Hood v. Keller

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Hood v. Keller, et al. No. 02-3402
ELECTRONIC CITATION: 2003 FED App. 0314P (6th Cir.)
File Name: 03a0314p.06 GENERAL, Columbus, Ohio, for Appellees. ON BRIEF:
Nathan W. Kellum, CENTER FOR INALIENABLE
RIGHTS, Memphis, Tennessee, for Appellant. Elise W.
UNITED STATES COURT OF APPEALS Porter, Tomi L. Dorris, OFFICE OF OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellees.
FOR THE SIXTH CIRCUIT
_________________ GIBBONS, J., delivered the opinion of the court, in which
GILMAN, J., joined. KENNEDY, J. (pp. 11-12), delivered
JAMES D. HOOD II, X a separate dissenting opinion.
Plaintiff-Appellant, -
- _________________
- No. 02-3402
v. - OPINION
> _________________
,
RONALD T. KELLER; RICHARD -
JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-
H. FINAN; KENNETH L. - appellant James D. Hood II brought suit in federal district
MORCKEL, - court against defendant-appellee Ronald Keller, in his official
Defendants-Appellees. - capacity as the Executive Director of the Capitol Square
- Review and Advisory Board; defendant-appellee Richard
N Finan, in his official capacity as the Chairman of the Capitol
Appeal from the United States District Court Square Review and Advisory Board; and defendant-appellee
for the Southern District of Ohio at Columbus. Kenneth Morckel, in his official capacity as the
No. 01-00454—Algenon L. Marbley, District Judge. Superintendent of the Ohio State Highway Patrol, challenging
the constitutionality of Ohio Administrative Code § 128-4.
Argued: August 1, 2003 This provision requires that all persons who wish to use the
Ohio Statehouse grounds in Columbus, Ohio, first obtain a
Decided and Filed: September 3, 2003 permit to do so. In his complaint, Hood alleges that the
permit requirements set forth in Ohio Administrative Code
Before: KENNEDY, GILMAN, and GIBBONS, Circuit § 128-4 are unconstitutionally overbroad, vague, and
Judges. discriminatory in violation of his rights to free speech and
free exercise of religion under the First and Fourteenth
_________________ Amendments to the United States Constitution. Hood claims
that the continued threat of enforcement of Ohio
COUNSEL Administrative Code § 128-4 “chills and deters plaintiff from
exercising his constitutional rights, causing irreparable harm
ARGUED: Nathan W. Kellum, CENTER FOR to plaintiff.” Defendants-appellees filed a motion to dismiss
INALIENABLE RIGHTS, Memphis, Tennessee, for under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of
Appellant. Elise W. Porter, OFFICE OF OHIO ATTORNEY Civil Procedure. The district court concluded that the

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No. 02-3402 Hood v. Keller, et al. 3 4 Hood v. Keller, et al. No. 02-3402

Rooker-Feldman doctrine prevented it from exercising (C) The board will collect a nominal fee of twenty
jurisdiction over this lawsuit, granted the motion under Rule dollars--to cover the administrative cost of issuing a
12(b)(1), and dismissed the case. For the reasons set forth permit. The fee may be waived for good cause shown.
below, we reverse the decision of the district court and
remand for further proceedings. On May 18, 2000, Hood entered the Ohio Statehouse
grounds and began to “preach and/or hand out religious
I. tracts.” An officer of the Ohio State Highway Patrol arrived
on the scene and told Hood “that he could not preach on the
Hood is a Christian pastor. Since 1982, Hood has engaged public property nor hand out religious tracts without a permit
in “religious speech activities” on the Ohio Statehouse to do so.” Hood was asked to leave the property and refused.
grounds, including “open air proclamation, oral Later that day, Hood was charged with criminal trespass in
communication, and written literature.” violation of Ohio Revised Code § 2911.21(A)(2), which
states:
The Capitol Square Review and Advisory Board (Capitol
Square) is an eleven-member body with the “sole authority to No person, without privilege to do so, shall . . .
regulate all uses of the capitol square.” O.R.C. [k]nowingly enter or remain on the land or premises of
§ 105.41(E)(2). Pursuant to its statutory authority, Capitol another, the use of which is lawfully restricted to certain
Square has enacted a rule requiring all persons who wish to persons, purposes, modes, or hours, when the offender
use the Ohio Statehouse grounds to obtain a permit before knows he is in violation of any such restriction or is
doing so. Ohio Administrative Code § 128-4-02(A) states: reckless in that regard.
Capitol buildings or grounds are available for use by the Hood filed a motion to dismiss the state criminal charges.
public for the purpose of governmental business, public In his motion to dismiss, Hood argued that Ohio Revised
meetings for free discussion of public questions, or for Code § 2911.21(A)(2) and Ohio Administrative Code § 128-1
activities of a broad public purpose, provided the et seq. “violate due process, freedom of speech, and the free
authorized procedure has been followed and appropriate exercise of religion and as such are unconstitutional.” On
approvals have been received. November 17, 2000, the Franklin County Municipal Court
held that the challenged statutes were constitutional and
The procedure for obtaining a permit is described in Ohio denied Hood’s motion to dismiss. A jury trial was held, and
Administrative Code § 128-4-03, which provides, in relevant on November 29, 2000, Hood was found guilty of criminal
part: trespass and fined one hundred dollars. Hood appealed the
decision to the Court of Appeals of Ohio, Tenth Appellate
(A) A request for use of capitol buildings or grounds District, but later filed a motion to dismiss his appeal, which
shall be submitted in writing to the board no less than was granted on April 2, 2001.
fifteen and no more than one hundred eighty days prior
to the event. For good cause shown, requests may be On May 16, 2001, Hood filed a Verified Complaint in the
submitted within less than fifteen days before the event. United States District Court for the Southern District of Ohio
against defendants-appellees. The complaint alleges that:
*** (1) “[t]he continued threat of enforcement of Chapter 128-4
No. 02-3402 Hood v. Keller, et al. 5 6 Hood v. Keller, et al. No. 02-3402

