Opposition Brief — O'Neill v. Coughlan (No. 08-177)

a 2) OCT 10 1002 |

No. 08-177

ars

IN THE

Supreme Court of the Wuited States

WILLIAM M. O’NEILL,

Petitioner,

JONATHAN COUGHLAN

OHIO DISCIPLINARY COUNSEL,

Respondent.

ON PETITION FOR A WRiT OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

Nancy H. RoGers

Attorney General of Ohio

STEPHEN W. FuNK

Counsel of Record

ROETZEL & ANDRESS, LPA

222 S. Main Street, Suite 400

Akron, OH 44308

(330) 376-2700

Outside Counsel for Respondent

Jonathan Coughlan,

Ohio Disciplinary Counsel

218767 cr

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

Il.

IIT.

a

QUESTIONS PRESENTED

Whether the United States Court of Appeals for

the Sixth Circuit properly followed Ohio law in

determining that Ohio’s disciplinary proceedings

for state court judges and judicial candidates are

commenced upon the filing of a grievance with

Ohio’s Disciplinary Counsel, Jonathan Coughlan.

Whether the United States Court of Appeals for

the Sixth Circuit properly followed long-standing

Supreme Court precedent in determining that

Younger abstention cannot be waived by a state

defendant unless it makes a clear and explicit

statement that it does not want the federal courts

to apply Younger abstention and force the case

back into the state judicial system.

Whether this case presents the kind of

“exceptional circumstances” necessary to warrant

an exception to Younger abstention, where, as

here, Ohio’s judicial process affords an adequate

opportunity to raise constitutional claims, and may

permit the State of Ohio to resolve the alleged

grievance on other grounds and thereby avoid an

unnecessary constitutional confrontation.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED ................

yo Fe gat gy) 9. Sree a

A. OQhio’s Judicial Grievance Process ......

B. Summary Of Proceedings ..............

1. The District Court Proceedings ....

2. The Court of Appeals’ Opinion .....

REASONS FOR DENYING THE PETITION ...

I.

THE SIXTH CIRCUIT PROPERLY

APPLIED STATE LAW IN DETER-

MINING THAT OHIO’S DISCIPLIN-

ARY PROCEEDINGS ARE COM-

MENCED BY THE FILING OF A

GRIEVANCE WITH THE OHIO

DISCIPLINARY COUNSEL. ..........

10

11

12

ill

Contents

Page

A. The Issue Of Whether Ohio’s

Disciplinary Proceedings Com-

menced Upon The Filing Of A

Grievance Presents A Question Of

State Law That Does Not Require

ei aa 12

B. The Sixth Circuit’s Interpretation Of

Ohio Law Does Not Cenflict With The

Decisions Of Any Other Federal

Ss ic 04a owed ae ane eae es 15

Il. THE SIXTH CIRCUIT’S WAIVER

RULING IS BASED UPON A PROPER

APPLICATION OF EXISTING

SUPREME COURT PRECEDENT TO

THE FACTUAL CIRCUMSTANCES

ge gs | ER are re eee 16

Ill.THE PETITION DOES NOT

PRESENT COMPELLING REASONS

FOR WHY THIS COURT SHOULD

DECIDE WHETHER THE “EXCEP-

TIONAL CIRCUMSTANCES” EXIST

TO WARRANT AN EXCEPTION TO

YOUNGER ABSTENTION. ........... 23

I cane or iescexercenss densa 29

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Amanatullah v. Colorado Bd. of Medical

Examiners, 187 F:3d 1160 (10% Cir. 1999) .... 25

Barichello v. McDonald, 98 F.3d 948 (7 Cir.

| SEINRSE TSAO fat Rex pve saay tre reise ok ror Ree ee 23

Bellotti v. Baird, 428 U.S. 182 (1976) .......... 3, 21

Berger v. Cuyahoga Co. Bar Ass’n, 983 F.2d 718

(6 Cir.), cert. denied, 508 U.S. 940 (1993) ... passim

Boardman v. Estelle, 957 F.2d 1523 (9 Cir. 1992)

paleidk Giieaatheyae eee Bok a oe Ik CaaS 22

Brown v. Hotel and Restaurant Employees and

Bartenders Int'l Union Local 54, 468 U.S. 491

PR ches chs od cewek sho ae eee 3, 19, 20

Columbia Basin Apt. Ass’n. v. City of Pasco,

wae Fae Tak GP Cir FO1) ook cece svccicess 22

Communications Telesystems Int'l v.

California Public Utilities Comm.,

14 F. Supp.2d 1165 (N.D. Cal. 1998) ......... 23

Crenshaw v. Supreme Court of Indiana, 170 F.3d

725 (7 Cir.), cert. denied, 528 U.S. 871 (1999)

eee eee Eee tT ere Pee Pere Pree ee passim

Vv

Cited Authorities

Page

H.C. ex rel. Gordon v. Koppell, 203 F.3d 610

a he Gi in ta ids oe Ww Aa 22

Harper v. Office of Disciplinary Counsel,

Supreme Court of Ohio, 113 F.2d 1234, 1997

WL 225899 (6" Cir. 1997) ......... 4, 24, 26, 27-28

Hecht v. Levin, 66 Ohio St.3d 458 (1993) ...2, 10, 13, 14

Hensler v. District Four Grievance Comm.,

tee eee eee ce Car: BBS)... .. 0 eee 16

Hirsh v. Justices of the Supreme Court of

California, 67 F.3d 708 (9 Cir. 1995) ....... 16

Kleenwell Biohazard Waste and General

Ecology Consultants, Inc. v. Nelson, 48 F.3d

es 6 aa oa in alee a nanowiene 22

Louisiana Debating & Leterary Ass’n v. City

of New Orleans, 42 F.3d 1483 (5" Cir. 1995) .. 15

Louisville Country Club v. Watts, 178 F.3d 1295

(Table) 1999 WL 232683 (6 Cir.), cert. denied,

OD nos cock cevceswesesucn 3

Mason v. Departmental Disciplinary Comm..,

894 F.2d 512 (2d Cir.), cert. dented, 497 U.S.

vi

Cited Authorities

Page

Middlesex Cty. Ethics Committee v. Garden

State Bar Ass’n, 457 U.S. 423 (1982) ...... passim

Morrow v. Winslow, 94 F.3d 1386 (10 Cir. 1996)

ele ack paw ex 6 60 00 0 00s 22

Ohio Bureau of Employment Services v.

