Brooks v. New Hampshire Supreme Court CV-95-166-M 09/07/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Troy Brooks, Plaintiff,

v. Civil No. 95-166-M

New Hampshire Supreme Court, et al.. Defendants.

O R D E R

Currently pending before the court are two Motions for

Temporary Restraining Order (documents no. 19 and 24), an

Objection to Magistrate Judge's Report and Recommendation

relative to Plaintiff's earlier Motion for Preliminary Injunction

(document no. 20), and, by implication, a motion to reconsider

the court's denial of plaintiff's third motion for temporary

restraining order (document no. 21). A telephone conference was

held on the afternoon of September 6, 1995. Attorney Philip T.

Cobbin, Esq., appeared on behalf of the plaintiff and Senior

Assistant Attorney General Stephen J. Judge appeared on behalf of

the defendants. For the reasons briefly outlined below,

plaintiff's motions for temporary restraining order are denied,

the report and recommendation of the magistrate judge is approved and accepted, and plaintiff's motion for preliminary injunction

is denied.

Like the magistrate judge, I also find plaintiff's

pleadings, both those filed by him in his pro se capacity and

those subseguently filed through counsel, to be unclear and

somewhat difficult to decipher. Nevertheless, it is apparent

that, essentially, plaintiff seeks preliminary injunctive relief

staying pending state administrative and judicial proceedings

related to enforcement of the New Hampshire Supreme Court's

confidentiality rules applicable to proceedings before its

Professional Conduct Committee and Judicial Conduct Committee, as

well as a collateral state civil paternity suit.

The magistrate judge considered plaintiff's preliminary

injunction motion (

(b)(1)(B)) and filed a report

(document no. 13) recommending that injunctive relief be denied

on grounds that plaintiff's motion essentially seeks a federally

ordered stay of state court proceedings, which, in light of the

restrictions imposed by the Anti-Injunction Act,

,

2 and federalism-based notions of comity underlying the Younger

Abstention Doctrine,1 ought not to be granted.

A. The Hearing on Plaintiff's Petition to the Supreme Court.

It appears from the pleadings, and from the discussion with

counsel, that plaintiff initiated a petition in the New Hampshire

Supreme Court, invoking its original jurisdiction, for the

purpose of challenging the constitutionality of certain rules of

confidentiality applicable to Professional Conduct Committee and

Judicial Conduct Committee proceedings. The New Hampshire

Supreme Court accepted the petition as to that issue, ordered

briefs to be filed by the interested parties, and scheduled oral

argument for September 7, 1995. Part of the relief plaintiff

seeks from this court is an order staying the very state court

proceedings he initiated (i.e., his challenge to the

constitutionality of the confidentiality rules). In support of

his motions, plaintiff asserts a general bias on the part of the

New Hampshire Supreme Court Justices, which he claims will

prevent him from obtaining a full and fair hearing on his federal

constitutional claims in that state proceeding.

Younger v. Harris,

(1971)

3 Based on the pleadings before it, this court cannot find

that it "plainly appears" that plaintiff is unable to raise his

federal constitutional claims or that he will not obtain a full

and fair hearing in the ongoing state proceeding. Middlesex

County Ethics Comm, v. Garden State Bar Ass'n.,

(1982). The New Hampshire Supreme Court is unguestionably

empowered to entertain and rule upon plaintiff's federal

constitutional claims. Because plaintiff is a party in a civil

proceeding pending before the New Hampshire Supreme Court

involving important state interests, specifically the state's

interest in the operation of its judicial and attorney discipline

systems, and because he not only is not barred from raising his

federal constitutional claims in that proceeding, but in fact has

raised them, principles of federalism and comity counsel against

granting the relief reguested. See Younger v.

see

generally L. Tribe, American Constitutional Law, 201-208 (2d ed.

1988) .

Plaintiff's vague and general claims of bias on the part of

the sitting justices of the New Hampshire Supreme Court are

entirely insufficient to establish the absence of an opportunity

to obtain a fair hearing in that court. To the extent plaintiff

4 believes that any of the individual justices might somehow be

biased or predisposed to rule against him in his case, state

procedures and mechanisms exist to address that alleged source of

"unfairness." See e.g. Kualer v. Helfant,

(1975). However, the pleadings before this court do not indicate

that plaintiff has invoked those mechanisms. For example, he

apparently has not filed any motions for recusal of individual

justices in his case.

So, despite claiming entitlement to the extraordinary

eguitable remedy of an injunction against a pending state court

proceeding, plaintiff has failed to demonstrate that he has

exercised any of the rights available to him in state court which

would rectify his purported plight (e.g., voluntary withdrawal of

his petition to the Supreme Court, motion for recusal of the

justice(s) he claims are biased, etc.). Nor has plaintiff

suggested that the pursuit of such avenues would prove futile.

