Murphy v. City of Manchester CV-98-541-B 09/17/99 P

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gregory J. Murphy

v. Civil No. C-98-541-B

City of Manchester, et a l .

MEMORANDUM AND ORDER

Gregory Murphy has filed a federal court complaint charging

that the Manchester Police Department and several of its

employees violated his First, Sixth, and Fourteenth Amendment

rights when they removed him from his position as a patrol

officer. He also asserts various state law claims. In this

order, I explain why I must dismiss Murphy's claims for

injunctive relief and stay his claims for damages based upon the

abstention doctrine announced in Younger v. Harris,

(1971) .

I.

Murphy has been employed as a patrol officer by the

Manchester Police Department for approximately 15 years. At all relevant times, he also served as president of the Manchester

Police Patrolman's Association. On or about September 25, 1998,

Murphy was notified that he was being charged with five separate

violations of the police department's rules and regulations. The

police department subseguently dropped one of the charges. The

remaining four charges all stem from Murphy's union-related

activities, including an editorial he wrote for the July edition

of the union's newsletter and remarks he made to new recruits at

the invitation of the police department.1 On both occasions,

Murphy referred to certain Manchester police officers who had

crossed a picket line during a 1997 contract dispute as "scabs,"

and urged other officers not to embrace them as "brother

officers." In accordance with the police department's

regulations, Murphy could either admit his guilt and accept

summary punishment from the chief of police or contest the

charges in a hearing before the department's disciplinary board.

Murphy chose the second option, and a hearing was scheduled for

October 27, 1998.

1 The four remaining charges consisted of two counts of "disobedience or violation of [a] department regulation, rule, order, instruction, or memorandum," one count of "conduct unbecoming an officer," and one count of an "act or omission contrary to good order and discipline." PI. Mot. for Temp. Rest. Order and Prelim. Inj. 5 11 at 5 (Doc. 8).

-2- The police department's regulations authorize the police

chief to appoint the members of the disciplinary board. The

board is composed of a police commissioner, an individual serving

as the chief's designee, and a patrol officer or superior officer

chosen from a list of approved individuals presented to the chief

by the various bargaining bodies. See Manchester Police

Department Rules and Regulations and/or Standard Operating

Procedures ("MPD-SOP") at A-19-11, A-19-12. The board must hold

a hearing on a formal charge. See

at A-19-15. If the

officer is found guilty, the board must then make a written

recommendation to the police chief concerning appropriate

discipline. See

Officers appearing before the board are

entitled to be represented by counsel. See

at A-19-11.

Although proceedings before the board are not governed by formal

rules of evidence, officers may present evidence, cross-examine

witnesses, and otherwise challenge the police department's case.

See

Murphy filed a pre-hearing motion seeking to disgualify

Police Chief Mark Driscoll from participating in the disciplinary

process. See PI. Mot. for Temp. Rest. Order and Prelim. Inj. Ex.

H (Doc. 8). Murphy alleged that Chief Driscoll could not

participate because he had initiated the charges against Murphy

-3- and, therefore, was biased against him. See

Murphy also

moved to recuse the police chief's designee to the board.

Lieutenant Thomas Steinmetz, because Steinmetz's appointment

allegedly violated a department regulation prohibiting a

"[s]uperior [o]fficer of the bargaining body" from serving on a

disciplinary board that is considering charges against a police

officer. See Pi. Mot. for Temp. Rest. Order and Prelim. Inj. Ex.

K (Doc. 8) (guoting MPD-SOP at A-19-12(F)). Finally, Murphy

attempted to have the city solicitor's office barred from

providing legal advice to the board because the city solicitor

had represented the police department in litigation against the

patrolman's association. See Pi. Mot. for Temp. Rest. Order and

Prelim. Inj. Ex. J (Doc. 8). The board denied all three motions

and rejected Murphy's motions to reconsider.

Shortly after the hearing began, Steinmetz ordered one of

Murphy's attorneys removed for inappropriate behavior. Murphy

subseguently appeared without counsel, refused to examine any

witnesses, and declined to present a defense. On November 19,

1998, the board found him guilty of each of the four charges. It

also recommended that he be suspended without pay for six months.

