Parker v. Judicial Inquiry Commission of the State of Alabama et al

Filing 39

MEMORANDUM OPINION AND ORDER: it is ORDERED that Dfts' 12 and 13 motions to dismiss are GRANTED. Signed by Chief Judge William Keith Watkins on 9/29/2016. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
HON. TOM PARKER, Associate
Justice, Supreme Court of Alabama,

)
)
)
Plaintiff,
)
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v.
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JUDICIAL INQUIRY COMMISSION )
OF THE STATE OF ALABAMA, et al., )
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Defendants.
)

CASE NO. 2:16-CV-442-WKW
[WO]

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the court on Defendants’ motions to dismiss under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Docs. # 12, 13.)
Plaintiff Tom Parker, an Associate Justice of the Alabama Supreme Court
(“Plaintiff” or “Justice Parker”), filed a Verified Complaint for Declaratory
Judgment and Injunctive Relief on June 15, 2016. (Doc. # 1.) Brought under 42
U.S.C. § 1983, this action challenges the constitutionality of Alabama Canons of
Judicial Ethics (“Judicial Canons”) 1, 2A, and 3A(6), as well as Section 159 of the
Alabama Constitution. Justice Parker argues that the Judicial Canons violate his
First Amendment free speech rights and that Section 159 violates his Fourteenth
Amendment due process rights. Consequently, he asks the court to declare each

unconstitutional, to enjoin their enforcement, and to award him costs and attorney’s
fees.
Defendants, the Judicial Inquiry Commission of the State of Alabama and its
members named in their official capacities (collectively, the “JIC”), have moved for
dismissal on the ground that Younger v. Harris, 401 U.S. 37 (1971), requires the
court to abstain from hearing the case. (Doc. # 12.) The JIC raises this argument
under Rules 12(b)(1) and 12(b)(6), but submits that Rule 12(b)(1) is the proper
vehicle by which to raise Younger. The Attorney General of Alabama, also a
defendant, has incorporated this argument in a separate motion to dismiss. (Doc. #
13.) For reasons to be discussed, both motions to dismiss are due to be granted, and
this action is due to be dismissed under Rule 12(b)(1) based on Younger abstention.1
II. JURISDICTION AND VENUE
The complaint predicates subject-matter jurisdiction on 28 U.S.C. § 1331.
The parties do not contest personal jurisdiction or venue.

1

Whether Younger abstention should be raised under Rule 12(b)(1) or 12(b)(6) is the
subject of some dispute. Some courts have emphasized that Younger “reflects a court’s prudential
decision not to exercise jurisdiction which it in fact possesses,” thus making 12(b)(1) seem an
inappropriate vehicle. Weekly v. Morrow, 204 F.3d 613, 615 (5th Cir. 2000) (quoting Benavidez
v. Eu, 34 F.3d 825, 829 (9th Cir. 1994)). See also New Orleans Pub. Serv., Inc. v. Council of New
Orleans, 491 U.S. 350, 358–59 (1989). This insight notwithstanding, other courts often allow
Younger abstention arguments to be “raised through a Rule 12(b)(1) motion.” 5B Charles Alan
Wright & Arthur Miller, Federal Practice & Procedure, § 1350 at 96–100. This district is no
exception. See, e.g., Moore v. JIC, No. 2:16-cv-388-WHA, 2016 WL 4157328, at *1 (M.D. Ala.
Aug. 4, 2016) (“The court has considered the Defendants’ Younger abstention argument to be
appropriately raised under Rule 12(b)(1).”). The court follows Moore but notes that the final result
of this litigation in no way depends on whether this case is dismissed under 12(b)(1) or 12(b)(6).

2

III. STANDARD OF REVIEW
A 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction may take
the form of a facial or factual attack.