In light of all of the foregoing factors, issuance of an order

enjoining the previously scheduled hearing on plaintiff's

petition to the Supreme Court would be plainly inappropriate.

5 B. The Professional Conduct Committee Proceedings.

Plaintiff also seeks injunctive relief relative to the

Professional Conduct Committee's docketing of a committee­

generated complaint against his counsel. Specifically, the

Conduct Committee, at the reguest of the New Hampshire Supreme

Court, is making inguiry into whether Attorney Cobbin, by filing

certain documents in this court's proceeding, violated a New

Hampshire Supreme Court order directed to plaintiff which

provided that "pending further order of the court, this [state]

proceeding shall remain confidential." Attorney Cobbin is not a

litigant in this court, and does not personally invoke this

court's jurisdiction on his own behalf. Rather, the plaintiff

argues that the proceeding initiated by the Conduct Committee

effectively "chills" his own First Amendment rights in some way

and, therefore, ought to be enjoined.

The Younger Abstention Doctrine applies not only to judicial

proceedings, but also 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."

Ohio Civil Rights Comm, v. Dayton Christian Schools, Inc.,

,

(1986). Obviously, the

administrative disciplinary proceeding initiated by the

Professional Conduct Committee, like plaintiff's petition to the

state supreme court, involves important state interests (e.g.,

insuring that members of the bar, as officers of the court, fully

comply with the applicable Rules of Professional Conduct and with

court orders) .

A review of the pleadings reveals that the Professional

Conduct Committee has, consistently with its applicable rules,

taken note of facts which might constitute violations of the

Rules of Professional Conduct, and has accordingly instructed

Attorney Cobbin to respond to its inguiry within a specified

time. The inguiry appears to fall within the subject matter

jurisdiction conferred upon the Committee, and the intrusion

associated with its reguiring Attorney Cobbin to respond is

reasonable under the circumstances. Plaintiff's claim that the

Committee's inguiry into his counsel's conduct substantially

interferes with his own federal constitutional rights to free

speech is strained at best and, in any event, plaintiff has made

no showing that Attorney Cobbin (or plaintiff himself, to the

extent they share an identity of interest with regard to that

7 disciplinary matter) will be unable to present federal

constitutional defenses that might be available in that state

administrative proceeding. Of course, review of Professional

Conduct Committee determinations lies with the New Hampshire

Supreme Court, which, again, is fully empowered to consider

Attorney Cobbin's federal constitutional claims and, to the

extent plaintiff might have standing to challenge such a

determination, his claims as well.

The Report and Recommendation of the magistrate judge

(document no. 13) regarding plaintiff's motion for preliminary

injunction is approved and accepted, basically for the reasons

set forth therein. However, plaintiff's counsel correctly points

out in his third motion for temporary restraining order (document

no. 24) that, because he invoked the provisions of

in his amended complaint, the Anti-Injunction Act does not

strictly prevent this court from entering an injunction staying

ongoing state court proceedings, because §1983 suits have been

construed to be exempt from the flat bar of §2283. Accordingly,

the court does not adopt that portion of the magistrate's report

and recommendation relying upon the Anti-Injunction Act. The court will treat defendants' motion for temporary

restraining order (document no. 24) as an implicit motion to

reconsider the court's prior denial of his motion for temporary

restraining order (document no. 21) relying on the Anti-

Injunction Act, which motion to reconsider is granted. Having

reconsidered plaintiff's motion for temporary restraining order

(document no. 21) the court nevertheless denies the motion based

upon the Younger Abstention Doctrine as discussed above. As

Professor Tribe writes in his authoritative treatise:

If it had not been clear before Pennzoil [

(1987)], it is certainly clear now that the most basic underpinning of the Younger Doctrine is not any special eguity concept but, rather, a federalism-based notion of comity. That notion is fully applicable even when a suit is filed under

, and thereby escapes the absolute statutory bar of the Anti- Injunction Act,

, which for nearly two centuries has barred all but specifically exempted federal court injunctions against state court proceedings. See Michim v. Foster,

, 243 (1972) (although § 1983 suits are exempt from the flat bar of § 2283, that fact does not "gualify in any way the principles of eguity, comity and federalism that must restrain a federal court when asked to enjoin a state court proceeding") (emphasis added).

L. Tribe, American Constitutional Law, 203-204 n.9 (2d ed. 1988) To the extent the court has discretion to grant injunctive

relief under the Anti-Injunction Act, the court declines to

exercise that discretion under the circumstances presented here.

Conclusion

Plaintiff's Motions for Temporary Restraining Order

(documents no. 19, 21 and 24) are denied. Plaintiff's Motion for

Preliminary Injunction (document no. 20) is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 7, 1995

cc: Philip I. Cobbin, Esg. Stephen J. Judge, Esg.

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