Chief Driscoll accepted the disciplinary board's findings. He

proposed to punish Murphy by: (1) suspending him without pay for

-4- six months; (2) requiring him to agree to refrain from "any

future conduct of the type described in the charges;" (3)

requiring him to agree that "any such future conduct will result

in his termination;" and (4) requiring him to apologize for his

misconduct. Murphy was terminated when he refused to accept the

proposed discipline.

Murphy has a right to appeal the police chief's ruling to

the Manchester Police Commission. See MPD-SOP at A-19-15(G). If

an appeal is taken, the commission must review the record and

determine whether to receive any additional evidence. See

at

A-19-15, A-19-16. It then must determine de novo whether the

officer is guilty of the charged misconduct and whether the

discipline ordered by the police chief should be imposed. See

at A-19-16. Murphy may seek judicial review of a police

commission ruling by filing a petition for writ of certorari in

superior court. See

at A-19-16(H) (providing that an

aggrieved officer may appeal to superior court); Kelley v. City

of Manchester, No. 94-E-170, slip op. at 2-3 (Hillsborough SS. N.

Dist. Jan. 29, 1995) (specifying that review of a police

commission's ruling is by writ of certiorari). Alternatively,

because Murphy claims that the disciplinary proceedings interfere

with protected union activities, he may challenge the police

-5- chief's order in an arbitration proceeding and appeal an adverse

ruling to the Public Employees' Labor Relations Board ("PELRB").

See

-A:6 (1987). He also has a right

to appeal an adverse PELRB ruling to the New Hampshire Supreme

Court. See

-A:14 (1987) . Murphy has

not invoked his right to arbitration. Nor has he yet sought

review of Chief Driscoll's decision by the police commission.

Murphy filed his federal court complaint one day before the

police department commenced formal disciplinary proceedings

against him. Murphy's complaint charges that Chief Driscoll's

termination order violates his First Amendment right to engage in

protected speech, his Fourteenth Amendment rights to substantive

and procedural due process,2 and his Sixth Amendment right to

counsel. The complaint also asserts several state law causes of

action. Murphy seeks both injunctive relief and damages.

II.

In Younger v. Harris, the United States Supreme Court,

2 Murphy asserts that his rights to due process are based on the Fifth Amendment. Since the Fifth Amendment does not apply directly to state and local officials acting under color of state law, however, I assume that Murphy intended to base his claims on the Fourteenth Amendment.

-6- citing considerations of comity, federalism, and equity, held

that federal courts may not "stay or enjoin pending state court

[criminal] proceedings except under special circumstances."

. The Court has expanded the Younger abstention

doctrine in recent years and applied it to cases involving

certain civil judicial proceedings and administrative quasi­

judicial proceedings. See, e.g., Huffman v. Pursue, Ltd.,

(1975); Trainor v. Hernandez,

(1977); Middlesex County Ethics Committee v. Garden

State Bar Ass'n,

(1982); Ohio Civil Rights Comm'n v. Davton Christian Schools, Inc.,

(1986); Pennzoil Co. v. Texaco Inc.,

(1987).

The Court has developed a four-part test, consisting of

three requirements and one exception, to determine whether the

Younger abstention doctrine applies in a particular case. First,

the federal case must affect pending state judicial proceedings.

See, e.g., Middlesex County,

. Second, the

proceedings must implicate important state interests. See

Third, the state proceedings must afford the federal plaintiff

adequate opportunity to raise any constitutional claims. See

If each of these requirements is satisfied, abstention is

required unless the federal plaintiff establishes that the state

proceedings are tainted by bad faith, harassment, or some other

extraordinary circumstance. See

; see also Younger,

. I review Murphy's federal complaint in light

of these four elements.

A. The First Younger Recruirement: Pending Judicial Proceedings

Murphy concedes that the disciplinary proceedings qualify as

"judicial proceedings" for purposes of the Younger abstention

doctrine. See Pi. Mem. at 4 (Doc. 17). He nevertheless argues

that the proceedings cannot be deemed to be "pending" because

they were not commenced until after he filed his federal court

-8- complaint and because he has not yet chosen to appeal the

termination order to the police commission. I examine each

argument in turn.

