Troy E. Brooks, Plaintiff, Appellant, v. New Hampshire Supreme Court, et al., Defendants, Appellees, 80 F.3d 633 (1st Cir. 1996)

Balancing responsibility between federal and state governments in a republic that assigns interlocking sovereignty to each often requires federal courts to walk an unsteady tightrope. From a federal court's perspective, this special sort of judicial funambulism always must proceed in the spirit of cooperative federalism tempered, however, by the need to avoid the pitfalls inherent in blind deference to state autonomy.

The case at hand implicates the division of responsibilities between federal and state judicial systems but does not require us to walk a very high wire. We need only tread on solid ground, previously paved by the United States Supreme Court, and apply the Court's teachings to the peculiar factual and legal terrain that underlies this appeal. Because that exercise persuades us that the district court performed its task in step with the principles enunciated by the Court, we affirm the order from which the plaintiff appeals.

We supply a thumbnail sketch of the relevant facts. In 1992, plaintiff-appellant Troy E. Brooks and Erica Bodwell, a member of the New Hampshire bar, engaged in an intimate relationship during a period when Bodwell was separated from her husband. Bodwell became pregnant. She obtained a divorce in late 1992, but the final decree made no provision for her unborn child.

Bodwell gave birth to a son in February of 1993 and subsequently initiated a paternity suit against Brooks in which she maintained that he was the boy's biological father. Brooks acknowledged paternity and the court entered a provisional order covering matters such as support, custody, and visitation.

Shortly thereafter, Bodwell reconciled with her ex-husband, moved to discontinue the paternity action, and, relying on the fact that the child was conceived while she was still married, sought refuge in the presumption of legitimacy. Brooks objected to the proposed dismissal of the paternity suit and set out to confirm his legal status as the boy's father. After numerous skirmishes concerning paternity (not relevant here), Brooks filed complaints with the New Hampshire Supreme Court Professional Conduct Committee (the Committee) against three attorneys, including Erica Bodwell, accusing them of flouting various ethical canons in their handling of the paternity suit. The Committee dismissed the complaints after conducting an investigation.

Brooks then sought to put to use in the paternity suit both the fact that a disciplinary complaint had been instituted against Erica Bodwell and certain evidence to which he became privy during the course of the Committee's investigation. His efforts were thwarted by a rule prohibiting the disclosure of knowledge obtained during the course of attorney disciplinary proceedings. See N.H.Sup.Ct.R. 37(17) (a) (1984).¹  Brooks retorted by filing a pro se petition in the New Hampshire Supreme Court (the NHSC) in which he contended that Rule 37(17) (a) abridged his First Amendment right to free speech and asked that the rule be invalidated.

On March 23, 1995, the NHSC agreed to entertain Brooks' petition. The court scheduled briefing and oral argument (with the proviso that all matters connected with the proceeding remain confidential). Brooks then retained counsel, Philip Cobbin, who filed a brief on his behalf. The court accepted the case on a paper record once Brooks and his attorney refused to participate in oral arguments behind closed doors. The case has yet to be decided.

After the matter had been taken under advisement, Brooks, acting as his own attorney, sued the members of the NHSC and of the Committee (and others, for good measure, including the state bar association) in New Hampshire's federal district court. His complaint sought declaratory and injunctive relief aimed at halting the enforcement of Rule 37(17) (a). In what amounted to anticipatory disregard of that rule, he attached a copy of the NHSC's order (agreeing to entertain his petition, but only in camera) to his federal court complaint. Attorney Cobbin subsequently entered an appearance for Brooks in the federal court and moved for a preliminary injunction designed (a) to freeze the paternity suit until the federal court had ruled on Brooks' constitutional claim, (b) to force the NHSC to dismiss Brooks' petition without prejudice, and (c) to prevent that court from exercising its contempt powers under Rule 37(17) (g) against Brooks. Without requesting the district court to seal the record, Attorney Cobbin included in the motion a copy of a brief filed in the confidential proceeding. Not surprisingly, the NHSC promptly directed the Committee to determine whether the lawyer had violated Rule 37(17) (a).

