                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0009p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                    X
                              Plaintiff-Appellee, -
 WILLIAM M. O’NEILL,
                                                     -
                                                     -
                                                     -
                                                         No. 07-3206
          v.
                                                     ,
                                                      >
 JONATHAN E. COUGHLAN,                               -
                            Defendant-Appellant. -
                                                    N
                     Appeal from the United States District Court
                    for the Northern District of Ohio at Cleveland.
                     No. 04-01612—Ann Aldrich, District Judge.
                                    Argued: December 4, 2007
                               Decided and Filed: January 9, 2008
                     Before: GUY, MOORE, and GILMAN, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Stephen W. Funk, ROETZEL & ANDRESS, Akron, Ohio, for Appellant. J. Michael
Murray, BERKMAN, GORDON, MURRAY & DEVAN, Cleveland, Ohio, for Appellee.
ON BRIEF: Stephen W. Funk, ROETZEL & ANDRESS, Akron, Ohio, for Appellant. J. Michael
Murray, Raymond V. Vasvari, Jr., BERKMAN, GORDON, MURRAY & DEVAN, Cleveland,
Ohio, for Appellee.
        GUY, J., delivered the opinion of the court, in which GILMAN, J., joined. MOORE, J.
(pp. 6-8), delivered a separate dissenting opinion.
                                       _________________
                                           OPINION
                                       _________________
         RALPH B. GUY, JR., Circuit Judge. Defendant Jonathan E. Coughlan, Disciplinary Counsel
for the Supreme Court of Ohio, appeals from the district court’s grant of summary judgment to
plaintiff William O’Neill in this action seeking to enjoin enforcement of three canons of the Ohio
Code of Judicial Conduct. O’Neill, a judge of the Ohio Court of Appeals at the time, was accused
of violating these canons while campaigning for election to the Ohio Supreme Court in 2004. The
district court concluded that enforcement of these canons would impermissibly restrict O’Neill’s free
speech rights as guaranteed by the First Amendment. We vacate the judgment entered in favor of
O’Neill because the district court should have abstained from deciding the merits of the case under
the authority of Younger v. Harris, 401 U.S. 37 (1971).


                                                 1
No. 07-3206           O’Neill v. Coughlan                                                        Page 2


                                                 I.
        William O’Neill was a candidate seeking election to the Ohio Supreme Court in 2004. His
campaign theme was “Money and Judges Don’t Mix.” To that end, he supported judicial campaign
finance reform and refused any donation over $10. In addition to the “Money and Judges Don’t
Mix” slogan, O’Neill’s campaign website included the following statement: “The time has come
to end the public’s suspicion that political contributions influence court decisions. The election of
Judge O’Neill is the best step toward sending the message: ‘This Court is Not For Sale!’”
        In July of 2004, James Trakas, Chairman of the Cuyahoga County Republican Party, filed
a grievance with the Office of the Disciplinary Counsel. The grievance alleged that O’Neill’s
campaign literature (1) failed to disclose the court for which he was a judge, in violation of Ohio
Code of Judicial Conduct Canon 7(D)(2) (prohibiting a candidate from “[using] the term ‘judge’
when a judge is a candidate for another judicial office and does not indicate the court on which the
judge currently serves”); (2) wrongfully identified his political party affiliation, in violation of
Canon 7(B)(3)(b) (“After the day of the primary election, a judicial candidate shall not identify
himself or herself in advertising as a member of or affiliated with a political party”); and (3)
wrongfully attacked the credibility of the Ohio judiciary. As to this last allegation, the grievance
alleged that O’Neill’s campaign statements “viciously malign the fair, unbiased and impartial
judiciary” without specifying any canon that O’Neill violated. O’Neill and the district court,
however, inferred that O’Neill was accused of violating Canon 7(B)(1), which requires judges and
judicial candidates to “maintain the dignity appropriate to judicial office.”
       Following standard procedure, the Office of the Disciplinary Counsel sent O’Neill a letter
advising him of Trakas’s grievance. That letter stated, in part:
              Please be advised that the enclosed grievance has been filed against you by
       James Trakas. Pursuant to Gov. Bar R. V, as referenced in Gov. Jud. R. II, the
       Disciplinary Counsel is required to investigate any matter filed with him or that
       comes to his attention. Accordingly, this office must obtain a response to such
       grievances, regardless of the form or ultimate sufficiency thereof. In accordance
       with Gov. Bar R. V, this investigation will be confidential.
               Please provide your written response on or before August 4, 2004. A copy
       of your reply will be sent to the grievant unless you request in writing that it not be
       so furnished . . . .
Without responding to this letter, O’Neill commenced this action in federal court alleging that the
canons were unconstitutional under the First and Fourteenth Amendments.
        O’Neill filed motions seeking a temporary restraining order and preliminary injunction to
prevent Coughlan from enforcing the canons against him. Coughlan argued in response that the case
was not ripe for review and that Coughlan was not the proper defendant. After a prompt hearing,
the district court rejected the “ripeness” argument, issued a temporary restraining order, and
requested additional briefing on the question of whether a preliminary injunction should be issued
as well. Coughlan’s response included both opposition to the preliminary injunction and a motion
to dismiss the complaint. In his brief, Coughlan reiterated his arguments that O’Neill’s suit was not
ripe because there had been no disciplinary action, and that he was the wrong defendant. He also
argued that the injunction should not issue because O’Neill’s claims were not likely to succeed on
the merits.
        On September 14, 2004, the district court granted plaintiff’s motion for a preliminary
injunction and deferred ruling on defendant’s motion to dismiss. Coughlan did not move for
reconsideration or file an appeal; but, ten days later, filed a “motion to clarify” whether the
No. 07-3206                 O’Neill v. Coughlan                                                                        Page 3