1. State proceedings commenced after the federal complaint was filed.

The Supreme Court has determined that a state proceeding

commenced after a federal complaint has been filed nevertheless

will be deemed to be "pending" for purposes of the Younger

abstention doctrine if no substantive actions concerning the

merits have occurred in the federal case prior to initiation of

the state proceeding. See Hicks v. Miranda,

(1975). In this case, the police department started the

disciplinary process before any substantive actions occurred in

the federal case. Accordingly, the disciplinary proceedings are

deemed to be "pending" for purposes of Younger abstention even

though they began after the federal complaint was filed.

2. State proceedings where an available administrative appeal has not yet been taken.

Murphy argues that the relief he seeks would not disrupt a

"pending" state proceeding because Chief Driscoll has issued his

termination order and Murphy has not appealed the order to the

police commission. I disagree. In Patsv v. Board of Regents,

(1982), the

Supreme Court held that a federal plaintiff need not exhaust

administrative remedies before asserting a claim in federal court

for relief based on

. See

. If the

scope of this ruling had not been limited by a more recent

Supreme Court decision, Murphy might well have argued that it

authorized him to bypass the disciplinary hearing process

entirely by filing suit in federal court. This argument is

foreclosed, however, by the Court's decision Davton Christian

Schools, which specifies that Patsv is inapplicable to

administrative proceedings that "are coercive rather than

remedial, began before any substantial advancement in the federal

action took place, and involve an important state interest."

-28 n.2; see also Kercado-Melendez v. Aponte-Rogue,

(1st Cir. 1987) ("[T]here is a significant

difference between a civil rights plaintiff who seeks to use the

federal courts to stop or nullify an ongoing state proceeding in

which she is a defendant, and a civil rights plaintiff who has an

option to initiate a state proceeding to remedy a constitutional

wrong perpetrated by a state actor. In the former case,

abstention is appropriate; in the latter, the Patsv rule

prevails.").

-10- The record in this case establishes that the police

department's disciplinary proceedings are precisely the type of

coercive administrative proceedings to which the Younger doctrine

was intended to apply. The police department commenced the

proceedings by issuing a complaint charging Murphy with

misconduct. Punishment was not imposed until after he had been

found guilty of the charged misconduct in an adversary hearing.

Murphy was not given a choice as to whether he wanted to

participate in the hearing. Instead, he could have avoided the

hearing only by admitting his guilt and accepting summary

punishment. Under these circumstances, Patsv provides no support

for Murphy's attempt to bypass the disciplinary hearing process.3

3 The First Circuit applied Patsv to permit a plaintiff to bypass state administrative proceedings in Kercardo-Melendez v. Aponte-Rogue. The present case, however, differs from Kercado- Melendez in two material respects. First, as the court recognized in Kercado-Melendez, the plaintiff in that case was given the option of initiating administrative proceedings to challenge a notice effectively discharging her for her position as superintendent of schools. See

. Here, in contrast, the administrative proceedings were initiated by the police department to determine whether disciplinary action was warranted. Second, the plaintiff in Kercardo-Melendez did not challenge the legality of the administrative hearing process. See

This fact was important to the court's ruling because, as the court noted, the comity and federalism concerns underlying the Younger doctrine are more directly implicated by a challenge to the legality of a state judicial proceeding. See

In this case, unlike in Kercardo-Melendez, Murphy directly challenged the legitimacy of the administrative proceedings that led to his

-11- Murphy's contention that the Younger doctrine is

inapplicable because the administrative proceedings ended when he

declined to appeal the police chief's termination order also

lacks merit. In rejecting a similar argument made by a plaintiff

who had challenged a state trial court ruling by filing suit in

federal court rather than pursuing an appeal in state court, the

Supreme Court stated,

[v]irtually all of the evils at which Younger is directed would inhere in federal intervention prior to completion of state appellate proceedings, just as surely as they would if such intervention occurred at or before trial. Intervention at the later stage is if anything more highly duplicative, since an entire trial has already taken place, and it is also a direct aspersion on the capabilities and good faith of state appellate courts. Nor . . . is federal intervention at the appellate stage any the less a disruption of the State's efforts to protect interests which it deems important. Indeed, it is likely to be even more disruptive and offensive . . . .