permit requirement and charge of criminal trespass for being Rooker-Feldman doctrine prevented the district court from
on public grounds, chills and deters plaintiff from exercising exercising subject matter jurisdiction over Hood’s claims, and
his constitutional right, causing irreparable harm to plaintiff;” entered judgment for defendants-appellees. On April 8, 2002,
(2) “[t]he permit requirements set forth in Chapter 128-4 are Hood filed his notice of appeal.
unconstitutionally overbroad, vague, and discriminatory, as
applied and construed, in violation of freedom of speech II.
under the First and Fourteenth Amendments to the United
States Constitution;” (3) “[t]he permit requirements set forth This court reviews de novo a district court’s grant of a
in Chapter 128-4 are unconstitutionally overbroad, vague, and motion to dismiss for lack of subject matter jurisdiction.
discriminatory, as applied and construed, in violation of free Tropf v. Fid. Nat’l Title Ins. Co., 289 F.3d 929, 936 (6th Cir.
exercise of religion under the First and Fourteenth 2002), cert. denied 123 S.Ct. 887 (2003).
Amendments to the United States Constitution;” and (4) that
defendants-appellees “impermissibly interfered with the A.
exercise of Pastor Hood’s rights of conscience and religion
and freedom of speech guaranteed by Section 1.027 and 1.11 The district court held that the Rooker-Feldman doctrine
of the Ohio Constitution.”1 Hood requests the following bars Hood’s claims in this lawsuit. This decision was
relief: (1) “a judgment and decree declaring that Chapter 128- incorrect.
4 of the Ohio Administrative Code and Section 105.41 are The Rooker-Feldman doctrine has evolved from two
unconstitutional as applied to plaintiff’s activities in this Supreme Court cases which establish that “lower federal
case;” (2) “a preliminary and permanent injunction enjoining courts lack subject matter jurisdiction to engage in appellate
defendants, their agents, employees and all persons in active review of state court proceedings.” Peterson Novelties, Inc.
concert or participation with them, or any of them, from v. City of Berkley, 305 F.3d 386, 390 (6th Cir. 2002); see also
applying or enforcing or attempting to enforce against the Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); Dist. of
plaintiff Chapter 128-4 permit requirement for preaching Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
and/or handing out religious tracts;” (3) compensatory The purpose of the doctrine is to prevent “a party losing in
damages; and (4) reasonable costs and expenses. state court . . . from seeking what in substance would be
On July 16, 2001, defendants-appellees filed motions to appellate review of the state judgment in a United States
dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal district court, based on the losing party’s claim that the state
Rules of Civil Procedure. The district court found that the judgment itself violates the loser’s federal rights.” Tropf, 289
F.3d at 936-37 (quoting Johnson v. De Grandy, 512 U.S. 997,
1005-06 (1994)).
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In his complaint, Hood also set forth claims of malicious The Rooker-Feldman doctrine bars district courts from
prosecution and false arrest. Hood voluntarily withdrew his claim of hearing both challenges to state court judgments and claims
malicious prosecution prior to the district court’s ruling on defendants- that are “inextricably intertwined” with state court judgments.
app ellees’ motio n to dism iss. In its March 1 5, 20 02, o rder, the district
court dismissed Hood’s claim of false arrest, noting that Hood “failed to See Catz v. Chalker, 142 F.3d 279, 293 (6th Cir. 1998). “In
respond to the Defendants’ arguments” and “seems to have conceded that practice this means that when granting relief on the federal
the claim of false arrest is without merit.” Hood has not app ealed the claim would imply that the state-court judgment on the other
district court’s dismissal of the false arrest claim.
No. 02-3402 Hood v. Keller, et al. 7 8 Hood v. Keller, et al. No. 02-3402