McElmurray v. Consol. Gov’t of Augusta-

Richmond City, 501 F.3d 1244, 1251 (11th Cir. 2007). A facial attack requires the
court to determine whether the pleadings, on their face, allege a sufficient basis for
subject-matter jurisdiction. Id. In analyzing a facial attack, the court assumes all
well-pleaded allegations in the plaintiff’s complaint are true. Id. A factual attack,
by contrast, challenges “the existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the pleadings, such as testimony
and affidavits, are considered.” Id. (quoting Lawrence v. Dunbar, 919 F.2d 1525,
1529 (11th Cir. 1990)). The motions at issue here attack the court’s jurisdiction both
facially and factually. (Docs. # 12, 13.)
IV. BACKGROUND
On March 3, 2015, prior to the United States Supreme Court’s decision in
Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the Alabama Supreme Court held that
the Alabama Sanctity of Marriage Amendment and the Alabama Marriage
Protection Act, which defined marriage as the union of one man and one woman,
did not run afoul of the federal Constitution. Ex parte State v. King, No. 1140460,

3

––– So. 3d ––––, 2015 WL 892752 (Ala. 2015). Later that year, on June 26, 2015,
the U.S. Supreme Court decided Obergefell.2
On October 6, 2015, Justice Parker, who is a candidate for reelection to the
Alabama Supreme Court, appeared on a radio talk show during which he was asked,
among other things, about his personal views on federalism, the U.S. Supreme Court,
and the Obergefell decision. Specifically, Justice Parker expressed his opinion that
Wisconsin’s response over 150 years ago to the U.S. Supreme Court’s pro-slavery
decisions, e.g., Dred Scott v. Sandford, 60 U.S. 393 (1857), provides precedent for
states to ignore federal rulings they believe are in conflict with the U.S.
Constitution.3 His comments are contextualized and laid out in detail below.

2

In Obergefell, 135 S. Ct. at 2599, the U.S. Supreme Court held that marriage laws in
Michigan, Kentucky, Ohio, and Tennessee, which were similar to the Alabama law, were
unconstitutional.
3

The Dred Scott case infamously held that a slave was an “article of property,” not a rightsbearing citizen, and thus could not sue for his freedom. 60 U.S. at 408. Relatedly, the Wisconsin
Supreme Court famously refused to enforce a U.S. Supreme Court decision holding that the
Fugitive Slave Act (which required northern states to return runaway slaves to their masters) was
constitutional. The explanation provided on the Wisconsin Court System website is most helpful:
What has become known as the Booth case is actually a series of decisions from
the Wisconsin Supreme Court beginning in 1854 and one from the U.S. Supreme
Court, Ableman v. Booth, 62 U.S. 514 (1859), leading to a final published decision
by the Wisconsin Supreme Court in Ableman v. Booth, 11 Wis. 501 (1859). These
decisions reflect Wisconsin’s attempted nullification of the federal fugitive slave
law, the expansion of the state’s rights movement and Wisconsin’s defiance of
federal judicial authority. The Wisconsin Supreme Court in Booth unanimously
declared the Fugitive Slave Act (which required northern states to return runaway
slaves to their masters) unconstitutional. The U.S. Supreme Court overturned that
decision but the Wisconsin Supreme Court refused to file the U.S. Court’s mandate
upholding the fugitive slave law. That mandate has never been filed.

4

When asked about Wisconsin, Justice Parker said:
The Wisconsin situation in fact involved a double defiance of the
Supreme Court. First they defied the Dred Scott decision, and then their
decision in defiance was taken up to the U.S. Supreme Court, which
reversed it, sent its mandate back to the Wisconsin Supreme Court,
which refused to accept that mandate, so the reversal was never acted
on.
I think it was a model of what we need to see in this [country]. Now,
in the federalist papers, they said the states should be a restriction on
the powers of the federal government to prevent it from overreaching.
. . . [I]t’s time for the state Supreme Courts to rise up and do their
responsibility for this entire system we have nationally, otherwise it’s
just going to continue to get worse and worse.
(Doc. # 1-1, at 11). Having raised Wisconsin as an example, the radio host began to
get more specific. He asked, “What is the lay of the land right now in Alabama with
regard to the subject of same sex marriage?” (Doc. # 1-1, at 12.) Justice Parker, in
response, laid out the history of King and Obergefell, and noted that, because
“nobody appealed [King] to the U.S. Supreme Court,” the Alabama Supreme Court
must now determine whether King remains enforceable in Alabama. (Doc. # 1-1, at
12.) He explained that, in his view, the Obergefell mandate extends only “to the one
court of appeals that was the source of the original cases taken to the U.S. Supreme
Court” because Article III of the U.S. Constitution “says that the [Court’s]

In Re: Booth, Famous cases of the Supreme Court, Wisconsin Court System,
https://www.wicourts.gov/courts/supreme/docs/famouscases01.pdf. The same document
can also be found in the record. (Doc. 26-1.)

