Aaron v. O'Connor

• Decision Date: 30 January 2019
• Docket Number: No. 18-3452,18-3452
• Parties: Frieda AARON, et al., Plaintiffs-Appellants, v. Maureen O’CONNOR and Mark R. Schweikert, in their Official Capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

914 F.3d 1010

Frieda AARON, et al., Plaintiffs-Appellants,

v.Maureen O’CONNOR and Mark R. Schweikert, in their Official Capacities, Defendants-Appellees.

No. 18-3452

United States Court of Appeals, Sixth Circuit.

Decided and Filed: January 30, 2019

ON BRIEF: Robert A. Winter, Jr., Fort Mitchell, Kentucky, for Appellants. Nicole M. Koppitch, Steven T. Voigt, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee O’Connor. Lawrence E. Barbiere, Katherine L. Barbiere, SCHROEDER, MAUNDRELL, BARBIERE & POWERS, Mason, Ohio, for Appellee Schweikert.

Before: MERRITT, GUY, and MOORE, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge.

A large group of plaintiffs brought medical malpractice claims in Ohio state court against a doctor who operated on them and against several hospitals where he worked. The plaintiffs allege that the judge presiding over their case, Judge Mark R. Schweikert, and Chief Justice Maureen O’Connor of the Ohio Supreme Court were biased against their claims. In accordance with Ohio law, they filed affidavits of disqualification against Judge Schweikert, and requested that Chief Justice O’Connor recuse herself from deciding Judge Schweikert’s disqualification. Soon thereafter, they filed the instant suit in the United States District Court for the Southern District of Ohio, asking that the court enjoin Chief Justice O’Connor from ruling on the affidavit of disqualification pertaining to Judge Schweikert and enjoin Judge Schweikert from taking any action in their cases before the affidavit of disqualification was ruled upon. Because the Younger abstention doctrine applies to this situation, we AFFIRM the district court’s decision to abstain from hearing the plaintiffs’ claims and dismiss the case. However, we REMAND so that the district court can amend its order to dismiss the case without prejudice.

I. BACKGROUND

The plaintiffs, former patients who underwent back surgery with Dr. Abubakar Atiq Durrani, M.D., brought suit in Ohio state courts against Durrani and several hospitals in the Cincinnati area seeking tort damages for medical malpractice. R. 1 (Compl. at 7) (Page ID #7). Numerous cases, involving over 500 plaintiffs, have been litigated for over five years in state courts before several judges. Id . at 1, 7, 20–25 (Page ID #1, 7, 20–25). The plaintiffs allege that Justice Maureen O’Connor, the Chief Justice of the Supreme Court of Ohio, eventually appointed Judge Mark R. Schweikert, a Hamilton County Court of Common Pleas Judge, to oversee the Durrani cases. Appellants Br. at 4; R. 1 (Compl. at 15, 35) (Page ID #15, 35). The plaintiffs’ complaint expresses their disagreement with several of Judge Schweikert’s decisions regarding the litigation and alleges that Chief Justice O’Connor "has informed and does inform Judge Mark Schweikert how to rule on issues before him and he has followed her orders." Id . at 25 (Page ID #25). Due to their perception that Judge Schweikert and Chief Justice O’Connor were biased against them and that that bias was impacting the litigation, on December 15, 2017, the plaintiffs’ counsel filed an "Affidavit of Disqualification of Chief Justice Maureen O’Connor and Judge Mark Schweikert" with the Clerk of the Supreme Court of Ohio. R. 1-1 (Aff. of Disqualification) (Page ID #55). The affidavit alleged that Chief Justice O’Connor and Judge Schweikert have "a bias and a prejudice against Plaintiffs and their claims." Id . (Page ID #56).

Ohio Revised Code § 2701.03 provides for the disqualification of the judge assigned to a state-court case in certain circumstances. "If a judge of the court of common pleas ... allegedly is related to or has a bias or prejudice for or against a party to a proceeding pending before the court ... the party’s counsel may file an affidavit of disqualification with the clerk of the supreme court." OHIO REV. CODE § 2701.03(A). The affidavit must include "specific allegations on which the claim of interest, bias, prejudice, or disqualification is based and the facts to support each of those allegations." OHIO REV. CODE § 2701.03(B)(1). Filing of the affidavit "deprives the judge against whom the affidavit was filed of any authority to preside in the proceeding until the chief justice of the supreme court, or a justice of the supreme court designated by the chief justice, rules on the affidavit." OHIO REV. CODE § 2701.03(D)(1).

