
USCA1 Opinion

	




          April 15, 1996    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                     _________________________          No. 95-2129                                   TROY E. BROOKS,                                Plaintiff, Appellant,                                          v.                         NEW HAMPSHIRE SUPREME COURT, ET AL.,                                Defendants, Appellees                                                                                       __________________________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion  of  the court  issued  on  April  8, 1996,  is          corrected as follows:               Replace  footnote  4, page  6, to  read  in its  entirety as          follows:                    Although several  courts have applied an  abuse of               discretion  standard  in  reviewing Younger  abstention                                                   _______               cases,  see, e.g.,  Martin Marietta  Corp. v.  Maryland                       ___  ____   ______________________     ________               Human Relations  Comm'n, 38  F.3d 1392, 1396  (4th Cir.               _______________________               1994); O'Neil v. City of Philadelphia, 32 F.3d 785, 790                      ______    ____________________               (3d  Cir. 1994), cert. denied,  115 S. Ct. 1355 (1995);                                _____ ______               Ramos  v. Lamm, 639 F.2d 559, 564 n.4 (10th Cir. 1980),               _____     ____               cert.  denied, 450  U.S.  1041 (1981),  context is  the               _____  ______               determining factor.  Where an attempt is made to  apply               the   Younger   doctrine    under   oddly    configured                     _______               circumstances, in a  way that threatens  the legitimate               interests of the national government,  then the federal               court  may   exercise  a  modicum  of  discretion,  and               appellate  review is for abuse of that discretion.  See                                                                   ___               Chaulk Servs., Inc.  v. MCAD, 70  F.3d 1361, 1368  (1st               ___________________     ____               Cir.  1995).   But  for  purposes  of what  the  Chaulk                                                                ______               majority  called the  "customary case"    of  which the               case  at bar  is a  prototype    the Supreme  Court has               spoken peremptorily, see  Colorado River,  424 U.S.  at                                    ___  ______________               816  n.22,  and  intermediate  appellate   courts  are,               therefore, spinning  wheels by  probing for abuse  of a               discretion  that  does  not exist.    Nonetheless,  the               district court's findings of fact, in contradistinction               to   its   ultimate   legal  conclusion   as   to   the               applicability  vel  non of  the  Younger doctrine,  may                              ___  ___          _______               evoke a more deferential standard of review.                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-2129                                   TROY E. BROOKS,                                Plaintiff, Appellant,                                          v.                         NEW HAMPSHIRE SUPREME COURT, ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               Philip T. Cobbin for appellant.               ________________               Stephen J. Judge,  Senior Assistant  Attorney General,  with               ________________          whom  Jeffrey R.  Howard,  Attorney General,  was  on brief,  for                __________________          appellees.                              _________________________                                    April 8, 1996                              _________________________                    SELYA, Circuit Judge.  Balancing responsibility between                    SELYA, Circuit Judge.                           _____________          federal  and  state  governments   in  a  republic  that  assigns          interlocking sovereignty to each often requires federal courts to          walk an unsteady  tightrope.  From a federal court's perspective,          this special sort of judicial funambulism always  must proceed in          the spirit  of cooperative  federalism tempered, however,  by the          need to avoid the  pitfalls inherent in blind deference  to state          autonomy.                    The   case  at   hand   implicates   the  division   of          responsibilities between federal  and state judicial systems  but          does not require us to walk a very high wire.  We need only tread          on solid  ground, previously paved  by the United  States Supreme          Court, and apply  the Court's teachings  to the peculiar  factual          and legal  terrain  that underlies  this  appeal.   