5

jurisdiction is over cases or controvers[ies], and the practice from the very beginning
was that a decision by the U.S. Supreme Court only affected the parties before that
court.” (Doc. # 1-1, at 13.)
Justice Parker made it very clear he does not agree with the reasoning of
Obergefell. Far from it, he believes the decision runs “contrary to the constitution”
and is out of step with popular opinion. (Doc. # 1-1, at 15.) Unpopular judicial
decrees, he thinks, are due largely to the fact that federal judges are appointed for
life rather than being elected by the people they represent. (Doc. #1-1, at 14–15.)
Lifetime appointments make judges unaccountable to the people, while elections
help to “keep judges in line.” (Doc. # 1-1, at 15.)
The subject of judicial accountability prompted a broader dialogue about
federalism, especially as it relates to Obergefell. Justice Parker explained to the
audience that the Tenth Amendment “says that the state retains rights not delegated
to the federal government” and “[t]here is nothing in the constitution that delegates
any rights over marriage to the federal government.” (Doc. # 1-1, at 16.) He argued
that the Obergefell decision was an example of the federal government “intruding
into the state prerogative” in violation of the Tenth Amendment, and he voiced his
belief that “states should be a check on the federal government.” (Doc. # 1-1, at 16,
17.) Asked what would happen if a state Supreme Court refused to “accept the
jurisdiction of the [U.S.] Supreme Court,” Justice Parker said:

6

I doubt that it would be a blanket defiance of all jurisdiction of the U.S.
Supreme Court, but in regard to the Obergefell decision, where it’s clear
that they jumped outside of all the precedents in order to impose their
will on this country, that yes, resisting that decision could maybe state
a revival of what we need in this country to return to our original
founding principles.
(Doc. # 1-1, at 9.).
In summary, Justice Parker—a candidate for political office, nearing election
season, and speaking in a public forum—expressed his personal views on a number
of highly contentious legal and political issues that his constituents, and the country
at large, are currently facing.
The Southern Poverty Law Center (“SPLC”) took offense. On October 12,
2015, the SPLC filed a complaint with the JIC—the body charged with investigating
violations of Judicial Canons and the primary defendant in this lawsuit. The
complaint alleged that Justice Parker’s comments “assault the authority and integrity
of the federal judiciary” and “publicly endorse . . . [defiance of] Obergefell.” SPLC
further complained that Justice Parker “offers ridicule and suggests defiance,” which
in turn “foments the false impression in the public’s mind that the federal judiciary
has tyrannically taken for itself unconstitutional power . . . .” Thus, said the SPLC,
Justice Parker’s expression of criticism of the federal courts in general, and the U.S.
Supreme Court in particular, is worthy of state-sanctioned disciplinary action
because it violated of a host of Judicial Canons promulgated by the state of Alabama.

7

Specifically, the complaint alleges that Justice Parker’s comments were in
violation of Canon 1, which requires a judge to observe “high standards of conduct
so that the integrity . . . of the judiciary may be preserved”; Canon 2(A), which
requires a judge to “conduct himself at all times in a manner that promotes public
confidence in the integrity . . . of the judiciary”; and Canon 3(A)(6), which requires
a judge to “abstain from public comment about a pending or impending proceeding
in any court.”4 (Doc. # 1-1.)
On November 5, 2015, the JIC notified Justice Parker that it intended to
investigate all three purported violations, and informed him of his right to respond.
(Doc. # 1-3.) Justice Parker responded on January 4, 2016. (Doc. # 26-1.) Since
then, the JIC has kept its investigation open but has not filed a formal complaint with
the Court of the Judiciary (“COJ”), which is the body responsible for trying ethics
complaints after formal charges are filed. COJ decisions are appealable to the
Alabama Supreme Court. Ala. Const., art. VI, § 157(b). Justice Parker filed this
lawsuit in federal court on June 15, 2016. (Doc. # 1.)
V. DISCUSSION
While acknowledging the First Amendment issues that arise when the SPLC,
in a political season, attempts to use an agency of state government to suppress

4

The other statutory provision challenged by Justice Parker is Section 159 of the Alabama
Constitution, which disqualifies him from acting as a judge while there is a pending JIC complaint.
Ala. Const., art. VI, § 159.