The district court refused to issue a preliminary injunction. The court reasoned that the proceeding pending in the NHSC called into play the doctrine of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971); that Brooks' claim implicated an important state interest, namely, the administration of the attorney disciplinary system; that Brooks could obtain a full and fair hearing on his federal constitutional claim before the state tribunal; and that, therefore, the Younger doctrine disabled the district court from granting the requested relief. This appeal ensued.² 

Technically, this is an appeal from the denial of a preliminary injunction,³  and therefore the lower court's decision--assuming that it applied the appropriate legal standard--ordinarily must stand unless the appellant demonstrates an abuse of discretion. See, e.g., Weaver v. Henderson, 984 F.2d 11, 12-13 (1st Cir. 1993). If Younger applies, however, abstention is mandatory, see Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 816 n. 22, 96 S. Ct. 1236, 1246 n. 22, 47 L. Ed. 2d 483 (1976); Trust & Investment Advisers, Inc. v. Hogsett, 43 F.3d 290, 293-94 (7th Cir. 1994); Fresh Int'l Corp. v. Agricultural Labor Relations Bd., 805 F.2d 1353, 1356 n. 2 (9th Cir. 1986), and we must review de novo the essentially legal determination of whether the requirements for abstention have been met. See, e.g., Trust & Investment Advisers, 43 F.3d at 294; Kenneally v. Lungren, 967 F.2d 329, 331 (9th Cir. 1992), cert. denied, 506 U.S. 1054, 113 S. Ct. 979, 122 L. Ed. 2d 133 (1993); Traughber v. Beauchane, 760 F.2d 673, 675-76 (6th Cir. 1985).⁴  That standard supervenes the abuse of discretion inquiry, and applies foursquare even though we are reviewing the district court's denial of injunctive relief. See Fieger v. Thomas, 74 F.3d 740, 743 (6th Cir. 1996) (exercising de novo review in kindred circumstances); Goldie's Bookstore, Inc. v. Superior Court, 739 F.2d 466, 468 (9th Cir. 1984) (similar).

This usurpation of the customary standard of review does not create an awkward anomaly. The primary integer in the preliminary injunction calculus is the plaintiff's probability of success on the merits. See, e.g., Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991).⁵  This means, of course, that the plaintiff must show a likelihood of succeeding in the pending proceeding. When Younger applies, the district court must refrain from reaching the merits of the plaintiff's claims and, thus, there is no real possibility--let alone a likelihood--that the plaintiff will succeed in his action. A fortiori, there can be no abuse of discretion in refusing to grant preliminary injunctive relief.

Against this backdrop, we turn to a consideration of whether Younger abstention is appropriate in this case. Our analysis unfolds in four layers.

The Younger doctrine welds principles of federalism and comity into a fulcrum that can then be used to achieve a proper balance between sensitive federal and state interests. See Younger, 401 U.S. at 44, 91 S. Ct. at 750. Based on these principles, the Younger Court articulated the federal judiciary's obligation to refrain from adjudicating the merits of federal claims where to do so would needlessly inject federal courts into ongoing state criminal prosecutions. See id. Doctrinal evolution over the next quarter-century brought other types of ongoing state proceedings, including civil actions and administrative adjudications, within the ambit of Younger abstention. See, e.g., New Orleans Public Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 367-68, 109 S. Ct. 2506, 2517-18, 105 L. Ed. 2d 298 (1989); Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477 U.S. 619, 627, 106 S. Ct. 2718, 2722, 91 L. Ed. 2d 512 (1986).

Perhaps the most revealing elucidation of the balance that the Younger Court wished to achieve is found in Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982). There the New Jersey Ethics Committee instituted a disciplinary proceeding against a defense lawyer who, during a criminal trial, had made statements vilifying the judicial system. See id. at 428, 102 S. Ct. at 2519. The lawyer sued in federal court to block the disciplinary proceeding on the ground that the standards of professional conduct relied upon by the committee abridged his First Amendment rights. The district court abstained, concluding that the lawyer could raise his claims in the disciplinary proceeding and on subsequent judicial review. The Third Circuit reversed on the basis that a bar disciplinary proceeding did not provide a suitable forum for the adjudication of the lawyer's constitutional claims. 643 F.2d 119.

The Supreme Court reinstated the district court's ruling. 457 U.S. at 437, 102 S. Ct. at 2523. In the process the Court established the basic analytical framework that still governs Younger abstention. Under this paradigm, a federal court must abstain from reaching the merits of a case over which it has jurisdiction so long as there is (1) an ongoing state judicial proceeding, instituted prior to the federal proceeding (or, at least, instituted prior to any substantial progress in the federal proceeding), that (2) implicates an important state interest, and (3) provides an adequate opportunity for the plaintiff to raise the claims advanced in his federal lawsuit. See id. at 432, 102 S. Ct. at 2521.

The next step in the pavane requires us to apply this tripartite framework to the case at bar.

1. Two of the three proceedings that Brooks seeks to enjoin--his petition questioning the constitutionality of Rule 37(17) (a) and the paternity suit in which he is embroiled--are pending before duly constituted state courts and are undeniably ongoing state judicial proceedings. See New Orleans Public Serv., 491 U.S. at 371, 109 S. Ct. at 2519 (listing rudiments of a judicial inquiry). The third proceeding--the embryonic contempt proceeding against Cobbin (which Brooks, in all events, may lack standing to contest)--is also judicial in nature. Middlesex itself involved a First Amendment challenge to a state's system of attorney discipline, and the Supreme Court held that attorney disciplinary proceedings are judicial proceedings for purposes of Younger abstention. See Middlesex, 457 U.S. at 433-34, 102 S. Ct. at 2521-22. Consequently, the first prerequisite for Younger abstention is satisfied.