issues was incorrect, federal courts do not have jurisdiction.” the litigant is challenging the constitutionality of a rule that
Pieper v. Am. Arbitration Ass’n, — F.3d. —, 2003 WL was applied to him, but is not asking to correct or revise the
21663246, at *2 (6th Cir. July 11, 2003); see also Pennzoil determination that he violated the rule, Rooker-Feldman is no
Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., obstacle to the maintenance of the suit.” (internal quotation
concurring) (“Where federal relief can only be predicated marks omitted)).
upon a conviction that the state court was wrong, it is difficult
to conceive the federal proceeding as, in substance, anything In Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224
other than a prohibited appeal of the state-court judgment.”). (7th Cir. 1993), the Seventh Circuit examined the
The Rooker-Feldman doctrine, however, does not prohibit applicability of the Rooker-Feldman doctrine to a similar
federal district courts from exercising jurisdiction where the situation. The Illinois Judicial Inquiry Board filed charges
plaintiff’s claim is merely “a general challenge to the against Robert Buckley, an Illinois state court justice, for
constitutionality of the state law applied in the state action,” violating a state rule regulating the speech of candidates for
rather than a challenge to the law’s application in a particular judicial office. Id. at 226. The Illinois Courts Commission
state case. Tropf, 289 F.3d at 937 (quoting Catz, 142 F.3d at ruled that Buckley had violated the rule in his 1990 judicial
293). In determining the applicability of the Rooker-Feldman campaign, and according to the Illinois state constitution, the
doctrine, federal courts “cannot simply compare the issues commission’s decision was final such that Buckley had no
involved in the state-court proceeding to those raised in the avenue for appeal within the state court system. Id.
federal-court plaintiff’s complaint,” but instead “must pay
close attention to the relief sought by the federal-court Buckley filed suit in federal district court, not seeking to
plaintiff.” Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th overturn the final decision from the Illinois Courts
Cir. 2003) (quoting Kenmen Eng’g, 314 F.3d at 476). Commission, but instead seeking a declaratory judgment that
the state rule regulating the speech of judicial candidates is
In his complaint, Hood claims that “[t]he continued threat unconstitutional. The Seventh Circuit held that:
of enforcement of Chapter 128-4 permit requirement and
charge of criminal trespass for being on public grounds chills Justice Buckley’s challenge to the constitutionality of
and deters [him] from exercising his constitutional rights,” Illinois Supreme Court Rule 67(B)(1)(c) does not entail
thereby causing him irreparable harm. However, Hood has a challenge to the ruling by the Illinois Courts
not challenged his state court criminal trespass conviction. Commission that he violated the rule. It is true that if as
As Hood correctly observes, the complaint contains “no in Leaf v. Supreme Court, 979 F.2d 589 (7th Cir.1992),
demand to set aside the verdict or the state court ruling.” Buckley were seeking not only to clear away the rule so
Instead, Hood seeks injunctive and declaratory relief that he could run in future judicial elections unimpeded
prohibiting defendants-appellees from using “preaching by it but also to obtain relief against the discipline
and/or handing out religious tracts” as a basis for “enforcing imposed upon him, he would be in effect appealing from
or attempting to enforce” Ohio Administrative Code § 128-4. the Illinois Courts Commission’s judgment (though that
Because Hood does not seek to have the district court would be only a part of what he was doing), which
overturn his November 29, 2000, conviction in Franklin Rooker-Feldman forbids him to do. But he is not asking
County Municipal Court, the Rooker-Feldman doctrine is us to expunge the disciplinary finding or do anything else
inapplicable to this lawsuit. See Edwards v. Illinois Bd. of to correct or revise the Commission’s judgment. He is
Admissions to Bar, 261 F.3d 723, 729 (7th Cir. 2001) (“When not, in short, asking for any relief of the kind an appellant
No. 02-3402 Hood v. Keller, et al. 9 10 Hood v. Keller, et al. No. 02-3402