Huffman,

. These arguments apply with egual

force in the present case because Murphy's decision to file a

federal court complaint before exhausting his administrative

remedies threatens to undermine the hearing process established

termination. Thus, this case directly implicates the concerns on which the Younger doctrine is based.

-12- by the police department for the adjudication of disciplinary

complaints. See O'Neill v. City of Philadelphia,

,

791 (3d Cir. 1994) (Younger abstention applies to final

administrative rulings that have not been appealed to state

court); Alleghany Corp. v. Pomeroy,

(8th

Cir. 1990) (same); but c f . Norfolk & Western Rv. v. Pub. Util.

Comm'n of Ohio,

(6th Cir. 1991) (Younger

abstention does not apply if administrative proceedings have been

completed and the agency's ruling has not been appealed); Thomas

v. Texas State Bd. of Med. Exam'rs,

, 456 (5th Cir.

1987) (same). Accordingly, I reject Murphy's contention that no

state proceedings were pending for purposes of Younger abstention

simply because he has failed to appeal to the police commission.

B. The Second Younger Recruirement: Important State Interests are Implicated

Murphy next argues that Younger abstention is inappropriate

because the disciplinary proceedings do not implicate important

state interests. I also find this contention unpersuasive.

Murphy was charged with multiple violations of the police

department's regulations. The supervision of law enforcement

personnel sworn to protect and serve the public unguestionably

involves an interest of vital importance to state (or, in this

-13- case, municipal) government. See Gniotek v. City of

Philadelphia,

(E.D. Pa.) ("[S]tate action

in dismissing the plaintiff police officers was intended to

vindicate an important policy . . . for the protection of its

residents . . . ."), aff'd ,

(3d Cir. 1986); Fontaine

v. City of Chester, No. 85-2453,

, at

*11 (E.D. Pa. Aug. 28, 1986) (concluding that city had a

"paramount interest in performing its legitimate government

function of supervising and disciplining its law enforcement

officials"); McDonald v. Metro-North Commuter R.R. Div. of Metro.

Transit Auth.,

(S.D.N.Y. 1983) ("New York

State's interest in disciplining police officers . . . is the

sort of important state interest which precludes federal

interference . . . ."). Accordingly, there is little guestion

that the underlying disciplinary proceedings against Murphy

implicate an important state interest for the purposes of Younger

analysis .

C. The Third Younger Recruirement: An Adequate Opportunity to Raise Constitutional Challenges

_____ Younger's third reguirement mandates that a federal

plaintiff must have "an adeguate opportunity in the state

proceedings to raise constitutional challenges." Middlesex

-14- County, 457 U.S. at 432. A federal plaintiff alleging an

inability to raise constitutional claims must demonstrate that

"state procedural law barred [the] presentation of [his or her

constitutional] claims." Pennzoil,

(guoting Moore

v. Sims,

(1979)); Brooks v. New Hampshire

Supreme Court,

(1st Cir. 1996). In cases such

as this, where the federal court plaintiff did not attempt to

present his constitutional claims during the state proceedings, a

federal court "should assume that state procedures will afford an

adeguate remedy, in the absence of unambiguous authority to the

contrary." Pennzoil,

.

Murphy has failed to produce any evidence to support his

assertion that the police department's regulations prevented him

from presenting his constitutional claims to the disciplinary

board. Nor has he suggested that the police commission would

refuse to consider his claims if he were to appeal the

termination decision. The members of both bodies have a duty to

uphold the Constitution and absent evidence that one or more

board members are biased against him, I am unwilling to presume

that they are not prepared to discharge their constitutional

responsibilities .

In any event, even if the disciplinary board had refused to

-15- consider Murphy's constitutional claims. Younger's adequate

opportunity requirement would be satisfied if Murphy is accorded

a meaninqful chance to present his claims durinq the judicial

review process. See Davton Christian Schools,

;

Sullivan v. City of Pittsburgh, Pa.,

(3d Cir.

1987). Murphy arques that state law does not qive him this

opportunity because the only way that he could have obtained

judicial review of an adverse police commission rulinq is by

filinq a petition for writ of certiorari with the superior court.

He arques that this opportunity for judicial review is inadequate

because the court has discretion to reject his petition without

addressinq the merits of his constitutional claims.