2. It is evident that New Hampshire has a vital interest in regulating the subject matter of Brooks' claims. A state's judicial system is an important cog in its governmental apparatus, and no judicial system can function smoothly unless the attorneys who participate in it are held to high standards of professionalism and accountability. See id. at 434-35, 102 S. Ct. at 2522-23. Thus, regulating attorney conduct comprises a significant state interest for purposes of Younger abstention.⁶  See id.; see also Fieger, 74 F.3d at 745; Hirsh v. Justices of Calif. Supreme Court, 67 F.3d 708, 712-13 (9th Cir. 1995).

In the same vein, the confidentiality rule comprises a central element of the regulatory scheme. The NHSC has identified no fewer than four noteworthy purposes that the rule serves: (1) protecting attorneys' reputations; (2) protecting complainants' anonymity; (3) maintaining the integrity of pending investigations; and (4) preventing profligate disclosures that might endanger the interests of those sources from whom the state obtained information on a confidential basis. See State v. Merski, 121 N.H. 901, 437 A.2d 710, 715 (N.H.1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1439, 71 L. Ed. 2d 655 (1982). Since the rule's proper operation is itself of great moment to New Hampshire citizens, the second requirement for Younger abstention is satisfied.⁷ 

3. We also believe that the pending state proceedings allow an ample opportunity for Brooks to raise his constitutional challenge. The clearest illustration of this point is the proceeding presently pending before the NHSC (in which the very issue that forms the centerpiece of Brooks' federal complaint is raised, briefed, and teetering on the brink of decision). Any other assessment would defile the basic presumption that state courts are fully capable of safeguarding federal constitutional rights. See Middlesex, 457 U.S. at 431, 102 S. Ct. at 2520; Bettencourt v. Board of Registration in Medicine, 904 F.2d 772, 776 (1st Cir. 1990).

Here, the presumption is reinforced because the NHSC has demonstrated unequivocally that it takes questions anent the confidentiality provisions seriously. See, e.g., Petition of Burling, 139 N.H. 266, 651 A.2d 940 (1994). Indeed, when Brooks interposed his objections to the confidentiality rule, the NHSC--which could have brushed aside his petition as a matter of discretion--elected to entertain the objections, and did so in a proceeding that affords Brooks an adequate opportunity to present his constitutional arguments.

Though Brooks maintains that the NHSC proceeding is less than adequate because of its confidential character, the Supreme Court has never suggested that having an adequate opportunity to present a federal claim requires the parallel state proceeding be open to the public. Rather, the test is whether "state law clearly bars the interposition of the constitutional claims." Moore v. Sims, 442 U.S. 415, 425-26, 99 S. Ct. 2371, 2377-78, 60 L. Ed. 2d 994 (1979). Nothing in the confidential nature of the state court proceeding constitutes such a bar.⁸  The third (and final) requirement for Younger abstention is therefore satisfied.

Fulfillment of the three requirements for Younger abstention usually ends the federal inquiry. See Bettencourt, 904 F.2d at 779-80. But even if the Younger requirements are satisfied, a federal court may nonetheless intervene to halt an ongoing state judicial proceeding if the plaintiff demonstrates "bad faith, harassment, or any other unusual circumstance." Younger, 401 U.S. at 54, 91 S. Ct. at 755. Brooks suggests that his case trips the exception. He bases this suggestion broadly, but the only point that bears extended discussion is his allegation that the state tribunal is incompetent by reason of bias.

Judicial bias is a recognized basis for derailing Younger abstention, see, e.g., Gibson v. Berryhill, 411 U.S. 564, 577-79, 93 S. Ct. 1689, 1697-98, 36 L. Ed. 2d 488 (1973), but the claim requires more than the frenzied brandishing of a cardboard sword. Brooks' claim is pasted together from various bits and pieces of marginally relevant information. For example, he notes that several Justices of the NHSC have advocated confidential treatment of judicial disciplinary proceedings; that certain Justices have testified before legislative committees in opposition to restrictions on the Chief Justice's rulemaking power; that the NHSC will only hear oral argument on his petition behind closed doors; and that in the state court proceeding the Committee has staunchly defended the validity of the confidentiality rule. We think that such snippets, individually and collectively, are insufficient to show cognizable bias.

