        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206           2    Hood v. Keller, et al.                      No. 02-3402
    ELECTRONIC CITATION: 2003 FED App. 0314P (6th Cir.)
                File Name: 03a0314p.06                    GENERAL, Columbus, Ohio, for Appellees. ON BRIEF:
                                                          Nathan W. Kellum, CENTER FOR INALIENABLE
                                                          RIGHTS, Memphis, Tennessee, for Appellant. Elise W.
UNITED STATES COURT OF APPEALS                            Porter, Tomi L. Dorris, OFFICE OF OHIO ATTORNEY
                                                          GENERAL, Columbus, Ohio, for Appellees.
               FOR THE SIXTH CIRCUIT
                 _________________                           GIBBONS, J., delivered the opinion of the court, in which
                                                          GILMAN, J., joined. KENNEDY, J. (pp. 11-12), delivered
 JAMES D. HOOD II,                 X                      a separate dissenting opinion.
           Plaintiff-Appellant,     -
                                    -                                         _________________
                                    -  No. 02-3402
            v.                      -                                             OPINION
                                     >                                        _________________
                                    ,
 RONALD T. KELLER; RICHARD -
                                                             JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-
 H. FINAN; KENNETH L.               -                     appellant James D. Hood II brought suit in federal district
 MORCKEL,                           -                     court against defendant-appellee Ronald Keller, in his official
         Defendants-Appellees. -                          capacity as the Executive Director of the Capitol Square
                                    -                     Review and Advisory Board; defendant-appellee Richard
                                   N                      Finan, in his official capacity as the Chairman of the Capitol
       Appeal from the United States District Court       Square Review and Advisory Board; and defendant-appellee
      for the Southern District of Ohio at Columbus.      Kenneth Morckel, in his official capacity as the
   No. 01-00454—Algenon L. Marbley, District Judge.       Superintendent of the Ohio State Highway Patrol, challenging
                                                          the constitutionality of Ohio Administrative Code § 128-4.
                 Argued: August 1, 2003                   This provision requires that all persons who wish to use the
                                                          Ohio Statehouse grounds in Columbus, Ohio, first obtain a
         Decided and Filed: September 3, 2003             permit to do so. In his complaint, Hood alleges that the
                                                          permit requirements set forth in Ohio Administrative Code
 Before: KENNEDY, GILMAN, and GIBBONS, Circuit            § 128-4 are unconstitutionally overbroad, vague, and
                    Judges.                               discriminatory in violation of his rights to free speech and
                                                          free exercise of religion under the First and Fourteenth
                  _________________                       Amendments to the United States Constitution. Hood claims
                                                          that the continued threat of enforcement of Ohio
                       COUNSEL                            Administrative Code § 128-4 “chills and deters plaintiff from
                                                          exercising his constitutional rights, causing irreparable harm
ARGUED:          Nathan W. Kellum, CENTER FOR             to plaintiff.” Defendants-appellees filed a motion to dismiss
INALIENABLE RIGHTS, Memphis, Tennessee, for               under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of
Appellant. Elise W. Porter, OFFICE OF OHIO ATTORNEY       Civil Procedure. The district court concluded that the

                            1
No. 02-3402                       Hood v. Keller, et al.      3   4      Hood v. Keller, et al.                      No. 02-3402

Rooker-Feldman doctrine prevented it from exercising                  (C) The board will collect a nominal fee of twenty
jurisdiction over this lawsuit, granted the motion under Rule         dollars--to cover the administrative cost of issuing a
12(b)(1), and dismissed the case. For the reasons set forth           permit. The fee may be waived for good cause shown.
below, we reverse the decision of the district court and
remand for further proceedings.                                      On May 18, 2000, Hood entered the Ohio Statehouse
                                                                  grounds and began to “preach and/or hand out religious
                             I.                                   tracts.” An officer of the Ohio State Highway Patrol arrived
                                                                  on the scene and told Hood “that he could not preach on the
  Hood is a Christian pastor. Since 1982, Hood has engaged        public property nor hand out religious tracts without a permit
in “religious speech activities” on the Ohio Statehouse           to do so.” Hood was asked to leave the property and refused.