injunction applied only to O’Neill or to any person in the State of Ohio. In a “supplemental motion
to dismiss” filed October 6, 2004, Coughlan argued for the first time that the district court should
abstain from exercising its jurisdiction under Younger. The district court apparently never ruled on
defendant’s motion to dismiss.
        On March 10, 2006, more than a year later, Coughlan moved to dissolve the preliminary
injunction on the grounds of Younger abstention. In denying the motion, the district court found that
although abstention would apply, Coughlan had waived Ohio’s Younger abstention argument by
choosing to address the merits of O’Neill’s constitutional claim without raising the issue of
abstention. O’Neill v. Coughlan, 436 F. Supp.2d 905, 908 (N.D. Ohio 2006). In deciding the cross-
motions for summary judgment that followed, the district court again found defendant had waived
the argument for Younger abstention, granted O’Neill’s motion for summary judgment, converted
the preliminary injunction to a permanent injunction, and entered judgment accordingly. O’Neill
v. Coughlan, No. 04-CV-1612, 2007 WL 218717 (N.D. Ohio Jan. 26, 2007). The judgment declared
that Canons 7(B)(3)(b) and 7(D)(2) are facially unconstitutional,     and that Canon 7(B)(1) is
unconstitutional as applied to O’Neill. This appeal followed.1
                                                              II.
        Under Younger abstention, absent unusual circumstances not asserted here, a federal court
must decline to interfere with pending state civil or criminal proceedings when important state
interests are involved. Younger, 401 U.S. at 41; Middlesex County Ethics Comm. v. Garden State
Bar Ass’n, 457 U.S. 423, 432 (1982); Squire v. Coughlan, 469 F.3d 551, 555 (6th Cir. 2006); Sun
Refining & Mktg. Co. v. Brennan, 921 F.2d 635, 638-42 (6th Cir. 1990). Younger abstention is not
a question of jurisdiction, but is rather based on “strong policies counseling against the exercise of
such jurisdiction.” Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 626
(1986).
A.       Waiver
        Both parties acknowledge that a state can waive application of Younger abstention. Sosna
v. Iowa, 419 U.S. 393, 396-97 n.3 (1975); Ohio Bureau of Empl. Servs. v. Hodory, 431 U.S. 471,
479-80 (1977). The dispute here is whether a state waives the right to assert Younger simply by
addressing the merits of the case without having raised the issue of Younger abstention. While no
controlling authority has decided this precise issue, the decisions in Sosna and Hodory provide
guidance concerning the relevant parameters of such a waiver. Specifically, the Court in Sosna
raised the issue of Younger abstention sua sponte, but agreed to decide the case after the state urged
the Court to reach the merits of the plaintiff’s constitutional claim. 419 U.S. at 396-97 n.3.
        Similarly, Younger abstention was raised sua sponte in Hodory, but the state asked that the
Court disregard Younger and decide the constitutional issue on the merits. The Supreme Court
agreed to disregard Younger abstention because the state wanted a decision on the merits, explaining
that:




