Pittman v. Cole, No. 00-15927

• Citation: 267 F.3d 1269,2001 WL 1167749
• Decision Date: 03 October 2001
• Docket Number: No. 00-15927
• Parties: (11th Cir. 2001) CRAIG PITTMAN, GREG SHAW, et al., Plaintiffs-Appellees, Cross-Appellants, v. RANDALL L. COLE, in his official capacity as Commissioner of the Alabama Judicial Inquiry Commission, NORMAN E. WALDROP, JR., et al., Defendants-Appellants, Cross-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1269

267 F.3d 1269 (11th Cir. 2001)

CRAIG PITTMAN, GREG SHAW, et al., Plaintiffs-Appellees, Cross-Appellants, v. RANDALL L. COLE, in his official capacity as Commissioner of the Alabama Judicial Inquiry Commission, NORMAN E. WALDROP, JR., et al., Defendants-Appellants, Cross-Appellees.

No. 00-15927

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

October 3, 2001

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Appeals from the United States District Court for the Southern District of Alabama, D.C. Docket No. 00-00865-CV-CB-L

Before CARNES and MARCUS, Circuit Judges, and PROPST^*, District Judge.

CARNES, Circuit Judge:

The plaintiffs in this case, three candidates for Alabama judgeships and the Christian Coalition of Alabama, brought this action seeking to enjoin the enforcement of advisory opinions promulgated by the Alabama Judicial Inquiry Commission ("JIC") and the Alabama State Bar's Office of General Counsel concerning whether judicial candidates could, without violating applicable ethics rules, respond to a questionnaire created by the Christian Coalition. The district court granted a preliminary injunction against enforcement of the policies and the related canons of ethics. See Pittman v. Cole, 117 F. Supp. 2d 1285, 1316-17 (S. D. Ala. 2000). However, the court declined to address whether there was a "substantial likelihood of success on the merits," and it abstained on the merits of the claims hoping that state courts would resolve unsettled questions of law. Id. at 1311-17.

The defendants have appealed contending that the district court erred in holding the plaintiffs' claims are justiciable and abused its discretion by entering the preliminary injunction, while the plaintiffs have cross-appealed contending the district court abused its discretion by abstaining from deciding the merits. For the reasons that follow, we vacate the district court's order and remand with instructions for it to dismiss Defendant J. Anthony McLain, the Bar's General Counsel, and to certify relevant unsettled questions of state law to the Alabama Supreme Court.

I. BACKGROUND

A. FACTS

Plaintiff Christian Coalition is a non-profit corporation that wanted to (and ultimately did) publish a voter guide before the November 7, 2000 general election informing voters about the views of Alabama judicial candidates. In order to obtain information for the voter guide, the Christian Coalition prepared a 30-item questionnaire and distributed it to all Alabama judicial candidates on August 30, 2000, with instructions that the completed questionnaire be returned by September 10, 2000. Plaintiffs Craig Pittman, Alice Martin, and Greg Shaw were candidates seeking election to judicial office in Alabama in the 2000 general election who received the Christian Coalition's questionnaire and desired to complete and return it.

The questionnaire asked judicial candidates to provide one-word answers to a series of questions on issues such as: whether birth control products should be dispensed in schools; whether a judge's religious beliefs should play a role in deciding cases; whether an unborn child is a human being with a soul from its creator; whether gambling should be legalized in Alabama; whether the candidate supported firearm registration and handgun control; whether marital benefits should be extended to domestic partners; whether the candidate supported constitutional amendments to permit prayer in schools and at school sporting events and to protect the flag; whether the Alabama Supreme Court had done an adequate job of preventing excessive punitive damage awards; and whether the future of the jury system was jeopardized by limitations on jury awards. Each of the thirty questions could be answered only in one of four ways: 1) Agree, 2) Disagree, 3) Undecided or 4) Decline.¹ The cover letter explained that any additional narrative or explanation provided by the candidate would be neither useful to, nor used by, the Christian Coalition in preparing its voter guide.

