Squire v. Coughlan

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0440p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

CAROLE R. SQUIRE,

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No. 05-4513

v.

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JONATHAN E. COUGHLAN, -

Defendant-Appellee. -

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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

Decided and Filed: November 28, 2006

Before: GILMAN and GRIFFIN, Circuit Judges; HEYBURN, Chief District Judge.*

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COUNSEL

ARGUED: Percy Squire, PERCY SQUIRE CO., LLC, Columbus, Ohio, for Appellant. Stephen

W. Funk, ROETZEL & ANDRESS, LPA, Akron, Ohio, for Appellee. ON BRIEF: Percy Squire,

PERCY SQUIRE CO., LLC, Columbus, Ohio, for Appellant. Stephen W. Funk, ROETZEL &

ANDRESS, LPA, Akron, Ohio, for Appellee.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Carole R. Squire, an Ohio state-court judge, filed

an action under 42 U.S.C. § 1983 against Jonathan E. Coughlan, Disciplinary Counsel for the

Supreme Court of Ohio. She contends that her right to the due process of law was violated when

Coughlan failed to provide her with the names of all persons contacted by the Ohio Disciplinary

Counsel in the course of an investigation into allegations of her judicial misconduct. Judge Squire

received a draft complaint notifying her of the allegations and giving her the opportunity to respond

before the complaint was filed with a three-member panel of the Board of Commissioners on

Grievance and Discipline (the Board). Instead of responding to the draft complaint, Judge Squire

filed suit in federal district court, asking among other things for a temporary restraining order to

enjoin the state disciplinary proceedings.

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The Honorable John G. Heyburn II, Chief United States District Judge for the Western District of Kentucky,

sitting by designation.

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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 below,

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. Gov. Bar R. V, § 4(I) requires that the judge who is the subject of

a grievance or investigation be given “notice of each allegation and the opportunity to respond to

each allegation” before the investigation is completed.

The Disciplinary Counsel determines, once the investigation is completed, whether there is

substantial evidence of a violation 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 filed with the Board. Any response by the investigated judge is attached to the draft

complaint before it is filed. Once the complaint is filed, a three-member panel of the Board

determines whether there is probable cause to certify the complaint and commence a formal

proceeding. The complaint becomes public information only after it is certified by the panel.

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 on December 31, 2006. Jonathan Coughlan, the

Disciplinary Counsel for the Supreme Court of Ohio, investigates and prosecutes judicial grievances

filed under Gov. Bar R. V and Gov. Jud. R. II. At some point prior to October 5, 2005, Coughlan

notified Judge Squire that she was the subject of an investigation by the Ohio Disciplinary Counsel

for alleged violations of the Canons of Judicial Ethics.

Coughlan testified at the district court’s evidentiary hearing 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, contained the names of all

No. 05-4513 Squire v. Coughlan Page 3

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 for 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. Coughlan 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

prohibiting Coughlan from proceeding with the probable-cause hearing, a preliminary and a

permanent injunction requiring Coughlan to provide her with the names of all of the complainants

and witnesses against her, and attorney fees. The district court dismissed the complaint sua sponte

for lack of jurisdiction, finding that Judge Squire’s ongoing state disciplinary proceedings required

that the federal court abstain pursuant to the principles set forth in Younger v. Harris, 401 U.S. 37

(1971).

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 Board’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 challenges.” 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

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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.” Ohio Const. art. IV, § 2(B)(1)(g); see also Berger, 983 F.2d at 723-

24 (holding that abstention was proper under Younger and Middlesex where two attorneys had sued

for injunctive, declaratory, and monetary relief arising out of state-bar disciplinary proceedings

against them). Members of the Board are appointed by the Chief Justice and Justices of the Ohio

Supreme Court. Gov. Bar R. V, § 1(D). The Board, with the approval of the Supreme Court,

appoints the Disciplinary Counsel to investigate allegations of judicial misconduct. Gov. Bar R. V,

§ 3(B). Such investigations are an adjudicative, rather than a legislative, function. See Middlesex,

457 U.S. at 433-34; Fieger v. Thomas, 74 F.3d 740, 744 (6th Cir. 1996) (holding that state

disciplinary proceedings against an attorney are “judicial in nature for purposes of Younger

abstention”); Berger, 983 F.2d 718, 723 (holding that “Ohio [disciplinary] procedures are judicial

in nature” for abstention purposes). Thus, the first prong of Younger abstention is satisfied.

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. Gov. Bar R. V, § 2(A).

Thus, the second prong of Younger is satisfied.

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. Addressing 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

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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

raise his constitutional claim. Id. at 435. The Supreme Court rejected this argument, noting that the

attorney had “failed to respond to the complaint filed by the local Ethics Committee and failed even

to attempt to raise any federal constitutional challenge in the state proceedings.” Id.

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,

Gov. Bar R. V “does not expressly permit or deny Plaintiff the ability to raise any constitutional

objection.”

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 out 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 to 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 disciplinary 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 Fed. R. Civ. P. 12(h)(3) (“Whenever it appears by

suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court

shall dismiss the action.”).

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

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in which he was incarcerated because hobby materials purchased 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 42 U.S.C. § 1983, claiming that the defendants’ failure to locate his package deprived him of

property without due process of law in violation of the Fourteenth Amendment. Id.

The Court held that the inmate had made a threshold showing of a due process violation by

alleging that (1) the defendants 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 because

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.