                                                                                  [PUBLISH]

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               IN THE UNITED STATES COURT OF APPEALS
                                                                              FILED
                          FOR THE ELEVENTH CIRCUIT                   U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                           MAR 27, 2001
                         -------------------------------------------
                                                                        THOMAS K. KAHN
                                      No. 00-14137                           CLERK
                        --------------------------------------------
                        D. C. Docket No. 00-00976 CV-D-N



ROBERT BUTLER,
W. THOMAS GAITHER, et al.,

                                                          Plaintiffs-Appellees,

     versus

THE ALABAMA JUDICIAL INQUIRY COMMISSION,
RANDALL L. COLE, in his official capacity, et al.,

                                                          Defendants-Appellants.


               ----------------------------------------------------------------
                    Appeal from the United States District Court
                          for the Middle District of Alabama
               ----------------------------------------------------------------
                                    (March 27, 2001)


Before EDMONDSON, HILL and GIBSON*, Circuit Judges.
_______________

*    Honorable John R. Gibson, U.S. Circuit Judge for the Eighth Circuit, sitting by
     designation.
EDMONDSON, Circuit Judge:

       The Constitution of the United States of America is the supreme law of this

country. Both state courts and federal courts have the authority and the duty to

enforce the federal Constitution. This case is one in which the federal courts were

invited to become involved in a controversy that was already before a state court

and also invited to stop the state court proceeding. So, questions of federalism and

abstention are presented.

       Justice Harold See, an Associate Justice of the Alabama Supreme Court,

attacks a state judicial canon adopted and approved by the state supreme court. He

has asked a federal court to declare the canon invalid under the federal

Constitution.1 Because great concerns of comity and federalism tower over this

case, we must proceed cautiously. As federal judges, we will interfere with the

state proceeding only if it is clear to us that the state forum is inadequate to hear

Justice See’s challenges based on the United States Constitution. Because we, at

this time, are uncertain about the adequacy of the state forum, we are glad to ask

the Supreme Court of Alabama to explain some Alabama law to us. See Lehman

Bros. v. Schein, 94 S. Ct. 1741, 1745 (1974) (Rehnquist, J., concurring)

   1
     Two other Plaintiffs, W. Thomas Gaither, a former Alabama district and circuit judge, and
Ronald Butler, a citizen and voter, also are parties to this suit. The district judge, however,
failed to rule on the issue of standing for these two Plaintiffs. Accordingly, we will not consider
their status in this appeal.

                                                 2
(suggesting certification appropriate in “unusual circumstances [that] require a

federal court having jurisdiction of an action to nonetheless abstain from deciding

doubtful questions of state law”).



                                           I.



       The state of Alabama has developed a comprehensive system to regulate its

elected judicial officials.

       The Alabama Constitution charges the state’s highest court with the

responsibility of developing and implementing the ethical rules that govern state

judges. Ala. Const. of 1901, amend. 328, §6.08(c). On 1 January 1998, the

Alabama Supreme Court adopted Canon 7(B)(2). Canon 7(B)(2) restricts

candidates’ behavior in judicial elections by prohibiting publication of false

information and information that is true but “would be deceiving or misleading to a

reasonable person.” The Supreme Court approved the rule by an eight to one vote;

only Justice See voted against the rule.

       The Alabama Constitution vests enforcement of the state’s Canons of




                                           3
Judicial Ethics in the Judicial Inquiry Committee (“JIC”).2 If a majority of the JIC

determines that a reasonable basis for an ethics violation exists, the JIC may file a

complaint with the Court of the Judiciary.3 Ala. Const. of 1901, amend. 581,

§6.17(b). Once a complaint is filed, a charged judge is temporarily disqualified

from judging until the Court of the Judiciary rules on the complaint; in the

meantime, the pertinent judge draws his pay. Ala. Const. of 1901, amend. 328,

§6.19 (“A judge shall be disqualified from acting as a judge, without loss of salary,

while there is pending . . . (2) a complaint against him filed by the judicial inquiry

commission with the court of the judiciary.”).