Hodory, 431 U.S. 471 (1977) ............ 3, 18, 20

Ohio Civil Rights Commission v. Dayton

Christian Schools, 477 U.S. 619 (1986) ..... 21, 25

O’Neill v. Coughlan, 511 F:3d 638 (6" Cir. 2008) .. 1

O’Neill v. Coughlan, 436 F. Supp.2d 906 (N.D.

a aha aga sess ks Vo¥ ees ess 9, 23

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107

ae 25, 27

Planned Parenthood v. Atchison, 126 F.3d 1042

lif cals ee ke oeb aces ene 15

San Remo Hotel v. City and County of

San Francisco, 145 F3d 1095 (9" Cir. 1988) ... 23

Sosna v. Iowa, 419 U.S. 393 (1975) ...... 3, 17, 20, 21

Spargo v. N.Y. State Commission on Judicial

Conduct, 351 F.3d 65 (2d Cir. 2008),

cert. denied, 541 U.S. 1085 (2004) ........ passim

Vil

Cited Authorities

Squire v. Coughlan, 469 F.3d 551 (6" Cir. 2006) .. passim

Telco Communications, Inc. v. Carbaugh,

S86 F2d 1200 64" Cor, 19GB) nono ccs cvecccies 15

Tesmer v. Granholm, 333 F.3d 683 (6 Cir. 2008),

rev'd on other grounds, Kowalski v. Tesmer,

Oe Ree Be EE vss ceed ce cwbueveaenee 26

Yamaha Motor Corp. U.S.A. v. Stroud, 179 F3d

a BOE iy enue hha pene ies eueese cs a

Younger v. Harris, 401 U.S. 37 (1971) ....... en

Other

Ohio Supreme Court Rules for the Government

2 8 Re” er ee eee ee passim

Ohio Supreme Court Rules for the Government

of the Judiciary, Rule II .............. 6, 7, 12, 13

1

INTRODUCTION

Petitioner William O’Neill (“Petitioner” or “O’ Neill”)

has presented no “compelling reasons” for why his

Petition for Writ of Certiorari (“Petition”) should be

granted under Sup. Ct. R. 10. The decision by the

United States Court of Appeals for the Sixth Circuit

does not conflict with any decision of the United States

Supreme Court or any other court of appeals. Rather, it

merely follows existing precedent to hold that Younger

abstention applies fully to Ohio’s judicial disciplinary

proceedings and was not waived by Ohio’s Disciplinary

Counsel during the course of the trial court proceedings.

O’Neill v. Coughlan, 511 F.3d 638 (6% Cir. 2008). Indeed,

it is now well-settled that Younger abstention applies to

state disciplinary proceedings that are commenced

against lawyers and judges for alleged violations of

ethical canons and disciplinary rules.’ By so doing,

Younger honors the State’s sovereign right to process

judicial grievances without undue federal interference

and avoids unwarranted determinations of federal

constitutional questions. Thus, the Sixth Circuit’s

decision is consistent with existing precedent and does

not warrant further review.

In his Petition, O’Neill does not cite a single case,

which has ever held that Younger abstention should not

1 See Middlesex Cty. Ethics Comm. v. Garden State Bar

Ass’n, 457 U.S. 423 (1982); Spargo v. N.Y. State Comm. on

Judicial Conduct, 351 F:3d 65 (2d Cir. 2003), cert. denied, 541

U.S. 1085 (2004); Crenshaw v. Supreme Court of Indiana, 170

Fi3d 725 (7 Cir.), cert. denied, 528 U.S. 871 (1999); Berger v.

Cuyahoga Cty. Bar Ass’n, 983 F.2d 718, 720 (6" Cir.), cert. denied,

508 U.S. 940 (1993).

2

be applied to state disciplinary proceedings. While he

argues that the Sixth Circuit’s decision conflicts with

other appellate decisions relating to whether

administrative proceedings are “ongoing” for purposes

of Younger abstention, none of these cases actually

involves state disciplinary proceedings against judges

or attorneys and thus none are relevant to the question

of when Ohio’s disciplinary proceedings commence

under Ohio law. As this Court has held, the question of

whether state disciplinary proceedings are “ongoing”

for purposes of Younger abstention is a question.

controlled by state law, not federal law. Middlesex Cty.

Ethics Comm., 457 U.S. at 483. Thus, the Sixth Circuit

correctly examined Ohio state law in determining that

Ohio’s disciplinary proceedings were commenced by the

filing of a grievance against Judge O’Neill. (Pet. App.

12-13) (citing Hecht v. Levin, 66 Ohio St.3d 458, 613

N.E.2d 585, 588 (1993)). Accordingly, contrary to

Petitioner’s suggestion, the Sixth Circuit’s decision does

not create any circuit conflict at all.

Similarly, the Petition has failed to present

compelling reasons for why the Court should review

whether Younger abstention was waived by Respondent

during the trial court proceedings. Contrary to the

Petitioner’s suggestions, this waiver issue does not

present an “unsettled” question of federal law that has

never been decided by this Court. Rather, the Sixth

Circuit’s opinion is based upon a faithful application of

existing Supreme Court precedent, which has repeatedly

held that a state defendant cannot waive Younger

abstention unless it clearly and explicitly wrges the

federal court not to abstain, but to retain jurisdiction in

order to honor the State’s request for an immediate

“7a

resolution of a disputed constitutional issue. See, e.g.,

Brown v. Hotel and Restaurant Employees and

Bartenders Int'l Union Local 54, 468 U.S. 491, 500, n. 9

(1984); Ohio Bureau of Employment Services v. Hodory,

431 U.S. 471, 477-480 (1977); Sosna v. Iowa, 419 U.S.

393, 396, n. 3 (1975). As the Sixth Circuit observed and

as Petition itself concedes, this Court has held that

Younger abstention may be raised swa sponte on appeal.

(Pet. App. 8-9) (citing Sosna and Hodory). Thus, both

this Court and the Sixth Circuit have held that Younger

can be raised at any time, even after the court of appeals

or the district court has decided the merits of the case.

See, e.g., Louisville Country Club v. Watts, 1999 WL

232683 (6" Cir.), cert. denied, 528 U.S. 1061 (1999) (citing

Bellotti v. Baird, 428 U.S. 132, 143, n. 10 (1976)).