Because  that          exercise persuades  us that the district court performed its task          in  step with the principles  enunciated by the  Court, we affirm          the order from which the plaintiff appeals.          I.  BACKGROUND          I.  BACKGROUND                    We supply a thumbnail sketch of the relevant facts.  In          1992,  plaintiff-appellant Troy  E. Brooks  and Erica  Bodwell, a          member  of  the  New  Hampshire  bar,  engaged  in   an  intimate          relationship during a  period when Bodwell was separated from her          husband.  Bodwell  became pregnant.   She obtained  a divorce  in          late 1992, but the  final decree made no provision for her unborn          child.                    Bodwell gave birth  to a  son in February  of 1993  and                                          3          subsequently initiated  a paternity suit against  Brooks in which          she maintained that he  was the boy's biological father.   Brooks          acknowledged paternity and the  court entered a provisional order          covering matters such as support, custody, and visitation.                    Shortly thereafter,  Bodwell  reconciled with  her  ex-          husband, moved to discontinue  the paternity action, and, relying          on the  fact that  the child  was conceived while  she was  still          married,  sought refuge in the presumption of legitimacy.  Brooks          objected  to the proposed dismissal of the paternity suit and set          out to  confirm his  legal status  as the  boy's  father.   After          numerous skirmishes  concerning  paternity (not  relevant  here),          Brooks  filed complaints  with  the New  Hampshire Supreme  Court          Professional  Conduct Committee  (the  Committee)  against  three          attorneys,  including Erica  Bodwell, accusing  them  of flouting          various ethical canons in  their handling of the paternity  suit.          The  Committee  dismissed  the  complaints  after  conducting  an          investigation.                    Brooks  then sought to put to use in the paternity suit          both the  fact that a disciplinary complaint  had been instituted          against Erica  Bodwell and  certain evidence  to which  he became          privy during  the course of  the Committee's investigation.   His          efforts were  thwarted by  a rule  prohibiting the disclosure  of          knowledge  obtained during  the course  of attorney  disciplinary          proceedings.  See  N.H. Sup.  Ct. R. 37(17)(a)  (1984).1   Brooks                        ___                                        ____________________               1The  rule  in  effect  at  the  time,  with exceptions  not          relevant  here,   provided  that  all   records  and  proceedings          involving   allegations  of   attorney   misconduct   "shall   be                                          4          retorted by filing a pro se petition in the New Hampshire Supreme                               ___ __          Court  (the  NHSC) in  which  he  contended that  Rule  37(17)(a)          abridged  his First Amendment right to free speech and asked that          the rule be invalidated.                    On March 23, 1995, the NHSC agreed to entertain Brooks'          petition.  The court  scheduled briefing and oral argument  (with          the proviso that all matters connected with the proceeding remain          confidential).  Brooks then  retained counsel, Philip Cobbin, who          filed a brief  on his behalf.   The court accepted the  case on a          paper record once Brooks and his attorney refused to  participate          in oral  arguments behind closed doors.   The case has  yet to be          decided.                     After the  matter  had  been  taken  under  advisement,          Brooks, acting as his own attorney, sued the  members of the NHSC          and of the Committee (and others, for good measure, including the          state bar association) in New Hampshire's federal district court.          His complaint  sought declaratory and injunctive  relief aimed at          halting the enforcement of  Rule 37(17)(a).  In what  amounted to          anticipatory  disregard of that rule,  he attached a  copy of the          NHSC's order  (agreeing to  entertain his  petition, but  only in          camera)  to  his  federal   court  complaint.    Attorney  Cobbin          subsequently  entered an  appearance  for Brooks  in the  federal                                        ____________________          confidential  and  shall not  be disclosed."    N.H. Sup.  Ct. R.          37(17)(a).  The same rule also provided that "participants in the          proceedings  shall  conduct  themselves  so as  to  maintain  the          confidentiality  mandated   by  this   rule,"  and   warned  that          "[v]iolation  of this duty shall constitute an act of contempt of          the supreme court."  N.H. Sup. Ct. R. 37 (17)(g).                                          