       As we understand Alabama law, the Court of the Judiciary is a court of

limited jurisdiction that operates much like other state trial courts. The court has

authority to hear complaints filed by the JIC and may discipline a judge for



   2
     Under the Alabama Constitution, the JIC consists of one appellate judge appointed by the
Supreme Court, two circuit court judges appointed by the Circuit Judges’ Association, three non-
lawyers appointed by the Governor and confirmed by the Senate, one district judge appointed by
the Lieutenant Governor and confirmed by the Senate, and two members of the state bar
appointed by the governing body of the Alabama State Bar. Ala. Const. of 1901, amend. 581,
§6.17(a).
   3
     Under the Alabama Constitution, the Court of the Judiciary consists of one appellate judge
appointed by the Supreme Court who serves as Chief Judge, two circuit court judges selected by
the Circuit Judges’ Association, two non-lawyers appointed by the Governor and confirmed by
the Senate, one non-lawyer appointed by the Lieutenant Governor and confirmed by the Senate,
one district judge selected by the District Judges’ Association, and two members of the state bar
selected by the governing body of the Alabama State Bar. Ala. Const. of 1901, amend. 581,
§6.18(a).

                                                4
violating a Canon of Judicial Ethics.4 Pursuant to its power under the Alabama

Constitution, the Supreme Court has adopted the rules governing the Court of the

Judiciary. See Ala. Const. of 1901, amend. 581, §6.18(c). The general rules of

civil procedure and evidence apply, unless otherwise provided. Ala. Ct. of the Jud.

R. of Proc. 10. Appeal from the Court of the Judiciary is directly to the state

supreme court. Ala. Const. of 1910, amend. 581, §6.18(b).

       During his campaign for Chief Justice of the Alabama Supreme Court,

Justice See made comments about another candidate’s record. The comments are

alleged to have violated Canon 7(B)(2) and Canon 2(A). A majority of the JIC

agreed that a reasonable basis existed to charge Justice See with violating the

judicial code. The JIC filed a 3-count complaint against Justice See in the Court of

the Judiciary. Pursuant to the Alabama Constitution, Justice See was immediately

disqualified from judicial work until the court decided his case.

       Justice See made no response to the complaint filed against him with the

Court of the Judiciary. Instead, Justice See, three days later, filed a complaint

against the JIC in the United States District Court in the Middle District of

Alabama. He alleged that the pertinent state judicial canons (both facially and as



   4
    The discipline may include removal from office, suspension without pay, or censure. Ala.
Const. of 1901, amend. 581, §6.18(a).

                                              5
applied) violated the First and Fourteenth Amendments of the United States

Constitution. He also sought a temporary restraining order and preliminary

injunction preventing the enforcement of the canons against him and returning him

to an active position on the state supreme court. The JIC countered with a motion

to dismiss based on abstention principles. The district court granted the TRO and

preliminary injunction and denied the motion to dismiss. The federal court order

enjoined the JIC from enforcing Canon 7(B)(2) and from prosecuting the

complaint against Justice See. The district court also prevented the JIC from

interfering with Justice See’s work on the state supreme court.



                                          II.



      The district court’s injunction of the ongoing state ethical proceedings raises

questions under Younger v. Harris, 91 S. Ct. 746 (1971). Younger and its progeny

reflect the longstanding national public policy, based on principles of comity and

federalism, of allowing state courts to try cases -- already pending in state court --

free from federal court interference. 91 S. Ct. at 750. In general, the law on this

point is clearly established. See, e.g., Quackenbush v. Allstate Ins. Co., 116 S. Ct.

1712, 1724 (1996); Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 106


                                           6
S. Ct. 2718, 2722 (1986); Old Republic Union Ins. Ct. v. Tills Trucking Co., Inc.,

124 F.3d 1258, 1263 (11th Cir. 1997). As the Court recognized in Younger, “the

normal thing to do when federal courts are asked to enjoin pending proceedings in

state courts is not to issue such injunctions.” Id. at 751.

      The Supreme Court also has addressed already the Younger doctrine in the

context of state disciplinary proceedings, saying that “[t]he importance of the state

interest in the pending state judicial proceedings and in the federal case calls

Younger abstention into play.” Middlesex County Ethics Comm. v. Garden State

Bar Assoc., 102 S. Ct. 2515, 2522-23 (1982). Middlesex sets out three

benchmarks to guide the application of abstention: “first, do state bar disciplinary

hearings within the constitutionally prescribed jurisdiction of the State Supreme

Court constitute an ongoing state judicial proceeding; second, do the proceedings

implicate important state interests; and third, is there an adequate opportunity in

the state proceedings to raise constitutional challenges.” Id. at 2521 (emphasis in

original).

      The district court concluded, and the parties do not dispute, that the first two

elements are satisfied here. The parties disagree, however, about whether the state

proceedings in the Court of the Judiciary provide an adequate opportunity for

Justice See to raise his federal constitutional challenges. If the state forum is an


                                           7
adequate one in which Justice See may raise his constitutional challenge, then

federal courts must abstain.