grounds, including “open air proclamation, oral                   Later that day, Hood was charged with criminal trespass in
communication, and written literature.”                           violation of Ohio Revised Code § 2911.21(A)(2), which
                                                                  states:
  The Capitol Square Review and Advisory Board (Capitol
Square) is an eleven-member body with the “sole authority to          No person, without privilege to do so, shall . . .
regulate all uses of the capitol square.”            O.R.C.           [k]nowingly enter or remain on the land or premises of
§ 105.41(E)(2). Pursuant to its statutory authority, Capitol          another, the use of which is lawfully restricted to certain
Square has enacted a rule requiring all persons who wish to           persons, purposes, modes, or hours, when the offender
use the Ohio Statehouse grounds to obtain a permit before             knows he is in violation of any such restriction or is
doing so. Ohio Administrative Code § 128-4-02(A) states:              reckless in that regard.
  Capitol buildings or grounds are available for use by the          Hood filed a motion to dismiss the state criminal charges.
  public for the purpose of governmental business, public         In his motion to dismiss, Hood argued that Ohio Revised
  meetings for free discussion of public questions, or for        Code § 2911.21(A)(2) and Ohio Administrative Code § 128-1
  activities of a broad public purpose, provided the              et seq. “violate due process, freedom of speech, and the free
  authorized procedure has been followed and appropriate          exercise of religion and as such are unconstitutional.” On
  approvals have been received.                                   November 17, 2000, the Franklin County Municipal Court
                                                                  held that the challenged statutes were constitutional and
The procedure for obtaining a permit is described in Ohio         denied Hood’s motion to dismiss. A jury trial was held, and
Administrative Code § 128-4-03, which provides, in relevant       on November 29, 2000, Hood was found guilty of criminal
part:                                                             trespass and fined one hundred dollars. Hood appealed the
                                                                  decision to the Court of Appeals of Ohio, Tenth Appellate
  (A) A request for use of capitol buildings or grounds           District, but later filed a motion to dismiss his appeal, which
  shall be submitted in writing to the board no less than         was granted on April 2, 2001.
  fifteen and no more than one hundred eighty days prior
  to the event. For good cause shown, requests may be               On May 16, 2001, Hood filed a Verified Complaint in the
  submitted within less than fifteen days before the event.       United States District Court for the Southern District of Ohio
                                                                  against defendants-appellees. The complaint alleges that:
                            ***                                   (1) “[t]he continued threat of enforcement of Chapter 128-4
No. 02-3402                                Hood v. Keller, et al.           5    6    Hood v. Keller, et al.                       No. 02-3402

permit requirement and charge of criminal trespass for being                     Rooker-Feldman doctrine prevented the district court from
on public grounds, chills and deters plaintiff from exercising                   exercising subject matter jurisdiction over Hood’s claims, and
his constitutional right, causing irreparable harm to plaintiff;”                entered judgment for defendants-appellees. On April 8, 2002,
(2) “[t]he permit requirements set forth in Chapter 128-4 are                    Hood filed his notice of appeal.
unconstitutionally overbroad, vague, and discriminatory, as
applied and construed, in violation of freedom of speech                                                       II.
under the First and Fourteenth Amendments to the United
States Constitution;” (3) “[t]he permit requirements set forth                     This court reviews de novo a district court’s grant of a
in Chapter 128-4 are unconstitutionally overbroad, vague, and                    motion to dismiss for lack of subject matter jurisdiction.
discriminatory, as applied and construed, in violation of free                   Tropf v. Fid. Nat’l Title Ins. Co., 289 F.3d 929, 936 (6th Cir.
exercise of religion under the First and Fourteenth                              2002), cert. denied 123 S.Ct. 887 (2003).
