Robert Butler v. The Alabama Judicial Inquiry , 245 F.3d 1257 ( 2001 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_____________________________ AUGUST 15, 2001
THOMAS K. KAHN
No. 00-14137 CLERK
____________________________
D. C. Docket No. 00-00976 CV-D-N
ROBERT BUTLER,
W. THOMAS GAITHER, et al.
Plaintiffs-Appellees,
versus
THE ALABAMA JUDICIAL INQUIRY COMMISSION,
RANDALL L. COLE, in his official capacity,
Defendants-Appellants.
__________________________________________
Appeal from the United States District Court
for the Middle District of Alabama
__________________________________________
(August 15, 2001)
Before EDMONDSON, HILL and GIBSON, Circuit Judges.
EDMONDSON, Circuit Judge:
This case returns to our court after we certified some questions to the
Alabama Supreme Court. See Butler v. Alabama Judicial Inquiry Comm., 245
F.3d 1257 (11th Cir. 2001) (Butler I). Based on the Alabama Supreme Court’s
response to the certified questions, we conclude that some of the claims are moot
and that the district court should have abstained from deciding the remaining
claims.
I. Background
Justice Harold F. See, Jr., a member of the Supreme Court of Alabama,
challenged in federal court the constitutionality of two canons of the Alabama
Canons of Judicial Ethics under which he had been charged. On appeal from the
grant of a preliminary injunction against the Alabama Judicial Inquiry Committee
(“JIC”), we considered the JIC’s request that the federal courts abstain -- under
Younger v. Harris, 91 S. Ct. 746 (1971) -- from ruling on the federal constitutional
issues.
We were unable to determine with certainty whether Alabama procedural
law provided an adequate state forum in which Justice See could raise his
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constitutional objections. So, we certified questions to the Supreme Court of
Alabama, asking for their assistance to help us understand Alabama procedural
law. We noted that the state supreme court also could “remedy federal
constitutional defects, if any, that it may find in the judicial canons challenged by
Justice See.” Butler I, 245 F.3d at 1266 n.9.
The Supreme Court of Alabama consented to the certification and responded
quickly, addressing the federal constitutional issues raised by Justice See. See
Butler v. Alabama Judicial Inquiry Comm’n, ___ So. 2d ___ (Ala. 2001) (Butler
II). The state court concluded that Canon 7B(2) was facially unconstitutional
because it was “not narrowly tailored to serve the state’s compelling interest in
protecting the integrity of the judiciary.” Id. at ___. The state court also narrowed
Canon 7B(2) to apply only to dissemination of “demonstrably false information
concerning a judicial candidate or an opponent ‘with actual malice.’” Id. at ___
(quoting New York Times Co. v. Sullivan, 84 S. Ct. 710, 726 (1964)). In addition,
the state court concluded that Canon 2A did not apply to “a candidate’s conduct
with reference to speech by the candidate or the unrepudiated statement of an
aide.” Id. at ___.
Because the Alabama Supreme Court addressed some of Justice See’s
constitutional objections to the challenged canons, the state court deemed two of
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the certified questions moot and declined to answer the third certified question. As
part of a dissenting opinion, Justice Houston responded directly to our certified
questions.
In the light of the Alabama Supreme Court’s response to our certified
questions, we ordered the parties to submit supplemental briefing on the issue of
mootness. Our order also required the parties “to confer and to consider the
practical implications of the Alabama Supreme Court’s decision, including the
option of a consensual dismissal.” The parties conferred but did not agree to
consensual dismissal of the federal case.
II. Mootness
In considering the constitutionality of the challenged ethics canons, the
Alabama Supreme Court effectively amended portions of the pertinent ethics
canons. “Where a law is amended so as to remove its challenged features, the
claim for injunctive relief becomes moot as to those features.” Naturist Soc’y, Inc.
v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992). In Fillyaw, we concluded that the
case was not entirely moot -- even though the challenged regulations were
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amended in part -- because other “challenged aspects of [the regulatory] scheme
remain[ed] essentially as they were before the amendments.” Id.We likewise conclude that, in this case, the Alabama Supreme Court’s
changes to the pertinent judicial canons mooted some (but not all) of Justice See’s
federal challenges.1
A.