       Justice See bears the burden to establish that the state procedures are

inadequate. Pennzoil Co. v. Texaco, Inc., 107 S. Ct. 1519, 1528 (1987). “Minimal

respect for the state processes, of course, precludes any presumption that the state

courts will not safeguard federal constitutional rights.” Middlesex County, 102 S.

Ct. at 2521 (emphasis in original). See also Texaco, 107 S. Ct. at 1528 (“[W]hen a

litigant has not attempted to present his federal claims in related state-court

proceedings, a federal court should assume that state procedures will afford an

adequate remedy, in the absence of unambiguous authority to the contrary.”).

       As the Supreme Court has advised, the “pertinent inquiry is whether the state

proceedings afford an adequate opportunity to raise the constitutional claims. . . .”

Middlesex County, 102 S. Ct. at 2521, quoting Moore v. Sims, 99 S. Ct. 2371,

2380 (1979). In the present case, the district court concluded that no adequate state

forum existed in which Justice See might raise his constitutional challenges. The

district court also questioned the ability of the Alabama judicial system to consider

objectively the merits of this dispute.5

   5
     The district court opined that a lower state court like the Court of the Judiciary would
probably not strike down an ethics canon recently adopted by the state supreme court, that the
four members of the state supreme court who approved the ethics rule would be unable to
evaluate objectively the constitutional implications of that rule, and that all supreme court judges

                                                 8
       Middlesex County provides a useful analogy to this case. In that case, a

lawyer was charged with violating New Jersey ethics rules. The New Jersey ethics

system operated much like the Alabama system: the state supreme court adopted

the ethics rules; the ethics committee, composed of attorneys and non-attorneys,

reviewed complaints, made a recommendation, and referred the case to a

disciplinary review board for a decision; and review of the board’s decision was to

the New Jersey Supreme Court.

       The Middlesex lawyer made no response to the state proceedings. Instead,

the lawyer filed an action in federal court challenging the disciplinary rules as

violative of the First Amendment. The district court dismissed based on Younger,

and the Supreme Court affirmed. In concluding that adequate opportunity existed

for the plaintiff to raise his challenges in the New Jersey court system, the Supreme

Court noted the “unique relationship” shared between the state supreme court and

the ethics committee. Id. at 2523. Unlike the case here, however, the Supreme

Court in Middlesex also had actual evidence that an adequate forum existed: before

the Supreme Court’s decision, the New Jersey Supreme Court had sua sponte

considered and resolved the constitutional issue raised by the ethics charge.




would presumably be recused from hearing See’s challenge. We accept none of these
observations as a basis to decline to abstain.

                                             9
      Like the plaintiff in Middlesex, Justice See failed to respond to the

complaint filed by the JIC and failed even to attempt to raise a federal

constitutional challenge in the state proceedings. See Middlesex County, 102 S.

Ct. at 2523. Also, Justice See points to nothing that now convinces us that the

Court of the Judiciary could not have considered constitutional challenges to the

rules they were charged with enforcing. As in Middlesex, the unique relationship

between the Alabama Supreme Court and the Court of the Judiciary leads us to

believe that an adequate state forum might exist to consider Justice See’s

constitutional claims.

      Justice See argues that because the Court of the Judiciary is a court of

limited jurisdiction, it cannot adjudicate federal constitutional issues. He relies on

a line of Alabama cases that say probate courts, as courts of limited jurisdiction,

cannot consider constitutional issues. See Docena Fire Dist. v. Rucker, 564 So. 2d

422, 424 (Ala. 1990). Perhaps the reasoning of these cases may be extended to

prevent the Court of the Judiciary from considering constitutional issues. To

define the Court of the Judiciary’s power in this way, however, would be not to

follow existing Alabama law, but to extend the existing Alabama case law; an

extension that we are slow to make without seeking guidance from Alabama. And

we observe that the Alabama Supreme Court has signaled that parties may possibly


                                          10
be able to raise constitutional issues in the Court of the Judiciary. See Boggan v.

Judicial Inquiry Comm’n, 759 So. 2d 550, 552 (Ala. 1999) (concluding that judge

waived state constitutional challenges by not raising them at Court of the Judiciary,

but then considering merits of constitutional challenge).

       And even if the Court of the Judiciary itself cannot decide federal

constitutional questions, maybe the procedural law governing the Court of the

Judiciary will allow litigants the opportunity to seek, in the state supreme court,

interlocutory review from certain orders.6 See generally Ohio Civil Rights

Comm’n, 106 S. Ct. at 2724 (“It is sufficient . . . that constitutional claims may be

raised in state-court judicial review of the administrative proceeding.”). Because

the Alabama Rules of Civil Procedure seem to apply to Court of the Judiciary

proceedings, perhaps Justice See could have moved to dismiss the case in the Court

of the Judiciary based on his constitutional objections to the charges. See Ala. R.