Accordingly, the Sixth Circuit’s resolution of this

“waiver” issue is consistent with existing Supreme Court

precedent and does not raise a compelling reason for

granting the Petition.

Finally, the Court should reject the Petitioner’s

argument that this case presents the kind of

“extraordinary circumstances” that warrant an

exception to Younger abstention. This argument was

not raised during the district court proceedings and thus

was not addressed by the court of appeals or the district

court in their opinions. (Pet. App. 11-12, 40-41). Indeed,

contrary to Petitioner’s suggestions, this Court has

already rejected the argument that an alleged “chilling

effect” upon First Amendment rights can be a sufficient

basis for not applying Younger abstention. Younger, 401

U.S. at 51 (“[A] ‘chilling effect, even in the area of

First Amendment rights, has never been considered a

sufficient basis, in and of itself, for prohibiting state

4

action”). Thus, even in the face of alleged First

Amendment claims, the federal courts have consistently

applied Younger to state disciplinary proceedings. See,

e.g., Middlesex, 457 U.S. at 432-433; Spargo, 351 F3d

at 81; Crenshaw, 170 F.3d at 729; Berger, 983 F.2d at 720;

Harper v. Office of Disciplinary Counsel, Supreme

Court of Ohio, 113 F.3d 1234, 1997 WL 225899, *2 (6"

Cir. 1997). Accordingly, the Court should deny the

Petition.

STATEMENT OF THE CASE

A. Ohio’s Judicial Grievance Process

This case arises out of a grievance that was filed

with Ohio’s Disciplinary Counsel, Respondent Jonathan

Coughlan (“Respondent” or “Coughlan”), against a

member of Ohio’s state judiciary: Judge William O’Neill

of Ohio’s Eleventh District Court of Appeals. Under

Rule II of the Ohio Supreme Court’s Rules for the

Government of the Judiciary (“Gov. Jud. R.”) and Rule

V of the Ohio Supreme Court’s Rules for the Government

of the Bar (“Gov. Bar. R.”), the filing of a grievance with

the Office of Disciplinary Counsel alleging misconduct

of a state court judge or judicial candidate initiates a

disciplinary process that must be “brought, conducted,

and disposed of” in accordance with the above-

referenced rules and procedures. Ohio’s disciplinary

process for judicial grievances is accurately described

in another published opinion, Squire v. Coughlan, 469

F.3d 551, 553-554 (6 Cir. 2006), that was decided in 2006.

As set forth in Squire, “a disciplinary proceeding

against a judge ordinarily is commenced by the

filing of a grievance with the Ohio Disciplinary Counsel.”

5

Squire, 469 F.3d at 553. “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.” Jd. (Gov. Bar R. V, § 4(C)). Among other

things, “Gov. Bar V, § 4(1) 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.” /d.

Once the investigation is completed, the Disciplinary

Counsel then determines whether there is substantial

evidence of a violation. Squire, 469 F.3d at 553. If the

evidence is insufficient, the investigation is dismissed

and remains confidential. /d. If the evidence is sufficient,

then the Disciplinary Counsel files a complaint with the

Board of Commissioners on Grievances and Discipline

(the “Board”). Jd., 469 F.3d at 553-554. Once the

complaint is filed, a three-member panel of the Board

determines, upon an independent review of the

investigation materials, whether there is probable cause

to certify a formal complaint. /d. at 554. A certified

complaint against a judge is then referred to a separate

panel of Board members for an evidentiary hearing. /d.

The respondent judge has the opportunity to answer

the complaint and to engage in discovery, including

depositions, interrogatories and document requests. /d.

Under Gov. Bar R. V, Section 6(G), (H), or (K), the

Hearing Panel and/or the entire Board have the

authority to dismiss the complaint and/or to find no

violation at any time. Moreover, if a violation is found

and any sanctions are recommended, the Ohio Supreme

Court will conduct a judicial review of the administrative

proceedings under Gov. Bar R. V, Section 8.

6

As explained in Squire, there are no provisions of

Gov. Bar. R. V or Gov. Jud. R. II that explicitly prohibit

a judge or judicial candidate from raising’ constitutional

issues during the state disciplinary process. Squire, 469

F.3d at 557. Indeed, upon judicial review of the

disciplinary proceedings, the Ohio Supreme Court has

the authority to construe the canons narrowly, if

necessary, and to rule upon the constitutionality of any

judicial canons or rules. Moreover, if the Ohio Supreme

Court adopts a construction of the judicial canons that

violates the First Amendment, the affected party would

have the opportunity to seek federal court review of the

Ohio Supreme Court’s decision via a timely petition for

writ of certiorari with the U.S. Supreme Court. Thus,

as the Sixth Circuit held in Squire, a judge accused of

misconduct would have the right to raise any

constitutional issues, if necessary, in the state judicial

system. Jd. at 557.

B. Summary Of Proceedings.

1. The District Court Proceedings

In this case, it is undisputed that a federal court

action was commenced on August 12, 2004, in order to

halt the Ohio Disciplinary Counsel’s processing of a

grievance that was filed under Gov. Bar. R. V and Gov.

Jud. R. Il. In particular, the disciplinary process was

commenced on July 19, 2004, when the Office of

Disciplinary Counsel received a grievance against Judge

O’Neill from James Trakas, Chairman of the Cuyahoga

County Republican Party. (Pet. App. 3). As required by

the disciplinary rules, the Disciplinary Counsel

responded to the Trakas Grievance by sending a letter

7

to Judge O’Neill to inform him of the grievance and the

commencement of a mandatory investigation under Gov.

Bar. R. V. (Pet. App. 4). In particular, the letter stated:

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 [see, Gov.

Bar R. V(11)(E)(3)].

(Id.)

Rather than respond to the Trakas Grievance in

accordance with the procedures established by Ohio law,

Judge O’Neill filed a complaint in federal court that

sought to enjoin the entire disciplinary process by

prohibiting the Disciplinary Counsel from “continuing

to investigate” the grievance or “taking any other action

against Plaintiff for alleged violation of certain

provisions of Ohio’s Code of Judicial Conduct.” Both the

Complaint and TRO Motion were filed on August 12,

8

2004, after the filing of the Trakas Grievance and the

commencement of a mandatory investigation by the

Disciplinary Counsel.