seeks – relief directed against a judgment. Of course that court lacks jurisdiction; if the latter, then there is
judgment, which by virtue of Rooker-Feldman Justice jurisdiction and state law determines whether the
Buckley cannot attack in this suit, might by principles of defendant prevails under principles of preclusion.
res judicata bar him from maintaining this suit. But res
judicata is a defense, not a limitation on jurisdiction. It GASH Assoc. v. Village of Rosemont, Ill., 995 F.2d 726, 728
must be pleaded. It has not been. (7th Cir. 1993); see also Kenmen Eng’g v. City of Union, 314
F.3d 468, 476 (10th Cir. 2002) (“Rather than prohibiting the
Id. at 227. relitigation of issues and claims (the province of the
preclusion doctrines), Rooker-Feldman protects state-court
As in Buckley, if Hood were seeking to obtain relief judgments from impermissible appellate review by lower
directed against his November 29, 2000, conviction, instead federal courts.”).
of simply seeking to clear away the allegedly unconstitutional
permit requirement so that he can preach and hand out In this case, Hood does not seek to set aside his conviction
religious tracts on Capitol grounds in the future unimpeded by in Franklin County Municipal Court. Consequently, the
the permit requirement, then the Rooker-Feldman doctrine Rooker-Feldman doctrine does not apply. Although the fact
would apply. But Hood is not asking the district court to that Hood raised the same constitutional issue in the state
expunge his state court conviction. Consequently, the court proceeding could potentially justify dismissing this
Rooker-Feldman doctrine does not bar this claim. lawsuit in whole or in part, we note that “absent exceptional
cases or particular circumstances, a federal appellate court
Applying the Rooker-Feldman doctrine, the district court will not consider issues not passed on by the district court.”
observed that “the state court specifically ruled on the precise United States v. State of Ohio, 957 F.2d 231, 234 (6th Cir.
issue presented to this court.” Hood v. Keller, No. 1992) (quotation omitted). We thus decline to reach these
01-CV-454, 2002 WL 483560, at *6 (S.D. Ohio March 15, issues and instead leave them for the district court to resolve
2002). The district court appears to have confused the on remand.
Rooker-Feldman doctrine with the concept of preclusion. As
the Seventh Circuit has noted, “although the Rooker-Feldman III.
doctrine and principles of preclusion may be easily confused
with each other because they both define the respect one court For the foregoing reasons, we reverse the decision of the
owes to an earlier judgment, the two are not coextensive.” district court and remand for further proceedings.
Centres, Inc. v. Town of Brookfield, Wis., 148 F.3d 699, 703
(7th Cir. 1998). Explaining the difference between the
Rooker-Feldman doctrine and preclusion, the Seventh Circuit
has stated:
The Rooker-Feldman doctrine asks: is the federal
plaintiff seeking to set aside a state judgment, or does he
present some independent claim, albeit one that denies a
legal conclusion that a state court has reached in a case to
which he was a party? If the former, then the district
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_______________ challenge in state court. The state court has actually ruled on
his general challenge. As the district court noted, the issue
DISSENT was explicitly decided in the criminal case. Plaintiff cannot
_______________ seek to have it relitigated here.

KENNEDY, Circuit Judge, dissenting. Because I believe
the district court properly applied the Rooker-Feldman
doctrine, I respectfully dissent.
Plaintiff made a general challenge as well as an applied
challenge to the constitutionality of the ordinance in the state-
court proceeding, the state-court judgment addressed and
confirmed the constitutionality of the ordinance as applied to
plaintiff and generally, and plaintiff did not appeal.
It is clear that plaintiff is making the same applied
challenge to the constitutionality of the ordinance in his
federal complaint here, and on that basis the district court
applied the Rooker-Feldman doctrine. While plaintiff does
not directly ask that his conviction be set aside, he does
complain that defendants-appellees “impermissibly interfered
with the exercise of Pastor Hood’s rights of conscience and
religion and freedom of speech guaranteed by Section 1.027
and 1.11 of the Ohio Constitution, and asks that “a judgment
and decree declaring that Chapter 128-4 of the Ohio
Administrative Code and Section 105.41 are unconstitutional
as applied to plaintiff’s activities in this case.” The activity
described in the complaint is the May 18, 2000 activity in
which the state “unconstitutionally stopped plaintiff’s
speech.” To read plaintiff’s federal complaint as making only
a facial challenge would require us to disregard the fact that
plaintiff seeks injunctive relief only for himself and a
declaration that his conduct as described in the complaint was
constitutionally protected. To grant him the relief sought
would require us to consider the same issues previously
decided in Ohio state court; i.e., the constitutionality of the
ordinance as applied to plaintiff’s conduct on May 18, 2000.
Plaintiff’s general challenge is “inextricably intertwined” with
the state court proceeding. Further, plaintiff made a general