   6
     We recognize that resolving Justice See’s constitutional challenges speedily is an important
consideration in this case. See Gibson v. Berryhill, 93 S. Ct. 1689, 1697 (1973) (Younger
abstention “presupposes the opportunity to raise and have timely decided by a competent state
tribunal the federal issues involved”). And while we will not establish a particular time in which
the challenges must be resolved, we observe that the availability of an interlocutory appeal, as
opposed to an appeal after final judgment in the Court of the Judiciary, might be important in
assessing the adequacy of state remedies.
        We also note that by seeking relief in federal court, instead of litigating in the state court,
Justice See has delayed resolution of his state case. While we are unaware of the promptness
with which Alabama would have been able to resolve Justice See’s constitutional challenges in
the state proceeding, we observe that claims and appeals in the federal system unfortunately can
also take a long time to resolve. Coming to federal court may not be the quickest procedure to
resolve federal constitutional questions about state law.

                                                  11
Civ. Proc. 12 & Ala. R. Civ. Proc. 56. Interlocutory review might be available; so

even if the Court of Judiciary denied the motion or refused to consider the

constitutional challenges, the Alabama Supreme Court might be able to address the

challenges through interlocutory appeal. Ala. R. App. Proc. 5(a); see also Ala. R.

App. Proc. 21(a) (mandamus review). Either the Court of the Judiciary or the

Alabama Supreme Court may possibly also be able to issue a stay of Justice See’s

disqualification pending appeal. See Ala. R. Civ. Proc. 62; Ala. R. App. Proc. 8.

These thoughts are just some ways in which Justice See perhaps could have raised

his constitutional challenges in the already commenced state proceeding. At this

point, we are speculating some. Without definitive Alabama law on this issue, we

cannot be sure.

      That certain members of the Alabama Supreme Court once approved the

judicial canons now in dispute means little to us. We feel confident that a state

supreme court can adequately consider the merits of federal constitutional

challenges to the judicial canons that the state supreme court passed. See, e.g.,

Middlesex County, 102 S. Ct. at 2523 (recognizing that New Jersey Supreme Court

properly considered constitutionality of ethics rule approved by state supreme

court); In re Chmura, 608 N.W. 2d 31 (Mich. 2000) (state supreme court reviewing

constitutionality of judicial canon passed by state supreme court five years earlier).


                                          12
And if certain individual justices decide that they cannot objectively consider the

constitutionality of the judicial canons or should, for some other reason, not

participate in the decision of Justice See’s challenges, Alabama law permits

justices to recuse themselves in such situations. See Ala. Canons of Jud. Ethics,

Canon 3C. We stress that a previous decision or act by a state supreme court on a

certain issue does not necessarily make an otherwise adequate forum inadequate.

See Tills Trucking Co., 124 F.3d at 1263 (concluding that adverse state supreme

court decision does not deprive party of adequate opportunity to raise

constitutional challenge).

       If the procedural laws governing the Court of the Judiciary permit a

reasonably speedy review of federal constitutional issues, either before the Court of

Judiciary itself or through review by a higher state court, then the federal court

must defer to the state process.7



                                               III.



       Justice See contends that even where state remedies are available, federal

   7
     Even if we decide to abstain and to allow Alabama courts to adjudicate Justice See’s
constitutional claims, ultimate review still rests with the United States Supreme Court, which has
the final word on the United States Constitution. The United States Supreme Court can hear an
appeal from either the Alabama Supreme Court or from this court.

                                               13
intervention is warranted when the plaintiff makes a showing of irreparable injury.

Irreparable injury exists if the challenged provision is “flagrantly and patently

violative of express constitutional prohibitions” or if “unusual circumstances

[exist] that would call for equitable relief.” Younger, 91 S. Ct. at 755.

       The post of Justice of the Supreme Court of Alabama is not merely a job to

which some person might have a right as personal property. Under the law, it is a

state office provided by the people of Alabama, provided not for the benefit of the

officeholder, but as a public necessity and a means of public service for those

persons fortunate enough to be entrusted temporarily with it. Most important, the

duties of that office are defined by Alabama law. Justice See, having been charged

by a majority of the JIC with an ethics violation during campaigning, has been

temporarily disqualified from working at his elected position pending the outcome

of the investigation.8 A temporary disqualification seems to be demanded by the

words of the state constitution, a constitution which Alabama judges -- including

Justice See, as an officer of the court -- have sworn to uphold. And even though

Justice See might be currently unable to serve through work, the people of

Alabama who elected Justice See have collectively spoken through their

constitution, which seems to require disqualification in this situation. In the light


   8
    Justice See, pursuant to the district court’s order, is actually working.

                                                 14
of the state’s law, his legal duty now as a state judge might well be not to work, but

to step back and to wait while the state’s processes act on his case. Based on these

legal facts, we do not think that Justice See nor the citizens of Alabama are

suffering irreparable injury sufficient to justify immediate intervention by the

federal courts.

