O'NEILL v. Coughlan

GUY, J., delivered the opinion of the court, in which GILMAN, J., joined. MOORE, J. (pp. 644-47), delivered a separate dissenting opinion.

OPINION

Defendant Jonathan E. Coughlan, Disciplinary Counsel for the Supreme Court of Ohio, appeals from the district court’s grant of summary judgment to plaintiff William O’Neill in this action seeking to enjoin enforcement of three canons of the Ohio Code of Judicial Conduct. O’Neill, a judge of the Ohio Court of Appeals at the time, was accused of violating these canons while campaigning for election to the Ohio Supreme Court in 2004. The district court concluded that enforcement of these canons would impermissibly restrict O’Neill’s free speech rights as guaranteed by the First Amendment. We vacate the judgment entered in favor of O’Neill because the district court should have abstained from deciding the merits of the case under the authority of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

I.

William O’Neill was a candidate seeking election to the Ohio Supreme Court in 2004. His campaign theme was “Money and Judges Don’t Mix.” To that end, he supported judicial campaign finance reform and refused any donation over $10. In addition to the “Money and Judges Don’t Mix” slogan, O’Neill’s campaign website included the following statement: “The time has come to end the public’s suspicion that political contributions influence court decisions. The election of Judge O’Neill is the best step toward sending the message: ‘This Court is Not For Sale!’ ”

In July of 2004, James Trakas, Chairman of the Cuyahoga County Republican Party, filed a grievance with the Office of the Disciplinary Counsel. The grievance alleged that O’Neill’s campaign literature *640(1) failed to disclose the court for which he was a judge, in violation of Ohio Code of Judicial Conduct Canon 7(D)(2) (prohibiting a candidate from “[using] the term ‘judge’ when a judge is a candidate for another judicial office and does not indicate the court on which the judge currently serves”); (2) wrongfully identified his political party affiliation, in violation of Canon 7(B)(3)(b) (“After the day of the primary election, a judicial candidate shall not identify himself or herself in advertising as a member of or affiliated with a political party”); and (3) wrongfully attacked the credibility of the Ohio judiciary. As to this last allegation, the grievance alleged that O’Neill’s campaign statements “viciously malign the fair, unbiased and impartial judiciary” without specifying any canon that O’Neill violated. O’Neill and the district court, however, inferred that O’Neill was accused of violating Canon 7(B)(1), which requires judges and judicial candidates to “maintain the dignity appropriate to judicial office.”

Following standard procedure, the Office of the Disciplinary Counsel sent O’Neill a letter advising him of Trakas’s grievance. That letter stated, in part:

Please be advised that the enclosed grievance has been filed against you by James Trakas. Pursuant to Gov. Bar R. V, as referenced in Gov. Jud. R. II, the Disciplinary Counsel is required to investigate any matter filed with him or that comes to his attention. Accordingly, this office must obtain a response to such grievances, regardless of the form or ultimate sufficiency thereof. In accordance with Gov. Bar R. V, this investigation will be confidential.

Please provide your written response on or before August 4, 2004. A copy of your reply will be sent to the grievant unless you request in writing that it not be so furnished....

Without responding to this letter, O’Neill commenced this action in federal court alleging that the canons were unconstitutional under the First and Fourteenth Amendments.

O’Neill filed motions seeking a temporary restraining order and preliminary injunction to prevent Coughlan from enforcing the canons against him. Cough-lan argued in response that the ease was hot ripe for review and that Coughlan was not the proper defendant. After a prompt hearing, the district court rejected the “ripeness” argument, issued a temporary restraining order, and requested additional briefing on the question of whether a preliminary injunction should be issued as well. Co.ughlan’s response included both opposition to the preliminary injunction and a motion to dismiss the complaint. In his brief, Coughlan reiterated his arguments that O’Neill’s suit was not ripe because there had been no disciplinary action, and that he was the wrong defendant. He also argued that the injunction should not issue because O’Neill’s claims were not likely to succeed on the merits.