In a position statement and at hearing held on

August 16, 2004, counsel for Respondent expressly

urged the district court to dismiss the complaint for lack

of jurisdiction because the case was not ripe for review

and because Coughlan was not the proper party. After

the district court entered a TRO, Coughlan filed a

combined Motion to Dismiss and Opposition to Plaintiff’s

Motion for Preliminary Injunction that again urged the

district court to dismiss the complaint and not decide

the merits of the case. Although the original motion did

not expressly cite Younger, it argued that O’Neill’s claims

were not ripe for adjudication because the Disciplinary

Counsel had not yet completed his investigation of the

grievance under Gov. Bar R. V. As such, Respondent

argued that the complaint should be dismissed for lack

of jurisdiction because the canons had not yet been

applied by the proper state authorities against Judge -

O’Neill. (/d.)

In moving and explicitly urging the district court to

dismiss the complaint, Respondent also defended

against the preliminary injunction by arguing, in the

alternative, that Judge O’Neill had failed to

demonstrate the relevant factors for a preliminary

injunction, including a likelihood of success on the

merits. In addressing the merits of the constitutional

claims, however, Respondent did not “expressly urge”

the district court to retain jurisdiction in order to decide

the constitutionality of any judicial canon in the first

instance. Rather, Respondent expressly urged the

9

aistrict court to dismiss the complaint, so that Ohio’s

disciplinary process could continue in accordance with

the rules and procedures established by the Ohio

Supreme Court.

On September 14, 2004, the district court issued a

Preliminary Injunction that enjoined the Disciplinary

Counsel “from enforcing, threatening to enforce, or

recommending enforcement” of the disputed judicial

canons and from investigating, threatening to

investigate, or recommending investigation of rossible

violations thereof.” (Pet. App. 70-71). Although the

district court again rejected the ripeness argument, it

did not expressly deny Respondent’s Motion to Dismiss,

which remained pending. (Pet. App. 5).

On October 6, 2004, Respondent filed a

“supplement” to its pending Motion to Dismiss, which

argued that the district court also should dismiss the

complaint based upon Younger abstention. (Pet. App.

5, 28). The district court did not rule upon the Motion

to Dismiss, however, nor address the impact of Younger

abstention at that time. Rather, after Respondent

further supplemented its Younger arguments and

moved to vacate and dissolve the preliminary injunction,

the district court issued a second Memorandum and

Order on June 16, 2006, which agreed that Younger was

fully applicable to this case, but concluded that the issue

had been “waived” by the Disciplinary Counsel in the

course of briefing the Plaintiff’s motion for a preliminary

injunction. O’Neill v. Coughlan, 436 F. Supp.2d 906 (N.D.

Ohio 2006) (Pet. App. 36-44). Thereafter, the district

court converted its Preliminary Injunction into a

Permanent Injunction, and Respondent filed a timely

10

notice of appeal from the district court’s final judgment

to the United States Court of Appeals for the Sixth

Circuit. (Pet. App. 25-35).

2. The Court of Appeals’ Opinion

On appeal, O’Neill did not dispute that Younger

abstention applied to ongoing disciplinary proceedings

that were commenced against state court judges and

judicial candidates under Ohio law. (Pet. App. 12, fn. 2).

Although O’Neill argued that the filing of a grievance

did not commence a disciplinary proceeding against

Judge O’Neill, the Sixth Circuit flatly rejected this

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” under Ohio law.

(Pet. App. 12) (citing Hecht v. Levin, 613 N.E.2d 585,

588 (Ohio 1993)). In Hecht, the Ohio Supreme Court was

asked to decide whether the filing of a grievance is part

of a “judicial proceeding” under state law for purposes

of determining whether the grievance was subject to

an absolute privilege from defamation. Although O’ Neill

vainly sought to distinguish Hecht on the facts, the Sixth

Circuit rejected this argument, concluding that Hecht

provided a “clear statement that judicial proceedings

begin with the filing of a grievance” and “we are not

persuaded that the different context requires us to

disregard Hecht’s unambiguous holding.” (Pet. App. 13).

Accordingly, the court of appeals rejected O’Neill’s

argument and held that Younger abstention was fully

applicable to this case. (/d.).

In this regard, the court of appeals also concluded

that Younger abstention had not been waived by

11

Respondent during the trial court proceedings. (Pet.

App. 7-11). Citing and following Supreme Court

precedent, the Sixth Circuit held that Younger

abstention was not waived merely because the State of

Ohio did not raise this issue “either in the state’s first

responsive pleading or before the state addressed the

merits” in opposing the motion for preliminary

injunction. (Pet. App. 9). Rather, the Sixth Circuit

followed Supreme Court precedent to conclude that

Younger may be raised swa sponte on appeal and should

not be disregarded unless a state defendant makes a

“clear and explicit statement that it did not want the

Court to apply Younger.” ([d.). Accordingly, the court

held that the failure to raise Younger in the original

motion to dismiss “did not constitute a waiver of the

right to seek dismissal of the complaint on the grounds

of Younger abstention.” (/d.)

REASONS FOR DENYING THE PETITION

Petitioner has not presented compelling reasons to

grant a petition for writ of certiorari under S. Ct. R. 10.

The Sixth Circuit’s decision does not conflict with a

decision of this Court or any court of appeals nor does it

raise an important federal question that has not been

settled by this Court. Rather, the opinion merely follows

existing Supreme Court precedent to hold that Younger

abstention applies fully to Ohio’s judicial disciplinary

proceedings and was not waived by the Ohio Disciplinary

Counsel merely because it was not initially raised in the

original motion to dismiss. The decision is based upon a

proper application of existing precedent to the particular

facts of this case and does not warrant further review.

See S. Ct. R. 10 (“a petition for writ of certiorari is rarely

12

granted when the asserted error consists of... the

misapplication of a properly stated rule of law”).

Accordingly, the Court should deny the Petition.

I. THE SIXTH CIRCUIT PROPERLY APPLIED

STATE LAW IN DETERMINING THAT

OHIO’S DISCIPLINARY PROCEEDINGS ARE

COMMENCED BY THE FILING OF A

GRIEVANCE WITH THE OHIO DISCIPLINARY

COUNSEL.

A. The Issue Of Whether Ohio’s Disciplinary

Proceedings Commenced Upon The Filing Of

A Grievance Presents A Question Of State

Law That Does Not Require Further Review.