8

speech with which the SPLC disagrees, the court also recognizes its duty to resolve
legal questions in order of their priority. Thus, the threshold issue before the court
today is whether the court must decline to exercise jurisdiction under the abstention
doctrine of Younger v. Harris, 401 U.S. 37 (1971). In Younger, the Supreme Court
held that “the possible unconstitutionality of a [state] statute ‘on its face’ does not in
itself justify an injunction against good-faith attempts to enforce it.” Id. at 54. This
“longstanding public policy against federal court interference with state court
proceedings” reflects “a proper respect for state functions, a recognition of the fact
that the entire country is made up of a Union of separate state governments, and a
continuance of the belief that the National Government will fare best if the States
and their institutions are left free to perform their separate functions in their separate
ways.” Id. at 43–44. The federal government, “anxious though it may be to
vindicate and protect federal rights and federal interests, always endeavors to do so
in ways that will not unduly interfere with the legitimate activities of the States.” Id.
at 44. Therefore, if Younger compels abstention, the court will not reach the
underlying First Amendment issue.
Although Younger itself involved the state prosecution of a criminal
defendant, the Supreme Court has since extended Younger to also apply to “civil
enforcement proceedings” and civil proceedings “that are uniquely in furtherance of
the state courts’ ability to perform their judicial functions.” New Orleans Pub. Serv.,

9

Inc. v. Council of New Orleans, 491 U.S. 350, 368 (1989) (“NOPSI”). Younger
abstention is thus appropriate in only three circumstances: (1) criminal prosecutions;
(2) civil enforcement proceedings; and (3) civil proceedings that promote the state’s
ability to perform its judicial functions. Id. When such cases arise, courts determine
whether to abstain by considering the Middlesex factors: “first, do [the proceedings]
constitute an ongoing state judicial proceeding; second, do the proceedings implicate
important state interests; and third, is there an adequate opportunity in the state
proceedings to raise constitutional challenges.” Middlesex Cty. Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). However, satisfaction of the
Middlesex factors, by itself, is not sufficient to justify Younger abstention. See Sprint
Commc’ns v. Jacobs, 134 S. Ct. 584, 593 (2013) (clarifying that the “Middlesex
conditions . . . were not dispositive”).

The factors are applied only after a

determination that the case falls into one of the categories enunciated by the court in
NOPSI. Id. at 594 (“Younger extends to the three ‘exceptional circumstances’
identified in NOPSI, but no further.”).
Because the regulation of judicial ethics is unquestionably in furtherance of
Alabama’s ability to perform its judicial functions, it is appropriate to consider the
three Middlesex factors. NOPSI, 491 U.S. at 368. The court will analyze each factor
but will do so out of order, leaving the first (and, in this case, the most difficult)
factor for last.

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A.

Important State Interest
Justice Parker does not dispute that Alabama has an important interest in

regulating the conduct of state judges. Indeed, the Supreme Court “repeatedly has
recognized that the States have important interests in administering certain aspects
of their judicial systems.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12–13 (1987).
He does, however, contend that this court should decline to abstain because the state
proceedings in which he finds himself are not “quasi-criminal” in nature, and thus
not susceptible to Younger.
This argument misses the mark. “[W]hether the proceeding is labeled civil,
quasi-criminal, or criminal in nature, the salient fact is whether federal-court
interference would unduly interfere with the legitimate activities of the state.”
Middlesex, 457 U.S. at 433 n.12 (citation and quotation marks omitted). The ethical
conduct of state court judges being integral to the administration of any state judicial
system, the court finds that enjoining the enforcement of state judicial ethics canons
would unduly interfere with legitimate state activities. Thus, the second prong is
satisfied.
B.