         1
            The dissent contends that O’Neill was placed in a catch-22. If he sought vindication in federal court too early,
his case would be dismissed for lack of ripeness, and if he brought suit when his claim was ripe, it would be dismissed
under the Younger abstention doctrine. I see no difference between O’Neill and any other litigant. All litigants who
bring suit before their claims are ripe face dismissal. Similarly, if the Younger doctrine is applicable to a case that is ripe,
it too will be dismissed. It can be assumed that in most cases where the Younger doctrine is applied, it is not to the liking
of the plaintiff. The doctrine, founded on principles of comity, is based upon concerns that rise above the wishes of
individual litigants.
No. 07-3206           O’Neill v. Coughlan                                                       Page 4


       Younger and these cited cases express equitable principles of comity and federalism.
       They are designed to allow the State an opportunity to “set its own house in order”
       when the federal issue is already before a state tribunal.
               It may not be argued, however, that a federal court is compelled to abstain in
       every such situation. If the State voluntarily chooses to submit to a federal forum,
       principles of comity do not demand that the federal court force the case back into the
       State’s own system. In the present case, Ohio either believes that the District Court
       was correct in its analysis of abstention or, faced with the prospect of lengthy
       administrative appeals followed by equally protracted state judicial proceedings, now
       has concluded to submit the constitutional issue to this Court for immediate
       resolution. In either event, under these circumstances Younger principles of equity
       and comity do not require this Court to refuse Ohio the immediate adjudication it
       seeks.
Hodory, 431 U.S. at 479-80. It is instructive that in both Sosna and Hodory, the Supreme Court
raised Younger abstention sua sponte well after the merits of the dispute had been argued and
decided, and no suggestion was made that Younger had been waived because it was not raised earlier
in the proceedings. Moreover, in both cases, the Court permitted the state to waive Younger
abstention upon the state’s clear and explicit statement that it did not want the Court to apply
Younger. This indicates that it is not necessary for the issue to have been raised either in the state’s
first responsive pleading or before the state addresses the merits.
        This court discussed a waiver of Younger abstention in Federal Express Corp. v. Tennessee
Public Service Commission, 925 F.2d 962, 965 (6th Cir. 1991), but did not decide the precise
question at issue in this case. This court held that the state defendant had not waived the argument
for Younger absention. Id. at 967. In doing so, we concluded that the state was not required to raise
abstention in its pleadings, particularly since abstention may be raised by the court sua sponte. Id.
at 966-67. The defendant had argued for abstention, but also moved for consolidation of the hearing
on the motion for preliminary injunction with the trial on the merits. The defendant conceded that
abstention did not apply at the hearing, but later retracted that concession in a supplemental filing.
The court explained that the defendant had “persistently argued for abstention,” and that the motion
to consolidate hearing was “a means of avoiding duplicative proceedings rather than a request for
the court to reach the merits of the constitutional issue.” Id. at 967.
        According to O’Neill, Federal Express implies that any request that the federal court reach
the merits of the lawsuit constitutes waiver of any argument for Younger absention. Such an
interpretation stretches the holding in Federal Express too far. This court merely restated the
principle explained in Hodory and in Dayton Christian Schools that a state may waive an argument
for Younger absention by affirmatively urging the federal court to proceed to the merits of a
constitutional claim despite the possible application of Younger abstention. There was no such
explicit waiver of abstention in Federal Express.
         In another case, this court found that an argument for Younger abstention had not been
waived even though the issue had not been raised by any party in the district court. Beeman v.
Stafford, No. 94-3634, 1995 WL 456367, at *4 (6th Cir. Aug. 1, 1995) (unpublished). This court
affirmed the denial of the habeas petition, but concluded that the district court should have abstained
from deciding the merits. The Younger issue was raised sua sponte on appeal, and we held that the
district court had no discretionary authority to grant injunctive relief because Younger abstention
applied. We also explained that although Younger abstention can be waived by a state, in each of
the Supreme Court cases the state expressly urged the court to adjudicate the constitutional claim
on the merits. Id. at *4 n.2 (quoting Dayton Christian Sch., 477 U.S. at 626). Relying on the
No. 07-3206               O’Neill v. Coughlan                                                                     Page 5