The Petition’s first argument seeks to challenge the

Sixth Circuit’s interpretation of state law relating to

when a judicial disciplinary proceeding is “commenced”

under the Ohio Supreme Court’s Rules for the

Government of the Bar (“Gov. Bar R.”) and the

Government of the Judiciary (“Gov. Jud. R.”). This first

argument therefore is governed by state law and does

not present an important federal question that might

warrant Supreme Court review. As this Court has held,

the question of whether state disciplinary proceedings

are “ongoing” for purposes of Younger abstention is

controlled by state law, not federal law. Middlesex Cty.

Ethics Comm., 457 U.S. at 483 (examining New Jersey

law in determining that disciplinary proceedings were

“ongoing” under Younger). Here, as the Sixth Circuit

properly concluded, the Supreme Court of Ohio has held

that the “filing of a grievance” under Gov. Bar R. V

(which applies to judges under Gov. Jud. R. II) is an

13

action that “initiates” disciplinary proceedings under

Ohio law. Thus, the Sixth Circuit’s decision is consistent

with Ohio law and does not present an important

question of federal law that might warrant Supreme

Court review.

In his Petition, O’Neill argues that Hecht is not

applicable to this case because it merely addressed

whether the absolute privilege against defamation

applies to statements made in a written grievance filed

under Gev. Bar. R. V. As the Sixth Circuit explained,

however, Hecht is not distinguishable on these grounds.

Rather, Hecht applies to this case because it constitutes

an unambiguous determination by the Ohio Supreme

Court about wher Ohio’s disciplinary process begins

under Ohio law. In deciding whether absolute immunity

applied to the filing of a grievance with the Ohio

Disciplinary Counsel, the Ohio Supreme Court was

required to decide whether the filing of a grievance is

part of a “judicial proceeding.” — 1.e., the purely judicial

“disciplinary process” set forth in Gov. Bar R. V. That is

the entire point of the Hecht case and why it so clearly

and unambiguously establishes that a disciplinary

proceeding commences upon the filing of a grievance

under Gov. Bar R. V, which, as the Petition concedes,

sets forth the rules and procedures for handling any

grievance filed against lawyers and against judges and

judicial candidates under Gov. Jud. R. II. (Pet. 10-13,

n. 9) (conceding that the state rules and procedures set

forth in Gov. Bar. R. V applies in the same manner to

“judges, judicial candidates and lawyers”). Accordingly,

the court of appeals properly followed Hecht in deciding

whether the filing of a grievance commenced a “judicial

proceeding” under Ohio law.

14

O’Neill also seeks to distinguish Hecht because it

allegedly failed to analyze “the role of a citizen’s written

grievance in the context of balancing state versus

federal jurisdictional interests” under Younger. (Pet. 25,

n. 30). This argument is meritless and was properly

rejected by the lower courts. Hecht is relevant because

it defines what initiates and constitutes “judicial

proceedings” under Ohio law. In Crenshaw v. Supreme

Court of Indiana, 170 F.3d 725 (7 Cir. 1999), for

example, the Seventh Circuit also was asked to

determine when Indiana’s disciplinary proceedings were

commenced for purposes of Younger abstention.

To answer this question, the Seventh Circuit examined

Indiana’s disciplinary rules and concluded that

disciplinary proceedings were commenced upon the

docketing of a grievance and the initiation of an

investigation. Jd. Accordingly, as in Crenshaw, the Sixth

Circuit properly examined state law in deciding that,

like Indiana’s disciplinary proceedings, Ohio’s

disciplinary proceedings were commenced upon the

filing of a grievance and the initiation of an investigation

by the Disciplinary Counsel.

Indecd, this is not the first time that the Sixth

Circuit has examined this particular issue under Ohio

law. Rather, since this Court’s 1983 decision in Middlesex

Cty., the Sixth Circuit has consistently held that

Younger abstention applies to Ohio’s disciplinary

proceedings and therefore has refused to enjoin an

ongoing investigation that was commenced against a

judge or an attorney by the Ohio Disciplinary Counsel

or a local bar association under Gov. Bar. R. V. See, e.g.,

Squire, 469 F.3d at 553 (“a disciplinary proceeding

against a judge ordinarily is commenced by the filing of

15

a grievance with the Ohio Disciplinary Counsel’); Berger

v. Cuyahoga County Bar Ass’n, 983 F.2d 718, 720 (6"

Cir.), cert. denied, 508 U.S. 940 (1993) (applying Younger,

even though the alleged grievance against the attorney

was still “in the midst of the investigation”). Accordingly,

the Court should reject the Petition’s argument and

conclude that this question of state law was properly

decided by the Sixth Circuit and does not warrant

Supreme Court review.

B. The Sixth Circuit’s Interpretation Of Ohio

Law Does Not Conflict With The Decisions Of

Any Other Federal Court.

In an effort to manufacture a circuit conflict that

might warrant Supreme Court review, the Petition also

argues that the Sixth Circuit’s opinion conflicts with the

Fourth Circuit’s opinion in Telco Communications, Inc.

v. Carbaugh, 885 F.2d 1225 (4th Cir. 1989), the Fifth

Circuit’s opinion in Louisiana Debating & Literary

Ass’n v. City of New Orleans, 42 F.3d 1483 (5th Cir. 1995),

and the Eighth Circuit’s decision in Planned Parenthood

v. Atchison, 126 F.8d 1042 (8 Cir. 1997). This is not

correct. None of these decisions involve disciplinary

proceedings against a lawyer or judge. Rather, they all

involve other types of administrative matters that were

based upon other types of state laws. Thus, none of the

decisions have anything to do with determining when

disciplinary proceedings are commenced under Ohio law.

In fact, with respect to question of when disciplinary

proceedings are commenced against state court judges

and attorneys under state law, the Sixth Circuit’s

analysis is actually consistent with the analysis of other

16

circuit courts on this issue. See Crenshaw, 170 F.3d at

728 & fn. 1 (observing that its analysis of Indiana’s

disciplinary proceedings was consistent with other

circuits that have recognized that disciplinary

proceedings “are progressive, incremental processes”

and that “the federalism concerns that Younger and

Middlesex protect are implicated when an attorney is

subject to a formal! investigative procedure”) (citing

Hirsh v. Justices of the Supreme Court of California,

67 F.3d 708, 712 (9" Cir. 1995); Berger v. Cuyahoga

County Bar Ass’n, 983 F.2d 718 (6" Cir.), cert. denied,

508 U.S. 940 (1993); Mason v. Departmental

Disciplinary Comm ., 894 F:2d 512 (2d Cir.), cert. denied,

497 U.S. 1025 (1990); Hensler v. District Four Grievance

Comm., 790 F.2d 290 (5" Cir. 1986)). Accordingly, the

Court should conclude that the Sixth Circuit’s decision

does not create a circuit conflict that might warrant

further review under S. Ct. R. 10.

