113 F.3d 1234 (6th Cir. 1997), 96-3186, Harper v. Office of Disciplinary Counsel, Supreme Court of Ohio

Docket Nº:96-3186.
Citation:113 F.3d 1234
Party Name:Sara J. HARPER, Plaintiff-Appellant, v. OFFICE OF DISCIPLINARY COUNSEL, SUPREME COURT OF OHIO, et al., Defendants-Appellees.
Case Date:May 02, 1997
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1234

113 F.3d 1234 (6th Cir. 1997)

Sara J. HARPER, Plaintiff-Appellant,



No. 96-3186.

United States Court of Appeals, Sixth Circuit

May 2, 1997

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

On Appeal from the United States District Court for the Northern District of Ohio, No. 96-00087; Sam H. Bell, Judge.



Before: SILER, COLE, and Van GRAAFEILAND, [*] Circuit Judges.


Plaintiff appeals the district court's dismissal of her complaint seeking to restrain and enjoin Defendants from conducting disciplinary proceedings against her for violating Ohio's Code of Judicial Conduct. For the reasons that follow, we AFFIRM the decision of the district court.


At all times relevant to this appeal, Plaintiff-Appellant Sara J. Harper ("Harper") served as a judge on the Ohio Court of Appeals for the Eighth Appellate District. Accordingly, she was subject at all such times to Ohio's Code of Judicial Conduct.

In 1994, Harper ran against incumbent Justice Alice Robie Resnick for a seat on the Supreme Court of Ohio. In one of her campaign commercials, Harper noted that Resnick had received substantial financial contributions from various trial lawyers and suggested that Resnick would necessarily be beholden to them in deciding issues before the Ohio Supreme Court. 1

On May 1, 1995, the Ohio Supreme Court's Office of Disciplinary Counsel ("Office of Disciplinary Counsel") submitted a formal complaint against Harper to the Board of Commissioners on Grievances and Discipline ("Board of Commissioners"). 2 This complaint charged Harper with violating five provisions of the Ohio Code of Judicial Conduct, including (1) Canon 2A, for failing to conduct herself so as to promote public confidence in the integrity and impartiality of the judiciary; and (2) Canon 7B(1)(a), for failing to maintain the dignity appropriate to judicial office. 3 On November 22, 1995, Harper filed a motion for summary judgment with the Board of Commissioners. On January 11, 1996, the Board of Commissioners denied her motion, and scheduled a full hearing on the complaint against Harper for January 18-19, 1996.

On January 16, 1996, Harper filed the present suit in the United States District Court for the Northern District of Ohio to enjoin the disciplinary proceedings against her. In her complaint, Harper contended that Canons 2A and 7B(1)(a) of the Ohio Code of Judicial Conduct could not be enforced against her because they violate her First Amendment right to freedom of speech and her Fourteenth Amendment right to due process. On January 19, 1996, Harper amended her original complaint to include as defendants the individual members of the Board of Commissioners and the Office of Disciplinary Counsel. After receiving the briefs of the parties and entertaining oral argument, the district court determined on January 24, 1996 that it would abstain from interfering in Harper's pending disciplinary proceedings and dismissed her complaint. 4

Harper has timely appealed the district court's decision.


We review de novo a district court's decision to abstain from hearing a plaintiff's complaint. Fieger v. Thomas, 74 F.3d 740, 743 (6th Cir.1996); Berger v. Cuyahoga County Bar Ass'n, 983 F.2d 718, 721 (6th Cir.1993).


The United States Supreme Court has established a three-part test for determining whether a federal court should abstain from interfering in a state's bar disciplinary proceeding. See Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982) (citing Younger v. Harris, 401 U.S. 37 (1971)). Specifically, a federal court should abstain if:

(1) the bar disciplinary proceeding is currently ongoing;

(2) this proceeding implicates an important state interest; and

(3) the disciplinary proceeding provides an adequate opportunity for the respondent to raise constitutional challenges.

See Middlesex, 457 U.S. at 432, 433-35; Younger, 401 U.S. at 43-55. Nevertheless, the Supreme Court has noted that "extraordinary circumstances" could exist which would permit a district court to exercise jurisdiction in a case even though the three prongs of the test are satisfied. Middlesex, 457 U.S. at 435; Younger, 401 U.S. at 53. For example, a federal court can exercise jurisdiction over a case if the state rules at issue are "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." See Younger, 401 U.S. at 53-54 (citation and quotations omitted)...

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