Adequate Opportunity to Raise Constitutional Challenges
“Minimal respect for the state processes, of course, precludes any

presumption that the state courts will not safeguard federal constitutional rights.”
Middlesex, 457 U.S. at 431. Accordingly, the burden of proof is placed on the party

11

claiming the state proceeding is inadequate. Pennzoil Co., 481 U.S. at 14. Here,
Justice Parker complains that the JIC cannot give him the remedies he desires, but
he never denies his ability to raise his federal constitutional claims in the JIC forum.
(Doc. # 34, at 14–18.) Indeed, the JIC provided a copy of the Justice’s response,
complete with his signature, which raises the very same constitutional claims he has
raised in this court. (Doc. # 26-1, at 6–23.) As the Supreme Court has made clear,
the “pertinent inquiry is whether the state proceedings afford an adequate
opportunity to raise the constitutional claims.” Middlesex, 457 U.S. at 432 (quoting
Moore v. Sims, 442 U.S. 415, 426 (1979)). It appears Justice Parker has had such an
opportunity here.5
If the court’s independent judgment were not enough, the Eleventh Circuit has
suggested the same conclusion, albeit with some uncertainty. In Butler v. Alabama
Judicial Inquiry Commission, 245 F.3d 1257 (11th Cir. 2001) (“Butler I”), this
circuit certified several questions to the Alabama Supreme Court in an almost
identical case involving charges against a justice of the Alabama Supreme Court in
an election season. One of the questions asked whether a defendant may “raise and
have decided a constitutional challenge to a judicial canon” in the same type of JIC

5

The argument that the JIC would not consider the federal Constitution in its decision,
despite constitutional issues being raised, is likewise destined for failure. As the Supreme Court
said in regard to a similar argument, “it would seem an unusual doctrine . . . to say that the
Commission could not construe its own statutory mandate in the light of federal constitutional
principles.” Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 629 (1986).

12

and COJ proceedings at issue in this case. Id. at 1265. The only Justice to directly
answer the question indicated that constitutional objections could be raised and
decided in such proceedings. Butler v. Ala. Judicial Inquiry Comm’n, 261 F.3d
1154, 1159 (11th Cir. 2001) (“Butler II”). Consequently, while recognizing the lack
of “authoritative guidance,” the Eleventh Circuit concluded that “an adequate state
forum likely exists.” Id. The facts of this case only serve to further corroborate that
judgment. Thus, the third Middlesex prong is satisfied.
C.

Ongoing State Judicial Proceeding
Justice Parker’s best argument against Younger abstention is that the

investigation being conducted by the JIC is not an ongoing judicial proceeding. To
support this contention, Justice Parker points out that no official complaint has been
filed with the COJ and cites a number of authorities suggesting that investigatory
proceedings, in the absence of formal judicial proceedings, are insufficient to trigger
Younger. (Doc. # 34, at 7.) However, upon closer examination, each of the
authorities relied upon is either distinguishable or inapplicable to this case.
For example, Justice Parker relies on Sprint Communications v. Jacobs, 134
S. Ct. 584, 592 (2013), for the proposition that “preliminary investigations without
the commencement of formal judicial proceedings fail to constitute state judicial
proceedings sufficient to invoke Younger abstention.” (Doc. # 34, at 7.) He is
correct that Jacobs involved an investigation rather than a formal proceeding, and

13

that the court declined to apply Younger. But he is wrong to suggest that the
proceeding’s investigatory nature is what made the court decide to hear the case.
The court in Jacobs declined to apply Younger because the investigation at issue did
not fall into one of the three exceptions set forth in NOPSI. Jacobs, 134 S. Ct. at
593–94 (“Younger extends to the three ‘exceptional circumstances’ identified in
NOPSI, but no further.”).