On September 8, 2000, the JIC issued Advisory Opinion 00-763 in response to inquiries by two sitting judges who were running for re-election in the 2000 general election (neither of whom is a plaintiff in this lawsuit) concerning whether the candidates could respond to the Christian Coalition questionnaire without violating the Alabama Canons of Judicial Ethics. The JIC, which is the body vested by the Alabama Constitution with authority to enforce the Canons of Judicial Ethics against Alabama judges, issued its advisory opinion pursuant to Rule 17 of the JIC's Rules of Procedure. That rule provides the JIC with authority to render advisory opinions to judges about whether a specified action would constitute a violation of the Canons of Judicial Ethics. The JIC's advisory opinions may be considered by any court, but they do not bind the Alabama courts in interpreting and applying the canons.²

In its advisory opinion, the JIC stated that some of the questions in the questionnaire violated Canon 2(A),³ some violated Canons 3(A)(1) and (6),⁴ and some violated Canon 7(B)(1)(c),⁵ but the opinion did not specify which questions violated which particular canons. The opinion also generally cautioned that candidates could not make statements "that would tend to embroil the judicial candidate in political debate." After taking note of the limited nature of the one-word answers the questionnaire insisted upon, the advisory opinion concluded that under the Canons of Judicial Ethics candidates could not answer any of the questions except by checking the box "Decline." The opinion did not discuss whether other, less constrained, forms of communications with respect to the issues covered in the questionnaire would violate the canons.

On September 11, 2000, a day after the deadline for responding to the Christian Coalition questionnaire, Gilbert Kendrick, an assistant general counsel in the Bar's Office of General Counsel, issued an informal advisory opinion in response to a confidential request from an attorney (who is not a party to this action) licensed to practice law in the State of Alabama. That informal opinion began by stating:

In response to your request, I am providing you the following which is an informal opinion of the Office of General Counsel and is not binding on the Disciplinary Commission of the Alabama State Bar.

The opinion noted that Rule 8.2 of the Bar's Rules of Professional Conduct provides that "[a] lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Alabama Canons of Judicial Ethics, and failure to so comply with [those canons] shall constitute a violation of this disciplinary rule."⁶ The advisory opinion stated that "most, if not all of the questions presented request you to make a promise of conduct in office or to announce in advance your conclusions of law on issues you would be called upon to decide as a judge" in violation of Canon 7(B)(1)(c). On that basis, Kendrick's informal advisory opinion concluded that attorneys are "ethically prohibited" from answering any "such questions."

The Bar notes that Kendrick's September 11, 2000 advisory opinion was not issued pursuant to Rule 18 of the Alabama Bar Association's Rules of Disciplinary Procedure, which provides:

If, before engaging in a particular course of conduct, a lawyer makes a full and fair disclosure, in writing, to the General Counsel, and receives therefrom a written opinion, concurred in by the Disciplinary Commission, that the proposed conduct is permissible, such conduct shall not be subject to disciplinary action.

None of the plaintiffs availed themselves of this administrative procedure for obtaining an official advisory opinions from the Disciplinary Commission of the Alabama State Bar before filing this lawsuit, nor have they since.

According to the plaintiffs, as a result of the advisory opinions issued by the JIC and the Bar's general counsel, several judicial candidates refused to answer the Christian Coalition's questionnaire at all, despite their expressed desire to do so. Several other judicial candidates who had answered the questionnaire requested that the Christian Coalition not publish the answers they had given. After the advisory opinions were issued, the Christian Coalition voluntarily chose to eliminate fifteen of the thirty questions from its questionnaire, but neither the JIC nor the Bar were asked to reconsider the advisory opinions in light of this revision.

B. PROCEDURAL HISTORY

On September 26, 2000, the plaintiffs filed this action under 42 U.S.C. § 1983 raising claims under the First and Fourteenth Amendments. They sought a declaration that the state's "enforcement policies," embodied in the twoadvisory opinions, were overbroad in violation of the First Amendment, and an injunction against enforcement of those policies. The lawsuit originally named as defendants all but one of the members of the JIC in their official capacities; Anthony McClain, the general counsel of the Bar, in his official capacity; and each of the members of the Bar's Disciplinary Commission in their official capacities. The plaintiffs eventually agreed to dismiss each of the Bar Disciplinary Commission members as defendants. Judge John Crawley, the one JIC member who was not named as a defendant, was permitted to intervene as a plaintiff. Each of the defendants moved to dismiss the case.

On October 10, 2000, the district court held a hearing on the plaintiffs' preliminary injunction motion. One week later, the court issued its order denying the defendants' motions to dismiss, granting a preliminary injunction, and abstaining from reaching the merits. The court enjoined the defendants:

[F]rom enforcing or attempting to enforce the JIC and/or [Bar] Advisory Opinions, or Alabama Canons of Judicial Ethics, against the Plaintiffs, for responding to, and/or receiving and publishing the...