In Fieqer v. Thomas,

(6th Cir. 1996), the Sixth

Circuit recently considered whether state law accordinq a federal

plaintiff a riqht to seek discretionary judicial review from an

adverse aqency decision is sufficient to satisfy Younger's

adequate opportunity requirement. There, an attorney faced

compulsory hearinqs before a state bar association disciplinary

board. The attorney claimed that the proceedinqs offered him an

inadequate forum to raise his constitutional challenqes, and

urqed the inapplicability of Younger abstention because state law

did not afford him an automatic state court appeal from the

-16- administrative proceedings. See Fieqer,

. The

court of appeals rejected both contentions.On the attorney's

first claim, the court stated,

Fieger has failed to demonstrate that members of the hearing panel and the Board, "the majority of whom are lawyers, would have refused to consider a claim that the rules which they were enforcing violated federal constitutional guarantees." . . . Even if the Board could not declare a Rule of Professional Conduct unconstitutional . . . [t]he Board could . . . refuse to enforce it or, perhaps, narrowly construe it. We are not convinced, therefore, that Fieger is unable to raise his constitutional claims in the disciplinary proceedings.

(guoting Middlesex County,

). The court also

rejected the attorney's second contention, noting instead that

"the ability to raise constitutional issues before the Board as

well as an opportunity to raise them again in a petition for

leave to appeal satisfies the third reguirement for Younger

abstention." Id. at 749; see also Hirsh v. Justices of Supreme

Court of California,

, 713 (9th Cir. 1995) (per

curiam) (holding that availability of discretionary judicial

review is sufficient to satisfy third Younger reguirement);

Beltran v. California,

(9th Cir. 1988)

(third Younger reguirement met when plaintiff has the opportunity

to present federal claims in a petition for a writ of review

-17- despite the fact that state court simply "denied the petition

without elaboration"); Martori Bros. Distribs. v. James-

Massenqale,

(9th Cir.) (discretionary

review of an administrative proceeding by an appellate court

affords a sufficient opportunity to raise federal constitutional

challenges to satisfy the third Younger reguirement), amended on

other grounds,

(9th Cir. 1986); Fresh Int'l Corp. v.

Agric. Labor Relations Bd.,

, 1362 (9th Cir. 1986)

(same).

I am persuaded by the reasoning of Fieqer that a federal

plaintiff has an adeguate opportunity to raise constitutional

claims in state court if the plaintiff has the right to present

his claims in a petition for discretionary review. Notwith­

standing Murphy's unsupported assertions to the contrary. New

Hampshire law permits an aggrieved party to raise constitutional

challenges in a certiorari petition. See Petition of

Preisendorfer,

(1998) (considering state constitu­

tional challenge). Accordingly, Murphy has been given an

adeguate opportunity to raise his constitutional claims during

the state proceedings.4

4 Garbrilowitz v. Newman,

, 101-02 (1st Cir. 1978) is inapposite. The court's opinion in that case was based

-18- D. The Bias Exception: No "Exceptional Circumstances" _____ are Present

After determining that the three primary requirements for

Younger abstention have been met in a given case, a federal court

ordinarily should abstain from acting on a complaint that would

interfere with ongoing state judicial proceedings. The Younger

abstention doctrine does not bar federal court action, however,

when the state proceedings are so tainted by personal interest or

prejudgment that the proceedings themselves violate plaintiff's

constitutional right to due process of law. See Gibson v.

Berrvhill,

(1973). Murphy argues that the

police department's disciplinary proceedings are tainted by

impermissible bias because (1) Chief Driscoll improperly

"commingled investigative, accusative and adjudicative

functions," Pl.'s Mem. at 13, by participating in the

investigation, signing the complaint, and serving as the final

decisionmaker reviewing the disciplinary board's findings and

recommendations; (2) board member Steinmetz was appointed in

violation of department regulations and is one of the

prosecutor's supervisors; and (3) the board received legal advice

in part on the fact that the plaintiff had no opportunity to obtain state court judicial review from an adverse adminis­ trative ruling. See 582 F.2d at 102. Thus, to the extent that Garbrilowitz remains good law, it is distinguishable.

-19- from the city solicitor's office, which in the past has

represented the city in litigation with the patrolman's

association. I address each argument in turn.

