O'NEILL v. Coughlan

KAREN NELSON MOORE, Circuit Judge,

dissenting.

I dissent because I believe that Cough-lan 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 Coughlan 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 eateh-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 court 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 application 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 Employment Servs. v. Hodory, 431 U.S. 471, 480, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977) (exploring the applicability of Younger abstention sua sponte and concluding that “Eijf 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”); Sosna v. Iowa, 419 U.S. 393, 396 n. 3, 95 S.Ct. 553, 42 L.Ed.2d 532 (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 *645that these cases “stand merely for the proposition that an express waiver will suffice to dispense with abstention, but [do not] make[] such an express repudiation mandatory.” Plaintiff-Appellee Br. at 26. In Federal Express Corp. v. Tennessee Public Service Commission, 925 F.2d 962 (6th Cir.), cert. denied, 502 U.S. 812, 112 S.Ct. 59, 116 L.Ed.2d 35 (1991), we found no waiver and applied Younger abstention when the state- agency “ha[d] persistently argued for abstention,” with the exception of one concession at oral argument later retracted in a brief. Id. at 967. In contrast, Coughlan had not consistently argued for abstention but rather had made arguments inconsistent with its application. I therefore would affirm the district court’s holding that Coughlan had waived application of Younger abstention.

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, 102 S.Ct. 2515, 73 L.Ed.2d 116 (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 the 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 *646prong of the Middlesex test because the state administrative process did not present O’Neill with an adequate opportunity to argue the constitutional issues related to the complaint against him. As a general matter, a judge or attorney may ultimately raise a constitutional defense to disciplinary proceedings against him or her because the Ohio Supreme Court reviews any determination by the Board of Commissioners that disciplinary action is required. See Gov. Bar R. V, § 8; Gov. Jud. R. II, § 5(D); Spargo v. New York State Comm’n on Judicial Conduct, 351 F.3d 65, 72-73 (2d Cir.2003), cert. denied, 541 U.S. 1085, 124 S.Ct. 2812, 159 L.Ed.2d 247 (2004). Significantly, however, O’Neill filed his federal suit twelve weeks before the Ohio judicial elections. Although O’Neill might have ultimately brought his constitutional arguments before the Ohio Supreme Court, the administrative disciplinary process afforded him no explicit opportunity to do so prior to review by the court.2 As a result, the administrative process did not offer O’Neill an adequate state forum to raise constitutional issues before the election; in the meantime, the threat of disciplinary action under the Judicial Canons restricted O’Neill’s political speech.

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, 95 S.Ct. 854. The Court determined that the district court “injunction was not directed at the state prosecutions as such, 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 because of the chilling effect on his exercise of his First Amendment rights. Just as the plaintiffs in Gerstein raised constitutional issues distinct from their defense to their prosecution, so too does the *647disciplinary 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, 99 S.Ct. 698, 58 L.Ed.2d 717 (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 exercise 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.

. The facts in Squire v. Coughlan, 469 F.3d 551 (6th Cir.2006), can be distinguished. In that case, we found abstention appropriate when the Disciplinary Counsel had completed its investigation and a probable-cause hearing had been set. Id. at 554. In the instant case, Ohio disciplinary proceedings were not yet underway at the time O’Neill filed his federal suit. The Disciplinary Counsel had merely issued a mandatory notice letter to O’Neill upon receipt of a grievance. There still existed the possibility that the Disciplinary Counsel might not have found in the course of its investigation substantial evidence of a violation of the Canons of Judicial Ethics. Furthermore, the statement in Squire *646that "a disciplinary proceeding against a judge is ordinarily commenced by the filing of a grievance with the Ohio Disciplinary Counsel,” 469 F.3d at 553, is dicta having the sole purpose to describe the start of the judicial grievance process. That a disciplinary proceeding commences with the filing of a grievance, as a descriptive matter, does not mean that a state proceeding is pending for purposes of Younger abstention.

. In Squire, we found that although "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,” Judge Squire had not met her burden of proving "that Coughlan would have refused to consider her constitutional challenge.” 469 F.3d at 557. The circumstances of O'Neill’s case, however, differ from that of Squire because O’Neill was a judicial candidate and not simply a judge. The doubt regarding whether the Disciplinary Counsel or, subsequently, the Board of Commissioners might consider O'Neill's constitutional objections made the state disciplinary proceedings an inadequate forum. This situation of uncertainty is a far cry from the right to adjudicate a constitutional issue in a court. Had Coughlan chosen not to consider constitutional issues, O’Neill would have had to wait until review by the Ohio Supreme Court to raise his constitutional defenses. Accordingly, O'Neill would have faced a chilling effect on his speech during a critical preelection period.