On September 14, 2004, the district court granted plaintiffs motion for a preliminary injunction and deferred ruling on defendant’s motion to dismiss. Coughlan did not move for reconsideration or file an appeal; but, ten days later, filed a “motion to clarify” whether the injunction applied only to O’Neill or to any person in the State of Ohio. In a “supplemental motion to dismiss” filed October 6, 2004, Coughlan argued for the first time that the district court should abstain from exercising its jurisdiction under Younger. The district court apparently never ruled on defendant’s motion to dismiss.

On March 10, 2006, more than a year later, Coughlan moved to dissolve the preliminary injunction on the grounds of *641Younger abstention. In denying the motion, the district court found that although abstention would apply, Coughlan had waived Ohio’s Younger abstention argument by choosing to address the merits of O’Neill’s constitutional claim without raising the issue of abstention. O’Neill v. Coughlan, 436 F.Supp.2d 905, 908 (N.D.Ohio 2006). In deciding the cross-motions for summary judgment that followed, the district court again found defendant had waived the argument for Younger abstention, granted O’Neill’s motion for summary judgment, converted the preliminary injunction to a permanent injunction, and entered judgment accordingly. O’Neill v. Coughlan, No. 04-CV-1612, 2007 WL 218717 (N.D.Ohio Jan. 26, 2007). The judgment declared that Canons 7(B)(3)(b) and 7(D)(2) are facially unconstitutional, and that Canon 7(B)(1) is unconstitutional as applied to O’Neill. This appeal followed.1

II.

Under Younger abstention, absent unusual circumstances not asserted here, a federal court must decline to interfere with pending state civil or criminal proceedings when important state interests are involved. Younger, 401 U.S. at 41, 91 S.Ct. 746; Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Squire v. Coughlan, 469 F.3d 551, 555 (6th Cir.2006); Sun Refining & Mktg. Co. v. Brennan, 921 F.2d 635, 638-42 (6th Cir.1990). Younger abstention is not a question of jurisdiction, but is rather based on “strong policies counseling against the exercise of such jurisdiction.” Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 626, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986).

A. Waiver

Both parties acknowledge that a state can waive application of Younger abstention. Sosna v. Iowa, 419 U.S. 393, 396-97 n. 3, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Ohio Bureau of Empl. Servs. v. Hodory, 431 U.S. 471, 479-80, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977). The dispute here is whether a state waives the right to assert Younger simply by addressing the merits of the case without having raised the issue of Younger abstention. While no controlling authority has decided this precise issue, the decisions in Sosna and Hodory provide guidance concerning the relevant parameters of such a waiver. Specifically, the Court in Sosna raised the issue of Younger abstention sua sponte, but agreed to decide the case after the state urged the Court to reach the merits of the plaintiffs constitutional claim. 419 U.S. at 396-97 n. 3, 95 S.Ct. 553.

Similarly, Younger abstention was raised sua sponte in Hodory, but the state asked that the Court disregard Younger and decide the constitutional issue on the merits. The Supreme Court agreed to disregard Younger abstention because the state wanted a decision on the merits, explaining that:

*642Younger and these cited cases express equitable principles of comity and federalism. They are designed to allow the State an opportunity to “set its own house in order” when the federal issue is already before a state tribunal.

It may not be argued, however, that a federal court is compelled to abstain in every such situation. If 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. In the present ease, Ohio either believes that the District Court was correct in its analysis of abstention or, faced with the prospect of lengthy administrative appeals followed by equally protracted state judicial proceedings, now has concluded to submit the constitutional issue to this Court for immediate resolution. In either event, under these circumstances Younger principles of equity and comity do not require this Court to refuse Ohio the immediate adjudication it seeks.

Hodory, 431 U.S. at 479-80, 97 S.Ct. 1898. It is instructive that in both Sosna and Hodory, the Supreme Court raised Younger abstention sua sponte well after the merits of the dispute had been argued and decided, and no suggestion was made that Younger had been waived because it was not raised earlier in the proceedings. Moreover, in both cases, the Court permitted the state to waive Younger abstention upon the state’s clear and explicit statement that it did not want the Court to apply Younger. This indicates that it is not necessary for the issue to have been raised either in the state’s first responsive pleading or before the state addresses the merits.