Amendments to the United States Constitution;” and (4) that
defendants-appellees “impermissibly interfered with the                                                        A.
exercise of Pastor Hood’s rights of conscience and religion
and freedom of speech guaranteed by Section 1.027 and 1.11                         The district court held that the Rooker-Feldman doctrine
of the Ohio Constitution.”1 Hood requests the following                          bars Hood’s claims in this lawsuit. This decision was
relief: (1) “a judgment and decree declaring that Chapter 128-                   incorrect.
4 of the Ohio Administrative Code and Section 105.41 are                            The Rooker-Feldman doctrine has evolved from two
unconstitutional as applied to plaintiff’s activities in this                    Supreme Court cases which establish that “lower federal
case;” (2) “a preliminary and permanent injunction enjoining                     courts lack subject matter jurisdiction to engage in appellate
defendants, their agents, employees and all persons in active                    review of state court proceedings.” Peterson Novelties, Inc.
concert or participation with them, or any of them, from                         v. City of Berkley, 305 F.3d 386, 390 (6th Cir. 2002); see also
applying or enforcing or attempting to enforce against the                       Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); Dist. of
plaintiff Chapter 128-4 permit requirement for preaching                         Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
and/or handing out religious tracts;” (3) compensatory                           The purpose of the doctrine is to prevent “a party losing in
damages; and (4) reasonable costs and expenses.                                  state court . . . from seeking what in substance would be
  On July 16, 2001, defendants-appellees filed motions to                        appellate review of the state judgment in a United States
dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal                         district court, based on the losing party’s claim that the state
Rules of Civil Procedure. The district court found that the                      judgment itself violates the loser’s federal rights.” Tropf, 289
                                                                                 F.3d at 936-37 (quoting Johnson v. De Grandy, 512 U.S. 997,
                                                                                 1005-06 (1994)).
    1
      In his complaint, Hood also set forth claims of malicious                    The Rooker-Feldman doctrine bars district courts from
prosecution and false arrest. Hood voluntarily withdrew his claim of             hearing both challenges to state court judgments and claims
malicious prosecution prior to the district court’s ruling on defendants-        that are “inextricably intertwined” with state court judgments.
app ellees’ motio n to dism iss. In its March 1 5, 20 02, o rder, the district
court dismissed Hood’s claim of false arrest, noting that Hood “failed to        See Catz v. Chalker, 142 F.3d 279, 293 (6th Cir. 1998). “In
respond to the Defendants’ arguments” and “seems to have conceded that           practice this means that when granting relief on the federal
the claim of false arrest is without merit.” Hood has not app ealed the          claim would imply that the state-court judgment on the other
district court’s dismissal of the false arrest claim.
No. 02-3402                         Hood v. Keller, et al.     7    8      Hood v. Keller, et al.                        No. 02-3402

issues was incorrect, federal courts do not have jurisdiction.”     the litigant is challenging the constitutionality of a rule that
Pieper v. Am. Arbitration Ass’n, — F.3d. —, 2003 WL                 was applied to him, but is not asking to correct or revise the
21663246, at *2 (6th Cir. July 11, 2003); see also Pennzoil         determination that he violated the rule, Rooker-Feldman is no
Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J.,           obstacle to the maintenance of the suit.” (internal quotation
concurring) (“Where federal relief can only be predicated           marks omitted)).
upon a conviction that the state court was wrong, it is difficult
to conceive the federal proceeding as, in substance, anything          In Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224
other than a prohibited appeal of the state-court judgment.”).      (7th Cir. 1993), the Seventh Circuit examined the
The Rooker-Feldman doctrine, however, does not prohibit             applicability of the Rooker-Feldman doctrine to a similar
federal district courts from exercising jurisdiction where the      situation. The Illinois Judicial Inquiry Board filed charges
plaintiff’s claim is merely “a general challenge to the             against Robert Buckley, an Illinois state court justice, for
constitutionality of the state law applied in the state action,”    violating a state rule regulating the speech of candidates for
rather than a challenge to the law’s application in a particular    judicial office. Id. at 226. The Illinois Courts Commission
state case. Tropf, 289 F.3d at 937 (quoting Catz, 142 F.3d at       ruled that Buckley had violated the rule in his 1990 judicial
293). In determining the applicability of the Rooker-Feldman        campaign, and according to the Illinois state constitution, the
doctrine, federal courts “cannot simply compare the issues          commission’s decision was final such that Buckley had no
involved in the state-court proceeding to those raised in the       avenue for appeal within the state court system. Id.