Il. THE SIXTH CIRCUIT’S WAIVER RULING IS

BASED UPON A PROPER APPLICATION OF

EXISTING SUPREME COURT PRECEDENT

TO THE FACTUAL CIRCUMSTANCES

PRESENTED.

The Sixth Circuit’s decision re: the alleged waiver

of Younger abstention also does not create a circuit

conflict nor present an important federal question that

has not been settled by this Court. To the contrary, the

decision is based upon a proper application of existing

Supreme Court precedent, which has consistently held

that a waiver can arise only if the State clearly and

explicitly states that it does not want the federal courts

to apply Younger because it prefers to obtain an

17

immediate federal adjudication of a disputed

constitutional claim. By so doing, this Court has not

sought to penalize states for failing to raise Younger

abstention, but only sought to advance the principle of

comity and federalism underlying Younger by honoring

a state’s request to retain jurisdiction and not force the

case back into the state judicial system against the

state’s will. Accordingly, the Sixth Circuit’s decision is

consistent with Supreme Court precedent and does not

present an unsettled question of federal law that might

warrant further review.

Indeed, a review of this Court’s precedent confirms

that the Sixth Circuit’s resolution of the waiver issue

was properly decided. The issue of Younger waiver was

first discussed by this Court in Sosna v. lowa, 419 U.S.

393, 396, n. 3 (1975). In Sosna, the plaintiff sought to

challenge the constitutionality of a state statute that

required a petitioner in a divorce action to be a resident

of the state for at least one year. After a three-judge

panel upheld the constitutionality of the state law, this

Court raised Younger abstention sua sponte, specifically

asking the parties to discuss “whether the United States

District Court should have proceeded to the merits of

the constitutional issue presented in light of [ Younger].”

Id., 419 U.S. at 396. In this regard, there was no

suggestion by this Court or by the plaintiff that Iowa

had “waived” Younger abstention merely because it

defended the merits of the state law in the district court.

Rather, the issue of waiver only arose because the State

of lowa responded to the Court’s inquiry by explicitly

urging the Court not to apply Younger, but to reverse

the lower court’s decision on the merits. /d., n. 3.

Accordingly, this Court honored the State’s request and

did not apply Younger in that case. /d.

18

Similarly, in Ohio Bureau of Employment Services

v. Hodory, 431 U.S. 471, 477-480 (1977), the issue was

whether this Court should apply Younger and/or

Pullman abstention to a dispute relating to the

constitutionality of an Ohio statute disqualifying certain

workers for unemployment compensation benefits if

their unemployment was due to a strike or labor dispute.

In the lower court proceedings, a three-judge panel

heard arguments on the merits and overturned the state

law as unconstitutional. The State of Ohio then appealed

to the U.S. Supreme Court, but did not argue Younger

abstention, but a reversal on the merits. Upon review,

this Court again raised the issue of Younger abstention

sua sponte, specifically asking the State of Ohio whether

it wanted the Court to vacate the lower court decision

based upon Younger abstention. /d. at 479. Once again,

the State “resisted this suggestion,” expressly urging

this Court to retain jurisdiction in order to overrule the

lower court’s decision on the merits. /d.

The question in Hodory, therefore, was not whether

Ohio had waived Younger abstention by failing to raise

the issue or by defending the constitutionality of a state

law. Rather, an explicit waiver was permitted by this

Court because this Court determined that it was more

consistent with the principles of comity and federalism

underlying Younger to honor the State of Ohio’s request

to not apply Younger abstention and not “force the case

back into the State’s own system” against the State’s

will:

Younger and these cases express equitable

principles of comity and federalism. They are

designed to allow the State an opportunity to

19

“set its own house in order” when the federal

issue is already before a state tribunal.

It may 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 case, 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 the

circumstances Younger principles of equity

and comity do not reqrvire this Court to refuse

Ohio the immediate adjudication it seeks.

Id. at 479-480 (emphasis added).

This Court applied this same reasoning in Brown v.

Hotel and Restaurant Employees and Bartenders Int'l

Union Local 54, 468 U.S. 491 (1984). In Brown, the issue

was whether to enjoin a state statute that required the

registration of unions representing casino employees.

The State of New Jersey initially moved to dismiss based

upon Pullman, Younger, and Burford abstention, but

the district court rejected the abstention arguments

and elected to deny an injunction on the merits. Jd. at

499 & n. 6. On appeal, the Third Circuit reversed,

concluding that Appellants were likely to prevail on the

20

merits and were entitled to a preliminary injunction.

Id. at 499 & n. 8. New Jersey then petitioned for a writ

of certiorari and clearly and explicitly stated in its brief

that it did not intend to press Younger abstention, but

was voluntarily electing to “submit to the jurisdiction of

this Court in order to obtain a more expeditious and

final resolution of the merits of the constitutional issue.”

Id. at 500, n. 9. This Court therefore honored New

Jersey’s request, noting that the State had expressly

“agreed to our adjudication of the controversy.” /d.

In all three of the above-referenced cases, therefore,

the issue of waiver only arose because the State clearly

and explicitly advised the Supreme Court that it did not

want the Court to apply Younger abstention, but

preferred to submit the pending constitutional question

to the Supreme Court for immediate resolution.

The choice was clearly presented to the state defendant,

and the waiver was voluntary, intentional, unequivocal

and explicit. It did not arise through mistake,

inadvertence, or omission or merely because the State

had defended the constitutionality of a state law. Rather,

it arose only because this Court wanted to honor the

state’s request to decide a constitutional issue in the first

instance, rather than to force the matter back into the

state judicial system against the state’s will.