      Also, while we today make no decision about the constitutionality of

Alabama’s judicial canons, we doubt that Canon 7(B)(2) patently or fragrantly

violates the Constitution “in every clause, sentence, and paragraph, and in

whatever manner and against whomever an effort might be made to apply it.”

Younger, 91 S. Ct. at 755. We recognize the importance of protecting political

speech, but as the Supreme Court has noted, “the existence of a ‘chilling effect,’

even in the area of First Amendment rights, has never been considered a sufficient

basis, in and of itself, for prohibiting state action.” Younger, 91 S. Ct. at 754.

Given the preexisting state proceeding, any federal constitutional problems that

Alabama’s judicial canons present should be addressed and resolved by the

Alabama court system if that system can do it.



                                          IV.




                                          15
      Because we can properly intervene in a state judicial proceeding only when

we are convinced that the state forum is inadequate and because we are, for now,

uncertain about the adequacy of the state forum for Justice See’s federal

constitutional challenges, we certify to the Alabama Supreme Court these

controlling questions for review:



A.    IN A PROCEEDING BEFORE THE ALABAMA COURT OF THE

      JUDICIARY, CAN A DEFENDANT RAISE AND HAVE DECIDED A

      CONSTITUTIONAL CHALLENGE TO A JUDICIAL CANON,

      EITHER AT THE COURT OF THE JUDICIARY OR THROUGH

      DIRECT REVIEW TO THE SUPREME COURT OR BY OTHER

      MEANS?



B.    IF SO, HOW DO THE PROCEDURAL RULES GOVERNING THE

      COURT OF THE JUDICIARY PERMIT A REASONABLY SPEEDY

      DECISION ON FEDERAL CONSTITUTIONAL ISSUES?



C.    IN A PROCEEDING BEFORE THE ALABAMA COURT OF THE

      JUDICIARY, CAN THAT COURT OR A HIGHER COURT GRANT,


                                         16
      IN THAT PROCEEDING, A STAY OF THE JUDGE’S

      DISQUALIFICATION PENDING THE OUTCOME OF THAT

      PROCEEDING OR THE OUTCOME OF THE FEDERAL

      CONSTITUTIONAL CHALLENGE POSED IN THAT

      PROCEEDING?

      Our phrasing of these certified questions is meant to restrict, in no way, the

Alabama Supreme Court’s response to the questions or its analysis of the state law

problems posed by this case. See City of Marietta v. CSX Transp., Inc., 196 F.3d

1300, 1309 (11th Cir. 1999); Edmonds v. Bronner 864 F.2d 752, 753-54 (11th Cir.

1989). We seek clarification, in the light of what we have written today, of the

applicable state law; and the questions are a guide. The more information that the

state supreme court can provide to us, the better we will be able to resolve the

abstention problem and possibly the merits. To assist the Alabama Supreme Court

in its consideration of this case, the briefs of the parties and amici curiae will

accompany this certification.

      We hope that the Alabama Supreme Court -- if it chooses to answer -- will

be able to answer our questions expeditiously. See generally Lehman Bros, 94 S.

Ct. at 1744. We retain jurisdiction over the case while the Alabama Supreme

Court considers the certified question; so we can rule on the abstention issue, and


                                           17
possibly the merits, if we get no help from the Alabama Supreme Court within a

suitable time. But we would greatly prefer to hear from the state’s highest court on

this unsettled and important area of state law. And if the law will allow it, we will

gladly let Alabama courts resolve this important question about Alabama law and

the United States Constitution: “the National Government will fare best if the

States and their institutions are left free to perform their separate functions in their

separate ways.”9 Younger, 91 S. Ct. at 750.

       CERTIFIED QUESTIONS.




   9
     We observe that because the Alabama Supreme Court adopted the judicial canons at issue
here, the court may also be able to remedy federal constitutional defects, if any, that it may find
in the judicial canons challenged by Justice See. Our certification to the Alabama Supreme
Court does not preclude this activity. See Pogue v. Oglethorpe Power Corp., 82 F.3d 1012, 1017
(11th Cir. 1996) (certification “offer[s] the state court the opportunity to interpret or change
existing law.”).

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