In the first place, the bias exception to the Younger abstention doctrine is inapposite if an ostensibly aggrieved party fails to employ available procedures for recusal of allegedly biased judges. See Middlesex, 457 U.S. at 435, 102 S. Ct. at 2522; Bettencourt, 904 F.2d at 780; Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624, 629 (9th Cir. 1989), cert. denied, 495 U.S. 904, 110 S. Ct. 1923, 109 L. Ed. 2d 287 (1990). Brooks has never sought the recusal of any individual Justice. While he attempts to justify this omission on the basis of various tactical considerations and by claiming that the NHSC's standard recusal mechanism is inapplicable to proceedings that fall within its original jurisdiction, his explanations lack force. For this reason alone, his claim must fail.

In the second place, the baseline showing of bias necessary to trigger Younger 's escape mechanism requires the plaintiff to offer some evidence that abstention will jeopardize his due process right to an impartial adjudication. See Gibson, 411 U.S. at 577, 93 S. Ct. at 1697; Bettencourt, 904 F.2d at 780. The "evidence" that Brooks presents does not approach this benchmark. At most, Brooks' claim depends on a purely conclusory allegation that the Justices of the NHSC are predisposed to uphold their own policies and rules. But an entire group of adjudicators cannot be disqualified wholesale solely on the basis of an alleged institutional bias in favor of a rule or policy promulgated by that group. See, e.g., Doolin Security Savs. Bank v. FDIC, 53 F.3d 1395, 1407 (4th Cir.), cert. denied, --- U.S. ----, 116 S. Ct. 473, 133 L. Ed. 2d 402 (1995); Hammond v. Baldwin, 866 F.2d 172, 177 (6th Cir. 1989).

To implicate due process, claims of general institutional bias must be harnessed to a further showing, see Gibson, 411 U.S. at 579, 93 S. Ct. at 1698, such as a potential conflict of interest, see, e.g., Ward v. Village of Monroeville, 409 U.S. 57, 60, 93 S. Ct. 80, 82, 34 L. Ed. 2d 267 (1972), or a pecuniary stake in the outcome of the litigation, see, e.g., Bettencourt, 904 F.2d at 780 n. 10. For aught that appears, the Justices' interest (if any) in maintaining the privacy of attorney disciplinary proceedings appears to be purely Platonic.⁹  At least, Brooks has not produced any evidence that the NHSC or any individual Justice stands to gain or lose depending on whether attorney disciplinary proceedings are conducted in public or private, nor has he revealed the existence of any particularized interest in the outcome of his litigation that might tend to undermine the Justices' impartiality.

In the third place, to the extent that Brooks contends that any individual Justice is actually biased or has prejudged his case, he offers no concrete evidence to that effect. Thus, he bumps up against the historic presumption that judges are "men [and women] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances." Withrow v. Larkin, 421 U.S. 35, 55, 95 S. Ct. 1456, 1468, 43 L. Ed. 2d 712 (1975) (internal quotation marks and citation omitted). The presumption of judicial impartiality cannot be trumped by free-floating invective, unanchored to specific facts. See Kenneally, 967 F.2d at 333; Bettencourt, 904 F.2d at 780 n. 10.

We add brief comments concerning two other claims that Brooks seems to make.

1. To the extent that Brooks invites us to forgo Younger abstention because his attorney is the subject of a bad-faith prosecution by the NHSC (arising out of disclosures made in violation of Rule 37(17) (a) whilst representing Brooks), we decline the invitation. The NHSC's investigation of Cobbin is not an enforcement proceeding brought without any realistic expectation of finding a violation of a rule; and, therefore, the investigation does not catalyze the bad-faith exception to the Younger doctrine. See Younger, 401 U.S. at 48, 91 S. Ct. at 752; Fieger, 74 F.3d at 750; see also Dombrowski v. Pfister, 380 U.S. 479, 482, 85 S. Ct. 1116, 1118, 14 L. Ed. 2d 22 (1965).

2. In something of a non sequitur, Brooks, citing Younger, claims that the threat of disciplinary proceedings against him and his attorney for violations of the confidentiality rule chills the exercise of his First Amendment rights, and that the confidentiality rule is therefore "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." Younger, 401 U.S. at 53-54, 91 S. Ct. at 754-55 (quoting Watson v. Buck, 313 U.S. 387, 402, 61 S. Ct. 962, 967, 85 L. Ed. 1416 (1941)). But Younger itself belies this claim. The Younger Court declared that "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." Id. 401 U.S. at 51, 91 S. Ct. at 753; accord Fieger, 74 F.3d at 750. Here, Brooks has posited no other legally tenable basis for his challenge.

We need go no further. Although Brooks raises an important question about the interplay between New Hampshire's attorney disciplinary system and the First Amendment, that question is presently pending before the New Hampshire Supreme Court in a judicial proceeding that Brooks himself instituted. If, in the end, Brooks is not content with the result of that adjudication, he may then seek certiorari in the Supreme Court of the United States. He may not, however, rewardingly request the federal district court to enjoin the state proceedings.

Affirmed.