Indeed, in agreeing to honor the state’s request to

not apply Younger abstention in Brown, Hodory, and

Sosna, this Court did not remotely suggest that a state

defendant can be penalized for failing to raise Younger

abstention in a motion to dismiss or by defending against

a preliminary injunction on the merits. To the contrary,

this Court has held that Younger can be raised

21

sua sponte on appeal, Bellotti v. Baird, 428 U.S. 132,

143, n. 10 (1976), and in fact has twice raised Younger

abstention well after the merits of a constitutional

dispute had been decided. Sosna, 419 U.S. at 396-397,

Hodory, 431 U.S. at 479. Thus, in Ohio Civil Rights

Comm. v. Dayton Christian Schools, 477 U.S. 619 (1986),

the Court flatly rejected the argument that the State

of Ohio had somehow “waived” Younger abstention in

that case merely because it had stipulated to federal

court jurisdiction and defended the underlying action

“on the merits.” Jd. at 625. Thus, even though both the

district court and the court of appeals in Ohio Civil

Rights Comm. had decided the merits of the

constitutional claims, this Court nevertheless held that

Younger abstention fully applied, holding that a waiver

can occur only if the State “voluntarily submits” to

federal court jurisdiction and foregoes a tenable claim

to Younger abstention by “expressly” requesting that

the Court or the district court not abstain, but “proceed

to an adjudication of the constitutional merits.”

Id. at 627. |

For these reasons, therefore, this Court should

reject the Petition’s suggestion that the Sixth Circuit’s

interpretation of existing Supreme Court precedent

presents an “important question of federal law that has

not been, but should be, settled by this Court.”

(See S. Ct. R. 10(c)). As discussed above, this Court has

already addressed the waiver issue in at least four cases

and has already established a rule of law that was

properly applied in this case. Accordingly, under

S. Ct. R. 10, the Court should deny the Petition.

22

In his Petition, O’Neill vainly tries to create the

impression that the waiver issue remains “unsettled”

by citing a number of other appellate decisions that

have allegedly “grappled” with whether a state

defendant had waived Younger abstention. (Pet. 36-37).

A review of the Petitioner’s cases, however, confirms

that they all were merely following the established rule

of law, either by concluding that Yownger abstention can

be raised swa sponte, or by finding that Younger was

not waived by a state defendant through omission. (See

Pet. 37) (citing Morrow v. Winslow, 94 F.3d 1386, 1390,

1398 (10 Cir. 1996) (applying Younger sua sponte); H.C.

ex rel. Gordon v. Koppell, 203 F.3d 610, 613 (9 Cir. 2003)

(applying Younger sua sponte); Columbia Basin Apt.

Ass'n v. City of Pasco, 268 F.3d 791, 800 (9* Cir. 2001)

(Younger can be waived only by “express statement” on

the record that the State does not want Younger applied

to a given case); Boardman v. Estelle, 957 F.2d 1523,

1535 (9 Cir. 1992) (“{a] state may waive Younger only

by express statement, not through failure to raise the

issue”).? Thus, if anything, the Petitioner’s cases provide

2 We note that the Petition cites one Ninth Circuit case, as

allegedly standing for the proposition that Younger abstention

can be waived if it is raised “for the first time on appeal.” See

Kleenwell Biohazard Waste and General Ecology Consultants,

Inc. v. Nelson, 48 F.3d 391, 393-394 (9" Cir. 1995). This case is

distinguishable, however, because Coughlan in fact raised

Younger abstention in the district court and thus did not raise

Younger “for the first time on appeal.” In any event, the fact

remains that the Ninth Circuit decision in Kleenwell is an

anomaly that should be disregarded. As another federal court

has observed, subsequent Ninth Circuit precedent expressly

affirms the long-standing rule “that Younger abstention can be

raised sua sponte by the [district] court and on appeal.”

(Cont'd)

23

only further proof that the Sixth Circuit properly applied

the applicable rule of law in this case. Accordingly, the

Court should deny the Petition.

Ill. THE PETITION DOES NOT PRESENT

COMPELLING REASONS FOR WHY THIS

COURT SHOULD DECIDE WHETHER THE

“EXCEPTIONAL CIRCUMSTANCES” EXIST

TO WARRANT AN EXCEPTION TO YOUNGER

ABSTENTION.

The Petition’s third argument requests this Court

to consider in the first instance whether “extraordinary

circumstances” exist to permit the district court to

disregard Younger abstention and enjoin Ohio’s

disciplinary proceedings. This Court should not consider

this issue because O’Neill never made any argument in

the district court that the narrow exception for

“extraordinary circumstances” should be applied.

See O’Neill v. Coughlan, 436 F. Supp.2d 905, 907-08 (N.D.

Ohio 2006) (App. 40-41). Consequently, the applicability

of this limited exception was not fully considered by the

district court or by the court of appeals and is

not properly before this Court. (Pet. _ iz, ™. %)

(Pet. App. 40-41).

(Cont’d)

Communicatio..° Telesystems Int'l v. California Public Utilities

Comm., 14 F. Supp.2d 1165, 1169 (N.D. Cal. 1998) (emphasis

added); see San Remo Hotel v. City and County of San Francisco,

145 F:3d 1095, 1103-1104 & n. 5 (9% Cir. 1998) (affirming a federal

court’s power to raise Younger abstention sua sponte) (citing

Barichello v. McDonald, 98 F.3d 948, 955 (7 Cir. 1996)).

24

Indeed, contrary to the Petitioners’ suggestions, the

applicability of any exceptions to Younger for state

disciplinary proceedings is not an “unsettled” question

that has never been decided by the federal courts. This

Court in fact already has rejected the argument that an

alleged “chilling effect” upon First Amendment rights

can be a sufficient basis for enjoining state action.

Younger, 401 U.S. at 51 (“[A] ‘chilling effect, even in the

area of First Amendment rights, has never been

considered a sufficient basis, in and of itself, for

prohibiting state action”). Thus, since Younger, the

federal courts have consistently rejected the argument

that Younger abstention should not be applied to state

disciplinary proceedings if First Amendment issues are

raised. Spargo, 351 F.3d at 81 (holding that First

Amendment interests “do not justify an exception to

ordinary Younger principles” because “an alleged

‘chilling effect’ is not a ‘sufficient basis, in and of itself,

for prohibiting state action’”); Crenshaw, 170 F.3d at 729

(“a ‘chilling effect’ on the exercise of constitutional rights

is an insufficient basis to avoid the holding in Younger”);

Harper, 1997 WL 225899, **3 (an alleged “chilling effect”

did not justify federal intervention into Ohio’s judicial

disciplinary proceedings).

