstention doctrine by arguing that this case is controlled not by Younger, but by the Supreme Court‘s decision in Parratt v. Taylor, 451 U.S. 527 (1981). Taylor, a Nebraska prison inmate, had sued the Warden and Hobby Manager of the prison in which he was incarcerated because hobby materials purchasеd by Taylor and addressed to his attention at the prison were never actually handed over to him. Id. at 529. He initiated an action under
The Court held that the inmate had made a threshold showing of a due process violation by alleging that (1) the defendаnts acted under color of state law, (2) the hobby materials were the property of the inmate, and (3) the alleged loss amounted to a deprivation. Id. at 536. While noting that the “fundamental requirement of due process is the opportunity to be heard” at a meaningful time and in a meaningful manner, the Court held that due process does not always require the state to provide a hearing prior to the initial deprivation of property. Id. at 540. “[T]he normal predeprivation notice and opportunity to be heard is pretermitted if the State provides a postdeprivation remedy.” Id. at 538. A failure to provide predeprivation notice, the Court held, is justified in situations where the taking is a “result of a random and unauthorized act by a state employee.” Id. at 541. The Court held that although the plaintiff was deprived of property under color of state law, he failed to seek redress under the existing Nebraska state tort-claims procedure, which the Court deemed an adequate state postdeprivation remedy that satisfied the requirements of due process. Id. at 543-44.
Judge Squire claims that the Ohio Disciplinary Counsel, through Coughlan, failed to provide an adequate postdeprivation remedy for the alleged underlying due process violation. She argues that Coughlan did not provide her with the name of every person contacted in the course of the investigation into her alleged misconduct. This “admission,” in Judge Squire‘s view, proves that Coughlan acted in an unauthorized and arbitrary manner “not authorized by established State procedure.” She also argues that, under Parratt, the postdeprivation remedy is inadequate beсause it requires her to appear in a public hearing following, in her words, the “public smearing of baseless and malicious allegations in the news media” in a year when she is up for reelection.
Even assuming that Judge Squire states a viable due process claim, Parratt is simply inapplicable in this case. Unlike Judge Squire, the plaintiff in Parratt was not involved in an ongoing state judicial proceeding when he filed his due process claim in federal court. Judge Squire is not only already involved in such a proceeding, but, as explained in Part II.B.3. above, has an adequate opportunity to present her constitutional claim in that proceeding. Because the district court must abstain under Younger and therefore lacks jurisdiction to hear Judge Squire‘s claim, her argument under Parratt is foreclosed.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.