Supreme Court’s precedent, this court concluded that: “When faced with grounds for Younger
abstention, a federal court will only tread [wh]ere it is unequivocally invited.” Id. We agree.
       Accordingly, we find that Coughlan’s failure to assert Younger absention before arguing for
dismissal of the claims on the merits did not constitute waiver of the right to seek dismissal of the
complaint on the grounds of Younger abstention.
B.       Merits of Younger Abstention
         Younger abstention requires a federal court to abstain from granting injunctive or declaratory
relief that would interfere with pending state judicial proceedings. Younger, 401 U.S. at 40-41. We
look to three factors to determine whether a court should abstain from hearing a case under the
Younger doctrine: “(1) there must be on-going state judicial proceedings; (2) those proceedings
must implicate important state interests; and (3) there must be an adequate opportunity in the state
proceedings to raise constitutional challenges.” Sun Refining, 921 F.2d at 639. O’Neill contested
only the first factor, arguing that there was no ongoing state judicial proceeding because    the filing
of the grievance was a predicate to, but did not start, a state judicial proceeding.2
        We reject O’Neill’s argument, as the district court did, because the Ohio Supreme Court has
held that the filing of a grievance is the beginning of the judicial process. Hecht v. Levin, 613
N.E.2d 585, 588 (Ohio 1993).3 In Hecht, the court was asked to decide whether the filing of a
grievance under Gov. Bar R. V is part of a judicial proceeding in the context of a libel and slander
lawsuit. If the filing of a grievance is part of a judicial proceeding, then the griever is immune from
libel and slander charges. The court concluded that the filing of a grievance is part of a “judicial
proceeding” because “such a filing initiates the purely judicial disciplinary procedure created by this
court pursuant to Article IV of the Ohio Constitution.” Id. The court recognized that a grievance
is subject to investigation and independent review in order to “separate the wheat from the chaff”
before the filing of a formal complaint by the appropriate state authorities. Id. at 589. Nevertheless,
the court held that the filing and investigation of a grievance was part of a state “judicial
proceeding.”
       Despite this clear statement that judicial proceedings begin with the filing of a grievance,
O’Neill argues that Hecht is not controlling because it determined that the filing of a grievance
begins the judicial process in the context of a lawsuit, not a disciplinary action. We are not
persuaded that the different context requires us to disregard Hecht’s unambiguous holding.
Accordingly, the district court should have refrained from exercising its jurisdiction in this case.
       The injunction ordered by the district court is DISSOLVED, and the judgment in favor of
O’Neill is VACATED.
                                                _________________


         2
           O’Neill does not challenge the finding that the other two factors supporting Younger abstention were present.
In Squire, an Ohio state court judge filed suit against Coughlan in federal district court, alleging that the disciplinary
process deprived her of due process by not revealing all of her accusers’ names. The district court dismissed the case
sua sponte based on Younger abstention, and we affirmed. We decided that judicial disciplinary proceedings are state
judicial proceedings, qualifying them for Younger abstention; that the state has an important interest in attorney and
judicial disciplinary proceedings; and that the process affords the accused an adequate opportunity to raise constitutional
challenges. Squire, 469 F.3d at 556-57.
         3
          The disciplinary procedures for judges adopts the procedures used for attorney discipline. “Except as provided
in Sections 2(B) and (4) of this rule, complaints and grievances involving alleged misconduct by Justices, judges, and
candidates for judicial office . . . shall be brought, conducted, and disposed of in accordance with the provisions of this
rule and Gov. Bar. R. V.” GOV. JUD. R. II.
No. 07-3206           O’Neill v. Coughlan                                                        Page 6