federal-court plaintiff’s complaint,” but instead “must pay
close attention to the relief sought by the federal-court             Buckley filed suit in federal district court, not seeking to
plaintiff.” Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th           overturn the final decision from the Illinois Courts
Cir. 2003) (quoting Kenmen Eng’g, 314 F.3d at 476).                 Commission, but instead seeking a declaratory judgment that
                                                                    the state rule regulating the speech of judicial candidates is
  In his complaint, Hood claims that “[t]he continued threat        unconstitutional. The Seventh Circuit held that:
of enforcement of Chapter 128-4 permit requirement and
charge of criminal trespass for being on public grounds chills          Justice Buckley’s challenge to the constitutionality of
and deters [him] from exercising his constitutional rights,”            Illinois Supreme Court Rule 67(B)(1)(c) does not entail
thereby causing him irreparable harm. However, Hood has                 a challenge to the ruling by the Illinois Courts
not challenged his state court criminal trespass conviction.            Commission that he violated the rule. It is true that if as
As Hood correctly observes, the complaint contains “no                  in Leaf v. Supreme Court, 979 F.2d 589 (7th Cir.1992),
demand to set aside the verdict or the state court ruling.”             Buckley were seeking not only to clear away the rule so
Instead, Hood seeks injunctive and declaratory relief                   that he could run in future judicial elections unimpeded
prohibiting defendants-appellees from using “preaching                  by it but also to obtain relief against the discipline
and/or handing out religious tracts” as a basis for “enforcing          imposed upon him, he would be in effect appealing from
or attempting to enforce” Ohio Administrative Code § 128-4.             the Illinois Courts Commission’s judgment (though that
Because Hood does not seek to have the district court                   would be only a part of what he was doing), which
overturn his November 29, 2000, conviction in Franklin                  Rooker-Feldman forbids him to do. But he is not asking
County Municipal Court, the Rooker-Feldman doctrine is                  us to expunge the disciplinary finding or do anything else
inapplicable to this lawsuit. See Edwards v. Illinois Bd. of            to correct or revise the Commission’s judgment. He is
Admissions to Bar, 261 F.3d 723, 729 (7th Cir. 2001) (“When             not, in short, asking for any relief of the kind an appellant
No. 02-3402                        Hood v. Keller, et al.        9   10   Hood v. Keller, et al.                      No. 02-3402

  seeks – relief directed against a judgment. Of course that           court lacks jurisdiction; if the latter, then there is
  judgment, which by virtue of Rooker-Feldman Justice                  jurisdiction and state law determines whether the
  Buckley cannot attack in this suit, might by principles of           defendant prevails under principles of preclusion.
  res judicata bar him from maintaining this suit. But res
  judicata is a defense, not a limitation on jurisdiction. It        GASH Assoc. v. Village of Rosemont, Ill., 995 F.2d 726, 728
  must be pleaded. It has not been.                                  (7th Cir. 1993); see also Kenmen Eng’g v. City of Union, 314
                                                                     F.3d 468, 476 (10th Cir. 2002) (“Rather than prohibiting the
Id. at 227.                                                          relitigation of issues and claims (the province of the
                                                                     preclusion doctrines), Rooker-Feldman protects state-court
  As in Buckley, if Hood were seeking to obtain relief               judgments from impermissible appellate review by lower
directed against his November 29, 2000, conviction, instead          federal courts.”).