This court discussed a waiver of Younger abstention in Federal Express Corp. v. Tennessee Public Service Commission, 925 F.2d 962, 965 (6th Cir.1991), but did not decide the precise question at issue in this case. This court held that the state defendant had not waived the argument for Younger abstention. Id. at 967. In doing so, we concluded that the state was not required to raise abstention in its pleadings, particularly since abstention may be raised by the court sua sponte. Id. at 966-67. The defendant had argued for abstention, but also moved for consolidation of the hearing on the motion for preliminary injunction with the trial on the merits. The defendant conceded that abstention did not apply at the hearing, but later retracted that concession in a supplemental filing. The court explained that the defendant had “persistently argued for abstention,” and that the motion to consolidate hearing was “a means of avoiding duplicative proceedings rather than a request for the court to reach the merits of the constitutional issue.” Id. at 967.

According to O’Neill, Federal Express implies that any request that the federal court reach the merits of the lawsuit constitutes waiver of any argument for Younger abstention. Such an interpretation stretches the holding in Federal Express too far. This court merely restated the principle explained in Hodory and in Dayton Christian Schools that a state may waive an argument for Younger abstention by affirmatively urging the federal court to proceed to the merits of a constitutional claim despite the possible application of Younger abstention. There was no such explicit waiver of abstention in Federal Express.

In another case, this court found that an argument for Younger abstention had not been waived even though the issue had not been raised by any party in the district court. Beeman v. Stafford, No. 94-3634, 1995 WL 456367, at *4 (6th Cir. Aug. 1, 1995) (unpublished). This court affirmed *643the denial of the habeas petition, but concluded that the district court should have abstained from deciding the merits. The Younger issue was raised sua sponte on appeal, and we held that the district court had no discretionary authority to grant injunctive relief because Younger abstention applied. We also explained that although Younger abstention can be waived by a state, in each of the Supreme Court cases the state expressly urged the court to adjudicate the constitutional claim on the merits. Id. at *4 n. 2 (quoting Dayton Christian Sch., 477 U.S. at 626, 106 S.Ct. 2718). Relying on the Supreme Court’s precedent, this court concluded that: “When faced with grounds for Younger abstention, a federal court will only tread [whjere it is unequivocally invited.” Id. We agree.

Accordingly, we find that Coughlan’s failure to assert Younger abstention before arguing for dismissal of the claims on the merits did not constitute waiver of the right to seek dismissal of the complaint on the grounds of Younger abstention.

B. Merits of Younger Abstention

Younger abstention requires a federal court to abstain from granting in-junctive or declaratory relief that would interfere with pending state judicial proceedings. Younger, 401 U.S. at 40-41, 91 S.Ct. 746. We look to three factors to determine whether a court should abstain from hearing a case under the Younger doctrine: “(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 challenges.” Sun Refining, 921 F.2d at 639. O’Neill contested only the first factor, arguing that there was no ongoing state judicial proceeding because the filing of the grievance was a predicate to, but did not start, a state judicial proceeding.2

We reject O’Neill’s argument, as the district court did, because the Ohio Supreme Court has held that the filing of a grievance is the beginning of the judicial process. Hecht v. Levin, 66 Ohio St.3d 458, 613 N.E.2d 585, 588 (1993). Hecht, the court was asked to decide whether the filing of a grievance under Gov. Bar R. V3 is part of a judicial proceeding in the context of a libel and slander lawsuit. If the filing of a grievance is part of a judicial proceeding, then the griever is immune from libel and slander charges. The court concluded that the filing of a grievance is part of a “judicial proceeding” because “such a filing initiates the purely judicial disciplinary procedure created by this court pursuant to Article IV of the Ohio Constitution.” Id. The court recognized that a grievance is subject to investigation *644and independent review in order to “separate the wheat from the chaff’ before the filing of a formal complaint by the appropriate state authorities. Id. at 589. Nevertheless, the court held that the filing and investigation of a grievance was part of a state “judicial proceeding.”

Despite this clear statement that judicial proceedings begin with the filing of a grievance, O’Neill argues that Hecht is not controlling because it determined that the filing of a grievance begins the judicial process in the context of a lawsuit, not a disciplinary action. We are not persuaded that the different context requires us to disregard Hecht’s unambiguous holding. Accordingly, the district court should have refrained from exercising its jurisdiction in this case.

The injunction ordered by the district court is DISSOLVED, and the judgment in favor of O’Neill is VACATED.