Because this case involves state interests that are

“uniquely in furtherance of the state courts’ ability to perform their judicial
functions”—i.e., because it involves one of the “exceptional circumstances”
enunciated in NOPSI—the reasoning of Jacobs does not apply.
Nor can the JIC proceedings at issue here fairly be analogized to a criminal
prosecution that “has been threatened, but is not pending.” See Steffel v. Thompson,
415 U.S. 452, 454 (1974). In the criminal context, the Supreme Court has said that
threatened criminal prosecutions are not sufficient to justify abstention under
Younger. Id. Justice Parker argues that the JIC investigation, without the filing of a
formal complaint with the COJ, is like a threatened prosecution. (Doc. # 34 at 8.)
In the court’s view, the JIC investigation is more like a grand jury proceeding.
The Alabama Appellate Courts website explains that the JIC, which is a body
created by the state constitution, see Ala. Const., art. VI, § 156, is “charged with
investigating complaints of misconduct or professional wrongdoing on the part of

14

judges.”6 The commission consists of nine members, three of whom are not lawyers,
who are appointed by various state officials.7 If five or more members of the
commission, after investigation, find “a reasonable basis exists to charge a judge
with a violation,” then the JIC “is authorized to file a complaint with the Court of
the Judiciary.” The website summarizes the role of the commission as one “similar
to that of a grand jury.” Consistent with the U.S. Supreme Court’s practice in
previous cases, this court is inclined to defer to the state’s own description of its
proceedings and treat the JIC like a grand jury. See, e.g., Middlesex, 457 U.S. at
432–34.
However, likening the JIC procedure to that of a grand jury does not resolve
the issue. On the question of whether a grand jury proceeding constitutes an ongoing
state judicial proceeding of the kind required to invoke Younger, the circuits are split.
Texas Ass’n of Business v. Earle, 388 F.3d 515, 519 (5th Cir. 2004) (noting the
circuit split). The Eleventh Circuit has yet to decide the issue, but of the four circuits
that have, three have held that a grand jury proceeding constitutes an ongoing
judicial proceeding under Younger. Id. at 520–21; Craig v. Barney, 678 F.2d 1200

6

http://judicial.alabama.gov/appl_canons.cfm, last visited Sept. 12, 2016.

7

Of the commission’s membership, the website says the following: “The commission is
composed of an appellate judge appointed by the supreme court (cannot be a supreme court
justice); two circuit judges appointed by the Circuit Judges’ Association; one District Judge
appointed by the Lt. Governor; three persons who are non-lawyers appointed by the governor with
confirmation by the Senate; and two members of the State Bar appointed by the Board of Bar
Commissioners.”

15

(4th Cir. 1982); Kaylor v. Fields, 661 F.2d 1177 (8th Cir. 1981). But see Monaghan
v. Deakins, 798 F.2d 632 (3rd Cir. 1986) (holding that a grand jury proceeding is not
ongoing), aff’d in part, vacated in part on other grounds, 484 U.S. 193 (1998).8
Assuming without deciding that the JIC proceedings are analogous to grand
jury proceedings, the court finds these authorities persuasive. However, this court
need not rely on the majority view of the above circuit split. Indeed, the consensus
view of a series of nonbinding cases that are analogous, but admittedly not identical,
to this case would give the court more pause if it were not for several other factors
weighing in favor of applying Younger here. There are at least three additional
reasons that weigh in favor of abstaining rather than hearing this case.
First, perhaps the most convincing of these reasons is the fact that the Supreme
Court has held previously that the prerequisites for Younger were satisfied at an
identical stage of a similar proceeding in New Jersey. In Middlesex, the U.S.
Supreme Court held that a state disciplinary proceeding—which was administered
by the New Jersey state bar and, much like the proceeding here, designed to
discipline lawyers who had committed ethics violations—was “ongoing” as soon as
the initial complaint was filed. 457 U.S. at 433. Middlesex was perhaps an easier

8

District courts facing the same question overwhelmingly have reached the consensus view
that a grand jury proceeding is sufficient to satisfy Younger. See, e.g., Doe v. The Order Desk,
Inc., No. CIV.A.3:97-CV-1479, 1997 WL 405141, at *7 (N.D. Tex. July 14, 1997); Law Firm of
Daniel P. Foster, P.C., v. Dearie, 613 F. Supp. 278, 280 (E.D.N.Y. 1985); Notey v. Hynes, 418 F.
Supp. 1320, 1326 (E.D.N.Y. 1976).