In this regard, this Court has also rejected the

Petitioner’s argument that “state agencies and supreme

courts are inadequate to the task of adjudicating First

Amendment questions.” (Pet. 46). In Middlesex County

Ethics Comm., similar arguments were raised about the

adequacy of New Jersey’s disciplinary process, but they

were flatly rejected by this Court because there was no

showing that New Jersey would refuse to consider a

constitutional claim or would fail to provide an adequate

25

opportunity for judicial review. Middlesex, 475 U.S. at

435-437, 102 S. Ct. 2515; Spargo, 351 F'3d at 78-80. Thus,

in Ohio Civil Rights Comm ’n, this Court reiterated that

state administrative proceedings are adequate to

trigger Younger abstention if “constitutional claims may

be raised in state-court judicial review of the

administrative proceeding.” Jd. 477 U.S. at 629; Spargo,

351 F.3d at 78-79 (“ability to raise constitutional claims

in subsequent ‘state-court judicial review of [an]

administrative proceeding’ is sufficient‘to provide

plaintiffs with a meaningful opportunity to seek effective

relief through state proceedings”); see also

Amanatullah v. Colorado Bd. of Medical Examiners,

187 F.3d 1160 (10% Cir. 1999) (judicial review of

administrative proceedings is sufficient to trigger

Younger).

Petitioner’s arguments about the adequacy of

Ohio’s disciplinary process, therefore, are not new and

have already been rejected by the federal courts. Since

Middlesex Cty., this Court has repeatedly held that the

federal courts must asswme that state judicial process

provides an “adequate remedy” for constitutional claims

unless the plaintiff can clearly and unambiguously prove

that the state will refuse to consider constitutional issues

and completely bar the interposition of constitutional

claims.’ This is clearly not the case. Thus, based upon

* Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15, 107 S.Ct. 1519

(1987) (“federal court should assume that state procedures will

afford an adequate remedy in the absence of unambiguous

authority to the contrary”); Ohio Civil Rights Comm’n, 477 U.S.

at 629, 106 S.Ct. 2718 (holding that abstention was mandatory

where plaintiff could cite no state authority preventing judicial

(Cont’d)

26

this Supreme Court precedent, it is now well-settled

that Ohio’s disciplinary process provides an adequate

opportunity to raise constitutional issues, and that it

therefore is mandatory to apply Younger abstention.

Squire, 469 F.3d at 557 (plaintiff failed to prove that

Ohio’s disciplinary proceedings barred the consideration

of constitutional issues); Harper, 1997 WL 225899, **3

(holding that judicial candidate had an adequate

opportunity to raise First Amendment claims in Ohio’s

disciplinary proceedings and upon review by the Ohio

Supreme Court); Berger, 983 F.2d at 723 (holding that

there is adequate opportunity to raise First Amendment

claims in Ohio’s disciplinary proceedings).

Indeed, contrary to the Petition’s suggestions, there

are some very good reasons for why the federal courts

have consistently applied Younger to disciplinary

proceedings. Younger not only protects the integrity of

the state disciplinary process, but also serves the

interest of avoiding “unwarranted determination of

constitutional questions” by providing the state with the

opportunity to eliminate or remedy any alleged

constitutional problems. As the Second Circuit has

explained:

“[AJn ‘important reason for [Younger]

abstention is to avoid unwarranted

(Cont’d)

review of his constitutional claims); Middlesex Cty. Ethics

Comm., 457 U.S. at 432, 102 S.Ct. 2515 (“a federat court must

abstain “unless state law clearly bars the interposition of the

constitutional claims”); Tesmer v. Granholm, 333 F.3d 683, 688

(6” Cir. 2003) (following Supreme Court precedent to require

the plaintiff to prove that “state procedural law barred

presentation of [his constitutional] claims”), rev’d on other

grounds, Kowalski v. Tesmer, 543 U.S. 125 (2004).

27

determination of federal constitutional

questions’ where it is possible that state

courts may resolve the case on state law

grounds ‘without reaching the federal

constitutional questions.’ * * * ‘{[ Younger]

abstention in situations like this ‘offers the

opportunity for narrowing constructions that

might obviate the constitutional problem and

intelligently mediate federal constitutional

- concerns and state interests.’ * * * Thus, the

argument that Spargo’s disciplinary

proceeding could be resolved on alternative

grounds, without deciding the constitutional

issues raised in the federal court, actually

weighs in favor of, and not against, the

exercise of abstention.

Spargo, 351 F.3d at 79-80 (citing Pennzoil, 481 U.S. at

11-12); see also Yamaha Motor Corp. U.S.A. v. Stroud,

179 F.3d 598, 603 (8 Cir. 1999).

Here, by allowing the disciplinary proceedings to

continue in the ordinary course, the Sixth Circuit has

provided Ohio’s disciplinary process with the

opportunity to respond to the alleged grievance in the

first instance and to eliminate the need for federal

intervention. Upon investigation and review of the

grievance, the Disciplinary Counsel and/or the Board of

Commissioners on Grievance and Discipline may have

elected to dismiss the grievance and not to prosecute

any of the alleged charges at all. Moreover, if a violation

had been found, the Supreme Court of Ohio may have

elected to construe the judicial canons more narrowly

to avoid any constitutional confrontation. See Harper,

28

1997 WL 225899, **3 (discussing how the Ohio Supreme

Court has construed ‘he judicial canons. narrowly to

allow for truthful free speech). Thus, by allowing the

disciplinary proceedings to continue in the ordinary

course, the Sixth Circuit not only upheld the integrity

of the state judicial process, but may have avoided the

unwarranted adjudication of a constitutional issue and

eliminated the need for federal court intervention

altogether. Spargo, 351 F.3d at 79-80 (explaining that

abstention ~vas warranted, in part, because “Spargo’s

disciplinary charges may be dismissed on other grounds,

such as lack of substantial evidence, or by the fact that

the [New York] Court of Appeals may choose to narrowly

construe the judicial conduct rules to avoid as potential

constitutional confrontation”). Accordingly, for this

additional reason, the Court should deny the Petition.

29

CONCLUSION

Petitioner has not established any compelling reason

for this Court to grant the Petition. The Sixth Circuit’s

decision does not create a circuit conflict nor raise an

important question of federal law that should be decided

by this Court. Accordingly, Respondent respectfully

requests that the Court deny the Petition.

Respectfuily submitted,

Nancy H. Rocers

Attorney General of Ohio

STEPHEN W. FuNK

Counsel of Record

ROETZEL & ANDRESS, LPA

222 S. Main Street, Suite 400

Akron, OH 44308

(330) 376-2700

Outside Counsel for Respondent

Jonathan Coughlan,

Ohio Disciplinary Counsel