                                             DISSENT
                                         _________________
         KAREN NELSON MOORE, Circuit Judge, dissenting. I dissent because I believe that
Coughlan waived application of Younger abstention and that, even in the absence of this waiver, the
facts of the case did not warrant abstention. Coughlan initially argued that O’Neill’s claim was not
ripe; only after the district court rejected that argument and ruled against Coughlan on the merits of
the preliminary injunction did he raise the issue of Younger abstention. Although a party to a civil
proceeding may raise inconsistent legal arguments, in the instant case Coughlan did not make a
ripeness argument and, in the alternative, an argument for abstention. Instead, the sequential timing
of Coughlan’s motions placed O’Neill in a catch-22. Consider the situation facing future subjects
of Ohio’s disciplinary proceedings under the precedent set by this case. If plaintiffs seek vindication
of their constitutional rights in federal court too early, then their cases will be dismissed for lack of
ripeness. If these individuals bring federal suits upon ripening of the claims, then their cases will
also be dismissed, this time under the Younger abstention doctrine. The majority opinion thus
effectively forecloses access to the federal courts for individuals who claim that Ohio’s Rules for
the Government of the Bar and of the Judiciary are unconstitutional.
        I disagree with the majority’s interpretation of precedent to require a conclusion that
Coughlan did not waive application of Younger abstention. The relevant Supreme Court decisions
discussing waiver hold that a federal court may raise the issue of Younger abstention sua sponte and
that an explicit expression of the state’s desire to submit to federal jurisdiction counsels against
abstention. Brown v. Hotel & Rest. Employees & Bartenders Int’l Union Local 54, 468 U.S. 491,
500 n.9 (1984) (observing that: “[t]he New Jersey Attorney General . . . does not, however, press
the Younger abstention claim before this Court, and instead submits to the jurisdiction of this Court
in order to obtain a more expeditious and final resolution of the merits of the constitutional issue”);
Ohio Bureau of Employment Servs. v. Hodory, 431 U.S. 471, 480 (1977) (exploring the applicability
of Younger abstention sua sponte and concluding that “[i]f the State voluntarily chooses to submit
to a federal forum, principles of comity do not demand that the federal court force the case back into
the State’s own system”); Sosna v. Iowa, 419 U.S. 393, 396 n.3 (1975) (explaining that the Court
had asked the parties to brief the issue of Younger abstention and received confirmation that both
parties wished a determination on the merits). I agree with O’Neill that these cases “stand merely
for the proposition that an express waiver will suffice to dispense with abstention, but [do not]
make[] such an express repudiation mandatory.” Plaintiff-Appellee Br. at 26. In Federal Express
Corp. v. Tennessee Public Service Commission, 925 F.2d 962 (6th Cir.), cert. denied, 502 U.S. 812
(1991), we found no waiver and applied Younger abstention when the state agency “ha[d]
persistently argued for abstention,” with the exception of one concession at oral argument later
retracted in a brief. Id. at 967. In contrast, Coughlan had not consistently argued for abstention but
rather had made arguments inconsistent with its application. I therefore would affirm the district
court’s holding that Coughlan had waived application of Younger abstention.
         Even if Coughlan had not waived application of Younger abstention, I do not believe that an
ongoing state judicial proceeding existed as required under the first prong of the test set forth in
Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). The
Ohio Supreme Court decision in Hecht v. Levin, 613 N.E.2d 585 (Ohio 1993), should be limited to
the facts of the case, which involved a libel and slander action brought by an attorney against an
individual who had filed a complaint regarding the attorney with a local bar association. Id. at 586.
The Ohio Supreme Court had posed the question in that case narrowly: “We must decide in this
case whether filing a grievance with a local bar association is a ‘judicial proceeding’ within the
meaning of Surace [an Ohio Supreme Court case holding that statements made in judicial
proceedings have immunity against defamation claims].” Id. at 588. The court based its holding
that statements made in the course of disciplinary proceedings enjoy immunity against defamation
claims in large part on public-policy considerations. Id. at 589. Accordingly, we should not extend
No. 07-3206               O’Neill v. Coughlan                                                                    Page 7


the holding of Hecht to hold that the filing of a grievance initiates a pending judicial proceeding for
the purposes of Younger abstention. Instead, the facts of the instant case closely resemble those in
two Fourth and Fifth Circuit cases, which declined to apply Younger abstention. In Telco
Communications, Inc. v. Carbaugh, 885 F.2d 1225, 1228 (4th Cir. 1989), the Fourth Circuit held that
Younger abstention was not required “where state proceedings were in a preliminary stage and
where the state had imposed a prior restraint upon protected speech.” In Louisiana Debating &
Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1490 (5th Cir. 1995), the Fifth Circuit followed
the logic of Telco, when a city Human Relations Commission had issued letters to private clubs
regarding complaints filed against them but no other administrative activity had ensued. No Sixth
Circuit case is exactly on point regarding the question whether the Disciplinary Counsel’s issuing
of a letter notifying a judge or attorney of a grievance1 filed against him or her catalyzes a pending
state proceeding for purposes of Younger abstention.
        In addition, I think that the circumstances of this case do not satisfy the third prong of the
Middlesex test because the state administrative process did not present O’Neill with an adequate
opportunity to argue the constitutional issues related to the complaint against him. As a general
matter, a judge or attorney may ultimately raise a constitutional defense to disciplinary proceedings
against him or her because the Ohio Supreme Court reviews any determination by the Board of
Commissioners that disciplinary action is required. See Gov. Bar R. V, § 8; Gov. Jud. R. II, § 5(D);
Spargo v. New York State Comm’n on Judicial Conduct, 351 F.3d 65, 72-73 (2d Cir. 2003), cert.
denied, 541 U.S. 1085 (2004). Significantly, however, O’Neill filed his federal suit twelve weeks
before the Ohio judicial elections. Although O’Neill might have ultimately brought his
constitutional arguments before the Ohio Supreme Court, the administrative disciplinary       process
afforded him no explicit opportunity to do so prior to review by the court.2 As a result, the
administrative process did not offer O’Neill an adequate state forum to raise constitutional issues
before the election; in the meantime, the threat of disciplinary action under the Judicial Canons
restricted O’Neill’s political speech.
        Finally, a decision by the district court to abstain under Younger would have been
undesirable as a matter of judicial policy. In Gerstein v. Pugh, 420 U.S. 103 (1975), the U.S.
Supreme Court found Younger abstention unwarranted in a federal suit brought by individuals
claiming a due-process right to a judicial hearing on whether probable cause existed for pretrial
detention. Id. at 108 n.9. The Court determined that the district court “injunction was not directed