16

case than what the court faces today because the New Jersey Supreme Court had
made very clear that the proceeding was “judicial in nature” from the outset.9 Id.
However, as the U.S. Supreme Court clarified in a subsequent case, a key factor
weighing into its decision in Middlesex was the fact that the adjudication of the ethics
committee was ultimately appealable to the state supreme court. Ohio Civil Rights
Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 627 (1986) (“[W]e have held
that federal courts should refrain from enjoining lawyer disciplinary proceedings
initiated by state ethics committees if the proceedings are within the appellate
jurisdiction of the appropriate State Supreme Court.”) (emphasis added). The same
is true of the JIC proceeding at issue here. Ala. Const., art. VI, § 157(b). This
holding weighs in favor of applying Younger.
Second, even supposing the JIC proceedings were administrative rather than
“judicial in nature,” application of the Younger doctrine is appropriate. The Supreme
Court has readily applied Younger “to state administrative proceedings in which
important state interests are vindicated, so long as in the course of those proceedings
the federal plaintiff would have a full and fair opportunity to litigate his
constitutional claim.” Dayton, 477 U.S. at 627. As Parts V.A and V.B already have
demonstrated, the JIC proceedings are designed to vindicate an important state

9

Because Younger requires that there be a proceeding that is both “ongoing” and “judicial,”
the court in Middlesex faced a simpler task in that half the work was already done for it.

17

interest and do in fact provide an adequate opportunity to litigate constitutional
claims. This favors abstention.
Third, as the JIC points out in its briefing (Doc. # 36, at 3–4), the circuits
uniformly have treated state administrative proceedings as “unitary” in determining
whether they are “ongoing” (or “pending”) for Younger purposes. See Hudson v.
Campbell, 663 F.3d 985, 988 (8th Cir. 2011); Laurel Sand & Gravel, Inc. v. Wilson,
519 F.3d 156, 167 (4th Cir. 2008); Maymo-Melendez v. Alvarez-Ramirez, 364 F.3d
27, 35 (1st Cir. 2004); Majors v. Engelbrecht, 149 F.3d 709, 713 (7th Cir. 1998);
O’Neill v. City of Phila., 32 F.3d 785, 791 (3rd Cir. 1994). See also M.R. v. Bd. of
Sch. Comm’rs of Mobile Cty., No. 11-0245-WS-C, 2012 WL 3778283, at *3 (S.D.
Ala. Aug. 30, 2012) (citing the above cases and discussing the “unitary proceeding”
rationale in depth). All five circuits that have ruled on the issue have agreed that, to
use the language employed by the First Circuit, “Younger now has to be read as
treating the state process . . . as a continuum from start to finish,” which at any point
precludes the “right to detour into federal court.” Maymo-Melendez, 364 F.3d at 35.
Under this understanding, state proceedings, whether judicial or administrative, are
considered “ongoing” from the very beginning of the process until the end, as long
as the final decision is reviewable by the state court system. The state process has
clearly begun here. Thus, even if the JIC proceeding is administrative, Younger
likely applies.

18

VI. CONCLUSION
In the absence of binding Eleventh Circuit or Supreme Court authority, this
court heeds the reasoned opinions of its colleagues in other circuits. Whether the
JIC proceeding is more appropriately characterized as a grand jury or administrative
proceeding, the relevant authorities suggest that it is “ongoing” for purposes of
Younger. Therefore, in accordance with the longstanding principle of comity and
out of respect for federalism, the court concludes that Younger is applicable here and
abstains from exercising jurisdiction.
Alternatively, if there be any doubt about the prudence of today’s decision,
the Eleventh Circuit instructs courts to “err—if we err at all—on the side of
abstaining.” Butler II, 261 F.3d at 1159. To the extent that the question today is
unclear, abstention is appropriate.
It is ORDERED that Defendants’ motions to dismiss (Docs. # 12, 13) are
GRANTED. A final judgment will be entered separately.
DONE this 29th day of September, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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