In Count One of the federal complaint, Justice See asserted a facial
challenge to Canon 7B(2). The Alabama Supreme Court, however, “narrow[ed]
Canon 7B(2) to provide that a candidate for judicial office shall not disseminate
demonstrably false information concerning a judicial candidate or an opponent
with actual malice
-- that is, with knowledge that it [is] false or with reckless disregard of whether it
[is] false or not.”2 Butler II, ___ So. 2d at ___ (quoting New York Times Co. v.
1
We are reviewing Justice See’s federal complaint for mootness. Some of the charges pending
against Justice See at the Alabama Court of the Judiciary may or may not be moot. That
determination is one for the Court of the Judiciary to make.
2
Before the Alabama Supreme Court’s narrowing of Canon 7B(2), the Canon said that candidates
for judicial office shall not:
Post, publish, broadcast, transmit, circulate, or distribute false information concerning a
judicial candidate or an opponent, either knowing the information to be false or with reckless
5
Sullivan, 376 U.S. 254, 280 (1964). This change in Canon 7B(2) effectively
eliminated from the Canon the second clause -- which prohibited true material --
but left intact the first clause of Canon 7B(2) to mirror the standard articulated in
Sullivan. And our review of the record indicates to us that counsel for Justice See
conceded that the first clause of Canon 7B(2) was facially constitutional.3 So,
Count One of Justice See’s complaint (challenging the second clause of Canon
7B(2) as facially unconstitutional) is moot.
B.
In counts two and four, Justice See asserted as-applied challenges to Canon
7B(2). In count two, Justice See alleged that the Canon precluded a candidate like
him “from making factual misstatements during the course of a political campaign
when the judicial candidate is unaware of an inaccuracy.” In count four, Justice
See alleged that the Canon precluded him “from making truthful statements or
disregard of whether the information is false; or post, publish, broadcast, transmit, circulate,
or distribute true information about a judicial candidate or an opponent that would be
deceiving or misleading to a reasonable person.
3
At the hearing on Justice See’s motion for a preliminary injunction and the JIC’s motion to
dismiss, the district judge asked Justice See’s counsel if he “argue[d] with [the first clause] of the
canon.” Counsel responded “No.” R. 2-30.
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from making statements that he believes to be truthful during the course of a
political campaign.”
Despite the Alabama Supreme Court’s decision interpreting and modifying
the pertinent canons, the charges against Justice See based on Canon 7B(2) remain
pending in the Alabama Court of the Judiciary.4 And Justice See maintains his
federal constitutional objections to the JIC charges; he says that applying Canon
7B(2), as narrowed by the Alabama Supreme Court, to truthful statements made by
Justice See’s campaign violates the First Amendment. Therefore, a “live” case or
controversy exists on Justice See’s as-applied challenges to Canon 7B(2).
C.
In count three, Justice See asserted an as-applied challenge to Canon 2A.
The Alabama Supreme Court interpreted Canon 2A as inapplicable to the conduct
alleged by the JIC in its complaint against Justice See. So, Justice See’s challenge
to Canon 2A is moot.
4
We recognize that the JIC has been enjoined, by a federal district judge, from proceeding with
the state charges against Justice See. Thus, the JIC has not had the opportunity to amend its
complaint, if it chose to do so, in the light of the Alabama Supreme Court’s ruling.
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D.
In count five, Justice See challenged section 6.19 of Alabama Constitutional
Amendment No. 328 as applied to him. Section 6.19 disqualifies a judge from
acting as judge when a complaint is filed against him by the JIC. The Alabama
Supreme Court declined to answer the certified question about section 6.19 and
provided us with no interpretation or insight about this state constitutional
provision. Because the JIC’s complaint against Justice See remains pending with
the Alabama Court of the Judiciary, Justice See remains subject to disqualification.
Justice See claims that the threat of disqualification for engaging in political speech
violates the First Amendment. Thus, count five is not moot.
III. Younger abstention
While the Alabama Supreme Court’s opinion did help us to understand
better the pertinent judicial canons, the state opinion does not address the
procedural questions: questions we had asked about whether an adequate
opportunity to raise constitutional challenges exists in the ongoing state
proceeding. In Butler I, we contemplated that the Alabama Supreme Court might
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not answer our questions and explained that we would rule on the abstention issue
without the benefit of the state court’s insight, if necessary. 245 F.3d at 1266. We
place no significance on the fact that the Alabama Supreme Court chose not to
respond directly to our questions. That high court did its duty as it saw it; now, we
must do our duty.
