Younger Abstention, Judicial Misconduct

A recent Eighth Circuit opinion, styled as a non-sexy (as if!) abstention case illustrates how federal abstention doctrines cause federal courts to look away from rights violations.  In Norwood v. Dickey, No. 04-3120 (8th Cir. Jun. 1, 2005):

Norwood, a licensed attorney practicing in Arkansas, filed a complaint with the Arkansas Commission alleging violations of a judicial canon against an Arkansas circuit court judge. The Arkansas Commission oversees all proceedings involving the discipline or disability of judges in the state courts of Arkansas. After filing the complaint, Norwood received a letter from Badami informing Norwood that if he publicly disclosed the nature of the complaint that he would be subject to punishment for contempt by the Arkansas Supreme Court, pursuant to Arkansas Judicial Discipline and Disability Commission Rule 72 and Ark. Code Ann. § 16-10-404.

Slip op. at 2 (emphasis added).  Arkansas' rule is both a prior restraint and a content-based restriction on speech - which means they're subject to strict scrutiny.  Norwood wanted to challenge the rule.  [I have a post in the works analyzing lawyer- and judge-made omertas.]  He thus filed a Section 1983 action in federal court, seeking declaratory and injunctive relief.

The District Court improperly dismissed his claim on abstention grounds.  The Eighth Circuit improperly affirmed.  Id. at 3-5.

Broadly stated, federal courts apply abstention doctrines, that is, they abstain from hearing a case, when they have jurisdiction but where prudence cautions against the exercise of jurisdiction.  One such instance where prudence requires abstention is where there is an ongoing state court proceeding.  Younger v. Harris.  Sans Younger, any person charged with a crime in state court could (in theory) march over to federal court and ask the federal court to enjoin the prosecution.  Because this would raise major federalism issues, and because it would burden the federal courts, a federal court must abstain from hearing controversies already pending in a state proceeding.  Per the Eighth Circuit:

[Under Younger v. Harris] federal courts to abstain from hearing cases when (1) there is an ongoing state judicial proceeding which (2) implicates important state interests, and when (3) that proceeding affords an adequate opportunity to raise the federal questions presented.

Fuller v. Ulland, 76 F.3d 957, 959 (8th Cir. 1996).  In Norwood, there was an ongoing proceeding involving alleged judicial misconduct. But there was not an adequate opportunity for Norwood to raise his federal question. "[N]either by statute nor by court rule does the State of Arkansas provide a procedure by which anyone other than the respondent in the administrative proceeding can challenge the constitutionality of the rules of disciplinary proceedings for judges at issue in this lawsuit."  Appellant's Brief at 18 (emphasis added).

As the panel noted: "Rule 12F of the Arkansas Judicial Discipline and Disability Commission Rules
allows the Arkansas "Supreme Court [to]. . . bring up for review any action taken upon any complaint filed with the Commission, and may also bring up for review a case in which the Commission has failed to act.'" Id. at 4 (citing Ark. J.D. & D.C. R. 12F).  But, the panel could not cite any opinion where the Arkansas Supreme Court reviewed the constitutionality of a rule.  Thus, while the Arkansas Supreme Court will review disciplinary actions under Rule 12F, the panel did not cite one example where the court heard a constitutional challenge, brought by a complaintaint, to a rule.  Thus, Norwood did not have a an adequate opportunity to raise his claim.

What's worse is that he never will.  His complaint against the judge was dismissed in 2004.  Id. at 5, n 3.  Thus, Norwood would not have standing to challenge the rule.  City of Los Angeles v. Lyons (holding that a person previously harmed by a policy does not have standing to enjoy enforcement of the policy unless he can demonstrate that the policy is likely to harm him again.)  But had the District Court not abstained, and assuming an exception to the mootness doctrine applied, Norwood would have been able to litigate against Arkansas' blantant speech suppression.

The Eighth Circuit's Norwood's decision is misguided.  The panel blindly applied Younger.  Younger abstention was designed as a principle of federalism, and is presupposes a fair and open forum where one can litigate his constitutional claims.  Where one can not litigant his claims, the reason for Younger collapses.