5          court and  moved for  a  preliminary injunction  designed (a)  to          freeze  the paternity suit until  the federal court  had ruled on          Brooks' constitutional  claim, (b) to  force the NHSC  to dismiss          Brooks' petition without prejudice, and (c) to prevent that court          from exercising its contempt  powers under Rule 37(17)(g) against          Brooks.    Without  requesting the  district  court  to  seal the          record, Attorney  Cobbin included in the motion a copy of a brief          filed in the confidential proceeding.  Not surprisingly, the NHSC          promptly directed  the Committee to determine  whether the lawyer          had violated Rule 37(17)(a).                    The  district  court  refused  to  issue a  preliminary          injunction.   The court reasoned  that the proceeding  pending in          the NHSC called into  play the doctrine of Younger v. Harris, 401                                                     _______    ______          U.S. 37 (1971); that Brooks' claim implicated  an important state          interest, namely, the administration of the attorney disciplinary          system; that Brooks  could obtain a full and fair  hearing on his          federal constitutional claim before the state tribunal; and that,          therefore, the Younger doctrine  disabled the district court from                         _______          granting the requested relief.  This appeal ensued.2          II.  STANDARD OF REVIEW          II.  STANDARD OF REVIEW                    Technically, this  is an appeal  from the  denial of  a                                        ____________________               2Following   oral  argument   on   this  appeal,   the  NHSC          substantially revised Rule 37(17).   See N.H. Sup. Ct.,  Order of                                               ___          March  7,  1996 &  appendices.   The  amendments take  some steps          toward meeting Brooks' objections by relaxing the confidentiality          restrictions  applicable  to  attorney disciplinary  proceedings.          But because the amendments  are without retroactive effect    the          Order  specifically   provides  that  the  amendments   shall  be          effective as to complaints filed on or after March 7, 1996   they          have no significant impact on this appeal.                                          6          preliminary   injunction,3  and   therefore  the   lower  court's          decision     assuming  that  it  applied  the  appropriate  legal          standard       ordinarily  must   stand   unless   the  appellant          demonstrates an  abuse  of  discretion.   See,  e.g.,  Weaver  v.                                                    ___   ____   ______          Henderson,  984 F.2d  11,  12-13 (1st  Cir.  1993).   If  Younger          _________                                                 _______          applies, however,  abstention is  mandatory,  see Colorado  River                                                        ___ _______________          Water Conserv. Dist.  v. United  States, 424 U.S.  800, 816  n.22          ____________________     ______________          (1976); Trust  & Investment  Advisers, Inc. v.  Hogsett, 43  F.3d                  ___________________________________     _______          290, 293-94  (7th Cir. 1994);  Fresh Int'l Corp.  v. Agricultural                                         _________________     ____________          Labor Relations Bd., 805 F.2d 1353, 1356 n.2 (9th Cir. 1986), and          ___________________          we must  review de  novo the  essentially legal  determination of          whether  the requirements  for  abstention have  been met.   See,                                                                       ___          e.g., Trust & Investment  Advisers, 43 F.3d at 294;  Kenneally v.          ____  ____________________________                   _________          Lungren, 967 F.2d  329, 331  (9th Cir. 1992),  cert. denied,  506          _______                                        _____ ______          U.S. 1054  (1993); Traughber v.  Beauchane, 760 F.2d  673, 675-76                             _________     _________          (6th  Cir.  1985).4    That  standard  supervenes  the  abuse  of                                        ____________________               3Despite   Brooks'   importuning,  we   have   no  appellate          jurisdiction over  the district court's  denial of the  flurry of          temporary restraining orders that he sought prior to the district          court's disposition  of his motion for  a preliminary injunction.          See  United States v.  Miller, 14 F.3d  761, 764  (2d Cir. 1994);          ___  _____________     ______          Massachusetts Air Pollution & Noise Abatement Comm'n v. Brinegar,          ____________________________________________________    ________          499 F.2d 125, 125 (1st Cir. 1974).               4    Although  several  courts  have  applied  an  abuse  of                    discretion  standard  in  reviewing Younger  abstention                                                        _______                    cases,  see, e.g.,  Martin  Marietta Corp.  v. Maryland                            ___  ____   ______________________     ________                    Human Relations  Comm'n, 38  F.3d 1392, 1396  (4th Cir.                    _______________________                    1994); O'Neil v. City of Philadelphia, 32 F.3d 785, 790                           ______    ____________________                    (3d Cir. 1994), cert.  denied, 115 S. Ct. 1355  (1995);                                    _____  ______                    Ramos  v. Lamm, 639 F.2d 559, 564 n.4 (10th Cir. 1980),                    _____     ____                    cert.  denied, 450  U.S.  1041 (1981),  context is  the                    _____  ______                    determining factor.  Where an attempt is made  to apply                    the   Younger   doctrine    under   oddly    configured                          _______                    circumstances, in  a way that threatens  the legitimate                                          7          discretion  inquiry, and  applies foursquare  even though  we are          reviewing the district court's denial  of injunctive relief.  See                                                                        ___          Fieger v. Thomas, 74 F.3d 740, 743 (6th Cir. 1996) (exercising de          ______    ______          novo  review in kindred  circumstances); Goldie's Bookstore, Inc.                                                   ________________________          v. Superior Court, 739 F.2d 466, 468 (9th Cir. 1984) (similar).             ______________                    This usurpation  of the  customary  standard of  review          does not create an awkward  anomaly.  The primary integer  in the          preliminary injunction calculus is the plaintiff's probability of          success on the merits.   See, e.g., Narragansett Indian  Tribe v.                                   ___  ____  __________________________          Guilbert,  934  F.2d 4,  5  (1st  Cir. 1991).5    This means,  of          ________          course, that the  plaintiff must show a  likelihood of succeeding          in the  pending proceeding.   When Younger applies,  the district          __________________________         _______          court must refrain  from reaching the  merits of the  plaintiff's          claims  and, thus, there  is no  real possibility    let  alone a                                        ____________________                    interests of the national  government, then the federal                    court   may  exercise  a  modicum  of  discretion,  and                    appellate  review is for abuse of that discretion.  See                                                                        ___                    Chaulk Servs., Inc.  v. MCAD, 70  F.3d 1361, 1368  (1st                    ___________________     ____                    Cir.  1995).   But  for  purposes  of what  the  Chaulk                                                                     ______                    majority  called the  "customary case"    of  which the                    case  at bar  is a  prototype    the Supreme  Court has                    spoken peremptorily,  see Colorado  River, 424  U.S. at                                          ___ _______________                    816  n.22,  and  intermediate  appellate   courts  are,                    therefore, spinning  wheels by  probing for abuse  of a                    discretion  that does  not  exist.    Nonetheless,  the                    district court's findings of fact, in contradistinction                    to   its   ultimate   legal  conclusion   as   to   the                    applicability  vel non  of  the Younger  doctrine,  may                                   ___ ___          _______                    evoke a more deferential standard of review.               5The  other  integers  in   the  calculus  include  (1)  the          likelihood of irreparable injury in  the absence of a preliminary          injunction, (2) the relative balance of hardships if the order is          issued or denied,  and (3) the  effect on the public  interest of          granting  or   withholding  interim  injunctive   relief.     See                                                                        ___          Narragansett Indian Tribe, 934 F.2d at 5.          _________________________                                          8          likelihood   that the  plaintiff will succeed  in his action.   A          fortiori,  there can  be no  abuse of  discretion in  refusing to          grant preliminary injunctive relief.          III.  ANALYSIS          III.  ANALYSIS                    Against this  backdrop, we  turn to a  consideration of          whether Younger  abstention is  appropriate in  this  case.   Our                  _______          analysis unfolds in four layers.                                          A.                                          A.                                          __                    The Younger doctrine welds principles of federalism and                        _______          comity  into a fulcrum that can then  be used to achieve a proper          balance  between  sensitive federal  and  state  interests.   