         1
            The facts in Squire v. Coughlan, 469 F.3d 551 (6th Cir. 2006), can be distinguished. In that case, we found
abstention appropriate when the Disciplinary Counsel had completed its investigation and a probable-cause hearing had
been set. Id. at 554. In the instant case, Ohio disciplinary proceedings were not yet underway at the time O’Neill filed
his federal suit. The Disciplinary Counsel had merely issued a mandatory notice letter to O’Neill upon receipt of a
grievance. There still existed the possibility that the Disciplinary Counsel might not have found in the course of its
investigation substantial evidence of a violation of the Canons of Judicial Ethics. Furthermore, the statement in Squire
that “a disciplinary proceeding against a judge is ordinarily commenced by the filing of a grievance with the Ohio
Disciplinary Counsel,” 469 F.3d at 553, is dicta having the sole purpose to describe the start of the judicial grievance
process. That a disciplinary proceeding commences with the filing of a grievance, as a descriptive matter, does not mean
that a state proceeding is pending for purposes of Younger abstention.
         2
           In Squire, we found that although “there were no explicit instructions in either the Bar Rules or the Judiciary
Rules for raising constitutional claims at the precomplaint stage of the process,” Judge Squire had not met her burden
of proving “that Coughlan would have refused to consider her constitutional challenge.” 469 F.3d at 557. The
circumstances of O’Neill’s case, however, differ from that of Squire because O’Neill was a judicial candidate and not
simply a judge. The doubt regarding whether the Disciplinary Counsel or, subsequently, the Board of Commissioners
might consider O’Neill’s constitutional objections made the state disciplinary proceedings an inadequate forum. This
situation of uncertainty is a far cry from the right to adjudicate a constitutional issue in a court. Had Coughlan chosen
not to consider constitutional issues, O’Neill would have had to wait until review by the Ohio Supreme Court to raise
his constitutional defenses. Accordingly, O’Neill would have faced a chilling effect on his speech during a critical pre-
election period.
No. 07-3206           O’Neill v. Coughlan                                                     Page 8


at the state prosecutions as such, but only at the legality of pretrial detention without a judicial
hearing, an issue that could not be raised in defense of the criminal prosecution.” Id. Likewise, the
harm in the instant case is not merely the disciplinary action that would accompany a determination
that O’Neill violated the Judicial Canons, but also the disciplinary procedures themselves that were
conducted twelve weeks prior to the Ohio judicial elections. At a crucial moment in his candidacy,
O’Neill suffered irreparable injury because of the chilling effect on his exercise of his First
Amendment rights. Just as the plaintiffs in Gerstein raised constitutional issues distinct from their
defense to their prosecution, so too does the disciplinary proceeding against O’Neill implicate
constitutional issues distinct from the question of whether he violated the Judicial Canons. See
Habich v. City of Dearborn, 331 F.3d 524, 531 (6th Cir. 2003) (finding abstention inappropriate
under Gerstein); Flynt v. Leis, 574 F.2d 874 (6th Cir. 1978) (same), rev’d on other grounds, 439
U.S. 438 (1979).
        In conclusion, I believe that the district court decision in this case offers a paradigmatic
example of the appropriate exercise by a federal court of its equitable jurisdiction when declining
to exercise federal court subject-matter jurisdiction would position the plaintiff “between the Scylla
of intentionally flouting state law and the Charybdis of forgoing what he believes to be
constitutionally protected activity in order to avoid becoming enmeshed in a [disciplinary]
proceeding.” Steffel v. Thompson, 415 U.S. 452, 462 (1974).
       I respectfully dissent.