1. Chief Driscoll

The short answer to Murphy's bias claim against Chief

Driscoll is that the First Circuit has already rejected an

identical claim arising from indistinguishable facts. In

Brasslett v. Cota,

(1st Cir. 1985), a local

fire chief who had been discharged sued the town and the town

manager who fired him. The fire chief argued, among other

things, that the defendants violated his right to procedural due

process because the town manager both initiated the charge that

led to the dismissal and served as the final decisionmaker on the

charge after receiving a recommended disposition from the town's

appeals board. See

. In rejecting the fire

chief's procedural due process challenge, the court held that an

administrator may not be presumed to be constitutionally biased

merely because he or she issued both the initial discharge

decision and the final decision after a hearing before the

appeals board. See

; see also Withrow v. Larkin,

(1975). This holding plainly bars Murphy from

basing a bias claim solely on the structure of the disciplinary

-20- hearing process. Since Murphy has produced no evidence of bias

against Chief Driscoll other than the kind of "free-floating

invective, unanchored to specific facts" that the First Circuit

has elsewhere found to be insufficient. Brooks

, I

reject Murphy's claim that Driscoll was biased against him.

2. Lieutenant Steinmetz

Murphy's bias charge against Lieutenant Steinmetz fares no

better. The mere fact that Steinmetz supervises one of the

prosecutors charged with presenting evidence against Murphy does

not establish that he has an interest in the case or that he

prejudged the matter. Nor does it suggest improper bias if, as

Murphy claims, Steinmetz was appointed in violation of a

department regulation. Without some evidence that Steinmetz

either prejudged the case or had some kind of personal interest

in its outcome, Murphy's allegations simply are insufficient to

support a claim of bias.

3. City Solicitor

Murphy's suspicions that the city solicitor harbors a bias

against him because the solicitor's office previously represented

the city in litigation against the patrolman's association also

fails to support a viable bias claim. Murphy has cited no case

law to support his assertion that a city attorney is disabled

-21- from advising a disciplinary board considering charges against a

union official if the attorney has represented the city in other

litigation against the union. This argument is simply too

attenuated to support a claim of unconstitutional bias on the

part of either the city solicitor or the disciplinary board. I

thus reject Murphy's claim that exceptional circumstances are

present in this case that warrant an exception to the Younger

abstention doctrine.5

5 The exclusion of one of Murphy's attorneys from the administrative hearing also is not the kind of unusual circumstance that would warrant an exception to the Younger abstention doctrine. The police department's regulations give Murphy an adeguate opportunity to present his argument on this issue initially to the police commission and ultimately to a state court through a petition for writ of certiorari. See, e.g., Mann v. Jett,

(9th Cir. 1986) (per curiam) (applying Younger abstention to claim that defendant was being denied the assistance of counsel in a state criminal proceeding); Indiana v. Haws,

(7th Cir. 1997), cert, denied sub nom. In re Bisbee, 118 S. C t . 1803 (1998) .

-22- III. CONCLUSION

Because the tripartite test for Younger abstention has been

satisfied and no "exceptional circumstances" exist, I must

abstain from reaching the merits of this case. Accordingly,

Murphy's claims for injunctive relief are dismissed without

prejudice. His claims for damages are stayed pending the

resolution of state proceedings.6 See Kvricopoulos v. Town of

Orleans,

, 15-16 n.l (1st Cir. 1992) (noting that

"[a]s for § 1983 damages actions, it is appropriate to stay the

federal action pending the conclusion of the state . . .

proceedings") (emphasis in original). All other pending motions

6 The police department's regulations do not specify a time limit within which an appeal to the police commission must be taken. If Murphy has forfeited his right to review by unreasonably delaying his appeal, it is likely that his claims in this action will be barred by administrative res judicata. See, e.g., Morin v. J.H. Valliere Co.,

(1973). I decline to reach this issue now, however, because I cannot determine on the present record whether Murphy has forfeited his right to appeal.

-23- are denied.

SO ORDERED.

Paul Barbadoro Chief Judge

September 17, 1999

cc: Kenneth J. Gould, Esq. Frank Mondano, Esq. Mark Broth, Esq.

-24-