of simply seeking to clear away the allegedly unconstitutional
permit requirement so that he can preach and hand out                   In this case, Hood does not seek to set aside his conviction
religious tracts on Capitol grounds in the future unimpeded by       in Franklin County Municipal Court. Consequently, the
the permit requirement, then the Rooker-Feldman doctrine             Rooker-Feldman doctrine does not apply. Although the fact
would apply. But Hood is not asking the district court to            that Hood raised the same constitutional issue in the state
expunge his state court conviction. Consequently, the                court proceeding could potentially justify dismissing this
Rooker-Feldman doctrine does not bar this claim.                     lawsuit in whole or in part, we note that “absent exceptional
                                                                     cases or particular circumstances, a federal appellate court
   Applying the Rooker-Feldman doctrine, the district court          will not consider issues not passed on by the district court.”
observed that “the state court specifically ruled on the precise     United States v. State of Ohio, 957 F.2d 231, 234 (6th Cir.
issue presented to this court.” Hood v. Keller, No.                  1992) (quotation omitted). We thus decline to reach these
01-CV-454, 2002 WL 483560, at *6 (S.D. Ohio March 15,                issues and instead leave them for the district court to resolve
2002). The district court appears to have confused the               on remand.
Rooker-Feldman doctrine with the concept of preclusion. As
the Seventh Circuit has noted, “although the Rooker-Feldman                                        III.
doctrine and principles of preclusion may be easily confused
with each other because they both define the respect one court         For the foregoing reasons, we reverse the decision of the
owes to an earlier judgment, the two are not coextensive.”           district court and remand for further proceedings.
Centres, Inc. v. Town of Brookfield, Wis., 148 F.3d 699, 703
(7th Cir. 1998). Explaining the difference between the
Rooker-Feldman doctrine and preclusion, the Seventh Circuit
has stated:
  The Rooker-Feldman doctrine asks: is the federal
  plaintiff seeking to set aside a state judgment, or does he
  present some independent claim, albeit one that denies a
  legal conclusion that a state court has reached in a case to
  which he was a party? If the former, then the district
No. 02-3402                         Hood v. Keller, et al.    11    12   Hood v. Keller, et al.                      No. 02-3402

                      _______________                               challenge in state court. The state court has actually ruled on
                                                                    his general challenge. As the district court noted, the issue
                         DISSENT                                    was explicitly decided in the criminal case. Plaintiff cannot
                      _______________                               seek to have it relitigated here.

  KENNEDY, Circuit Judge, dissenting. Because I believe
the district court properly applied the Rooker-Feldman
doctrine, I respectfully dissent.
  Plaintiff made a general challenge as well as an applied
challenge to the constitutionality of the ordinance in the state-
court proceeding, the state-court judgment addressed and
confirmed the constitutionality of the ordinance as applied to
plaintiff and generally, and plaintiff did not appeal.
   It is clear that plaintiff is making the same applied
challenge to the constitutionality of the ordinance in his
federal complaint here, and on that basis the district court
applied the Rooker-Feldman doctrine. While plaintiff does
not directly ask that his conviction be set aside, he does
complain that defendants-appellees “impermissibly interfered
with the exercise of Pastor Hood’s rights of conscience and
religion and freedom of speech guaranteed by Section 1.027
and 1.11 of the Ohio Constitution, and asks that “a judgment
and decree declaring that Chapter 128-4 of the Ohio
Administrative Code and Section 105.41 are unconstitutional
as applied to plaintiff’s activities in this case.” The activity
described in the complaint is the May 18, 2000 activity in
which the state “unconstitutionally stopped plaintiff’s
speech.” To read plaintiff’s federal complaint as making only
a facial challenge would require us to disregard the fact that
plaintiff seeks injunctive relief only for himself and a
declaration that his conduct as described in the complaint was
constitutionally protected. To grant him the relief sought
would require us to consider the same issues previously
decided in Ohio state court; i.e., the constitutionality of the
ordinance as applied to plaintiff’s conduct on May 18, 2000.
Plaintiff’s general challenge is “inextricably intertwined” with
the state court proceeding. Further, plaintiff made a general