In Butler I, we said that “Justice See bears the burden to establish that the
state procedures are inadequate.” 245 F.3d at 1262 (emphasis in original). We
said “[m]inimal respect for the state processes, of course, precludes any
presumption that the state courts will not safeguard federal constitutional rights.”
Id. (emphasis in original) (quoting Middlesex County Ethics Comm. v. Garden
State Bar Assoc., 102 S. Ct. 2515, 2521 (1982)). So, we start with the belief that
state courts are commonly able to address federal constitutional challenges
adequately. The federal plaintiff, having failed to raise his federal claims in the
ongoing state proceeding, must overcome this premise by demonstrating
inadequate state remedies. Justice See has failed to satisfy his burden in this case.
In our earlier opinion, we set out some ways in which we thought Alabama
procedural law might allow Justice See to raise his federal constitutional objections
in the state court proceeding. Butler I, 245 F.3d at 1263-64. Justice Houston, the
only Alabama Supreme Court justice to answer directly our certified questions, has
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confirmed that, at least in his view, federal constitutional objections can be raised
and decided in a Court of the Judiciary proceeding. See Butler II, ___ F.3d at ___
(Houston, J. dissenting). We recognize Judge Houston’s views were delivered in a
dissent, in which no other justice joined; therefore, his views create no binding
interpretation of Alabama law and might not represent a majority of the Alabama
Supreme Court’s understanding of state procedural law. Nonetheless, his
observations about Alabama procedural law were not contested by other Justices.
And as a member of the state’s highest court, which is charged with promulgating
the rules of procedure, see Ala. Code § 12-2-7(4), Justice Houston’s reasoned
opinion corroborates our view that an adequate state forum likely exists. Neither
the parties nor a majority of the Alabama Supreme Court has given us additional
reasons to doubt the availability of state methods of redress.5
Without authoritative guidance from the Alabama Supreme Court, we do not
know for certain that these procedures -- suggested by us in Butler I and by Justice
5
Justice See, citing Ex parte Smith, 683 So.2d 431 (Ala. 1996), argues that because the Court of
the Judiciary includes lay members, who are deemed incompetent to adjudicate First Amendment
questions under Alabama law, the Court of Judiciary could not consider constitutional challenges.
We think Smith is not persuasive, because the administrative review panel in Smith is too different
from the Court of the Judiciary.
10
Houston in his dissent-- will be available to Justice See. But, in the interest of
comity and federalism, we err -- if we err at all -- on the side of abstaining.6
Abstention is appropriate here, in part, because the Alabama Supreme
Court’s speedy and competent response dispels some of the district court’s
concerns about not abstaining.7 See Middlesex, 102 S. Ct. at 2523 (noting that
federal court may consider subsequent developments in state court when making
Younger determination). The state court’s quick response in addressing the
difficult federal constitutional questions, instead of answering our procedural
questions so that we could decide whether to consider the constitutional issues,
also indicates, to us, that the state court has an interest in and is capable of quickly
resolving constitutional challenges to state judicial canons.
6
Younger abstention often involves a level of uncertainty. Because the federal plaintiff decided
to proceed in federal court instead of raising the federal issues in the ongoing state proceeding,
sometimes we do not know, for certain, how the state court would have responded to the federal
issues if properly raised in the state court by that particular federal plaintiff. See Pennzoil Co. v.
Texaco, Inc., 107 S.Ct. 1519, 1528 (1987) (internal citation omitted) (“We cannot assume that state
judges will interpret ambiguities in state procedural law to bar presentation of federal claims.
Accordingly, when a litigant has not attempted to present his federal claims in related state-court
proceedings, a federal court should assume that state procedures will afford an adequate remedy, in
the absence of unambiguous authority to the contrary.”).
7
We understand that, in this particular case, the Alabama Supreme Court considered Justice See’s
federal constitutional issues only after Justice See came to federal court and after we certified
questions to the state court. But this procedural route does not preclude the existence of other
procedural routes that may exist in state court without federal court interference.
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Based on these facts, we conclude that Justice See has failed to establish that
state procedures could not adequately address his federal constitutional
challenges.8 As a result, Younger abstention is appropriate here, and the district
court erred in not granting the JIC’s motion to dismiss.
Therefore, we VACATE the district court’s preliminary injunction and
REMAND with instructions to dismiss the federal action.
8
Justice See also argues that even if adequate state proceedings exist, abstention is inappropriate
upon a showing of irreparable injury. We rejected that argument in Butler I and will say nothing
more about it here. See Butler I, 245 F.3d at 1264-65.
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