The plaintiffs’ affidavit of disqualification also argued that Chief Justice O’Connor should not be permitted to decide Judge Schweikert’s disqualification because of the plaintiffs’ allegation that she herself is biased against them. Ohio Supreme Court Rule of Practice § 4.04 provides for the disqualification and recusal of state supreme court justices in certain circumstances.¹ Section 4.04(B)(1) provides that "[a] party to a case pending before the [Ohio] Supreme Court ... may request the recusal of a justice by filing a request with the Clerk of the [Ohio] Supreme Court." The request must be supported by an affidavit explaining why the recusal is requested and including factual support. Ohio S. Ct. Prac. R. § 4.04(B)(1). Then, "[t]he justice named in the request shall submit a written response to the Clerk indicating whether the justice will recuse from the case." The Clerk shall provide the parties with the response. Ohio S. Ct. Prac. R. § 4.04(C).

On December 18, 2017, three days after filing their affidavit with the Clerk of the Supreme Court of Ohio, the plaintiffs filed suit against Chief Justice O’Connor and Judge Schweikert in federal district court alleging due process violations under 42 U.S.C. § 1983. They sought an injunction preventing Chief Justice O’Connor from ruling on their earlier-filed affidavit of disqualification and preventing Judge Schweikert "from taking any action on their cases" before the affidavit of disqualification is ruled upon. R. 1 (Compl. at 2) (Page ID #2). It appears that the injunction that the plaintiffs sought against Judge Schweikert merely asked the federal district court to enjoin him from violating Ohio Revised Code § 2701.03(D)(1), which deprived him of authority to continue presiding over the state case until the affidavit of disqualification was ruled upon. The Supreme Court of Ohio appears to have sought to comply with Ohio Revised Code § 2701.03(D)(1) by issuing its December 20, 2017 letter to Judge Schweikert informing him of the affidavit that had been filed seeking his disqualification and instructing that "no further judicial rulings should be made by [him] until the affidavit has been ruled on by Chief Justice Maureen O’Connor or a justice of the Ohio Supreme Court designated by the chief justice ...." R. 29-1 (Page ID #1554).

On December 27, 2017, the district court informed the parties that it intended to rule on the preliminary issue of abstention under Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), before addressing the merits of the complaint. R. 34 (Op. and Order) (Page ID #1755). Accordingly, the parties briefed the court on whether Younger abstention applies and the court heard oral arguments on the issue. Id . On January 26, 2018, the district court held that Younger abstention applied and dismissed the federal case with prejudice. Id . at 10 (Page ID #1764). The plaintiffs moved to alter or amend the judgment of the district court. R. 36 (Pl. Mot. to Alter or Amend) (Page ID #1766). The district court denied the plaintiffs’ motion to alter or amend its judgment on April 13, 2018. R. 47 (Order) (Page ID #2090). Plaintiffs then timely filed their notice of appeal. R. 48 (Notice of Appeal) (Page ID #2093).

During the pendency of their federal suit, the plaintiffs filed in state court additional affidavits of disqualification against Judge Schweikert. O’Connor Br. at 5. After the district court’s original dismissal of the case, Chief Justice O’Connor denied the plaintiffs’ affidavits of disqualification on February 5, 2018. Schweikert Br. at 3. The plaintiffs then filed additional affidavits seeking the disqualification of Judge Schweikert. Schweikert Br. at 3. On February 26, 2018, Chief Justice O’Connor denied those additional affidavits of disqualification. Id .

II. DISCUSSION

A. Standard of Review

We review de novo the district court’s judgment abstaining from hearing a case under the Younger doctrine. Doe v. Univ. of Kentucky , 860 F.3d 365, 368 (6th Cir. 2017).

B. Mootness

Defendant Schweikert argues that the plaintiffs’ claims are moot because "[s]ince the filing of their Motion for injunctive relief, Chief Justice O’Connor has ruled upon, and summarily dismissed, seventeen Affidavits of Disqualification filed by Plaintiffs’ [sic] against Judge Schweikert and Judge Schweikert is currently presiding over the underlying medical malpractice actions involving the Plaintiffs." Schweikert Br. at 20. We address mootness before we address Younger abstention because mootness is a jurisdictional issue. See Rettig v. Kent City Sch. Dist. , 788 F.2d 328, 330 (6th Cir. 1986). If a case is moot, the "case or controversy" requirement of Article III of the Constitution is not satisfied and we do not have jurisdiction to hear the case. Id . The abstention doctrines, however, assume jurisdiction but decline to exercise it in limited circumstances. See, e.g., Sprint Commc’ns, Inc. v. Jacobs , 571 U.S. 69, 72, 134 S.Ct. 584, 187 L.Ed.2d 505 (2013).

"[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome." Cty. of Los Angeles v. Davis , 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack , 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) ). The plaintiffs argue that the case should not be considered moot because it falls under an exception that allows for judicial review when "the challenged activity is capable of repetition, yet evading review." Reply Br. at 7–9 (quoting Lawrence v. Blackwell , 430 F.3d 368, 371 (6th Cir. 2005), cert....