See                                                                        ___          Younger, 401 U.S. at 44.  Based on these principles, the  Younger          _______                                                   _______          Court articulated the  federal judiciary's obligation  to refrain          from adjudicating the  merits of  federal claims where  to do  so          would  needlessly  inject  federal   courts  into  ongoing  state          criminal prosecutions.   See id.   Doctrinal  evolution over  the                                   ___ ___          next  quarter-century  brought  other  types   of  ongoing  state          proceedings,   including   civil   actions   and   administrative          adjudications,  within the  ambit  of Younger  abstention.   See,                                                _______                ___          e.g., New Orleans  Public Serv., Inc.  v. Council of City  of New          ____  _______________________________     _______________________          Orleans, 491 U.S. 350, 367-68 (1989); Ohio Civil Rights Comm'n v.          _______                               ________________________          Dayton Christian Sch., Inc., 477 U.S. 619, 627 (1986).          ___________________________                    Perhaps the  most revealing elucidation of  the balance          that  the Younger Court wished  to achieve is  found in Middlesex                    _______                                       _________          County  Ethics  Comm. v.  Garden State  Bar  Ass'n, 457  U.S. 423          _____________________     ________________________          (1982).   There  the New  Jersey  Ethics Committee  instituted  a                                          9          disciplinary proceeding  against a  defense lawyer who,  during a          criminal  trial,  had  made  statements  vilifying  the  judicial          system.  See  id. at 428.   The lawyer  sued in federal court  to                   ___  ___          block  the  disciplinary  proceeding   on  the  ground  that  the          standards of  professional conduct  relied upon by  the committee          abridged  his  First  Amendment   rights.    The  district  court          abstained, concluding that the  lawyer could raise his  claims in          the disciplinary  proceeding and  on subsequent  judicial review.          The Third Circuit reversed  on the basis that a  bar disciplinary          proceeding did not provide a suitable forum for the  adjudication          of the lawyer's constitutional claims.  643 F.2d 119.                    The  Supreme  Court  reinstated  the  district  court's          ruling.   457 U.S. at 437.   In the process the Court established          the  basic   analytical  framework  that  still  governs  Younger                                                                    _______          abstention.   Under this paradigm,  a federal court  must abstain          from reaching the merits of a case over which it has jurisdiction          so long as  there is  (1) an ongoing  state judicial  proceeding,          instituted  prior  to  the  federal  proceeding  (or,  at  least,          instituted  prior  to any  substantial  progress  in the  federal          proceeding), that (2) implicates an important state interest, and          (3)  provides an adequate opportunity for  the plaintiff to raise          the claims advanced in his federal lawsuit.  See id. at 432.                                                       ___ ___                                          B.                                          B.                    The next step in  the pavane requires us to  apply this          tripartite framework to the case at bar.                    1.  Two of  the three proceedings that Brooks  seeks to                    1.                                          10          enjoin    his petition questioning the  constitutionality of Rule          37(17)(a)  and the paternity suit in which  he is embroiled   are          pending before  duly constituted state courts  and are undeniably          ongoing  state  judicial proceedings.    See  New Orleans  Public                                                   ___  ___________________          Serv., 491 U.S. at 371 (listing rudiments of a judicial inquiry).          _____          The third proceeding    the embryonic contempt proceeding against          Cobbin  (which  Brooks,  in  all  events, may  lack  standing  to          contest)   is also judicial in nature.  Middlesex itself involved                                                  _________          a  First Amendment  challenge  to a  state's  system of  attorney          discipline, and the Supreme Court held that attorney disciplinary          proceedings are  judicial  proceedings for  purposes  of  Younger                                                                    _______          abstention.   See Middlesex, 457  U.S. at 433-34.   Consequently,                        ___ _________          the first prerequisite for Younger abstention is satisfied.                                     _______                    2.   It  is  evident that  New  Hampshire has  a  vital                    2.          interest in regulating the  subject matter of Brooks' claims.   A          state's judicial system is  an important cog in  its governmental          apparatus, and  no judicial  system can function  smoothly unless          the attorneys who participate in it are held to high standards of          professionalism and accountability.   See id.  at 434-35.   Thus,                                                ___ ___          regulating   attorney  conduct  comprises   a  significant  state          interest  for purposes of Younger abstention.6  See id.; see also                                    _______               ___ ___  ___ ____                                        ____________________               6The defendants represent  the state's interest.   By way of          illustration,   the   NHSC   is  charged   with   the   paramount          responsibility of establishing procedures and standards governing          attorney discipline  "that are emblematic of the character of the          profession."  Petition of Burling, 651 A.2d 940, 944 (N.H. 1994);                        ___________________          see also N.H. Const., pt. II, art. 73-a.  To achieve that mission          ___ ____          the court relies upon the Committee to investigate  and determine          the  propriety of  attorneys'  conduct.   See  N.H. Sup.  Ct.  R.                                                    ___          37(3)(c); see also Burling, 651 A.2d at 941-42.                    ___ ____ _______                                          11          Fieger,  74  F.3d at  745; Hirsh  v.  Justices of  Calif. Supreme          ______                     _____      ___________________________          Court, 67 F.3d 708, 712-13 (9th Cir. 1995).          _____                    In the same vein,  the confidentiality rule comprises a          central  element  of   the  regulatory  scheme.    The  NHSC  has          identified no fewer than four  noteworthy purposes that the  rule          serves:   (1)  protecting attorneys' reputations;  (2) protecting          complainants' anonymity; (3) maintaining the integrity of pending          investigations;  and (4)  preventing profligate  disclosures that          might endanger the interests of those sources from whom the state          obtained  information  on a  confidential  basis.   See  State v.                                                              ___  _____          Merski, 437 A.2d 710, 715 (N.H. 1981), cert. denied, 455 U.S. 943          ______                                 _____ ______          (1982).  Since  the rule's  proper operation is  itself of  great          moment  to New  Hampshire  citizens, the  second requirement  for          Younger abstention is satisfied.7          _______                    3.   We also believe that the pending state proceedings                    3.          allow an ample opportunity for Brooks to raise his constitutional          challenge.    The clearest  illustration  of  this  point is  the          proceeding presently pending  before the NHSC (in  which the very          issue that forms the centerpiece of Brooks' federal complaint  is          raised,  briefed, and teetering on  the brink of  decision).  Any          other assessment  would defile  the basic presumption  that state          courts are  fully capable of safeguarding  federal constitutional          rights.  See Middlesex, 457 U.S. at 431; Bettencourt v. Board  of                   ___ _________                   ___________    _________                                        ____________________               7Although  the  NHSC recently  amended  the  version of  the          confidentiality rule that is at issue here, see supra note 2, the                                                      ___ _____          state nevertheless  retains a  strong interest in  preserving the          expectations of confidentiality created by the former regime.                                          12          Registration in Medicine, 904 F.2d 772, 776 (1st Cir. 1990).          ________________________                    Here, the  presumption is  reinforced because  the NHSC          has demonstrated unequivocally that  it takes questions anent the          confidentiality provisions  seriously.   See,  e.g., Petition  of                                                   ___   ____  ____________          Burling,  651  A.2d  940  (N.H.  1994).     Indeed,  when  Brooks          _______          interposed his objections to the confidentiality rule, the NHSC            which  could have  brushed  aside his  petition  as a  matter  of          discretion   elected to entertain the objections, and did so in a          proceeding that affords Brooks an adequate opportunity to present          his constitutional arguments.                    Though Brooks  maintains  that the  NHSC proceeding  is          less  than adequate  because of  its confidential  character, the          Supreme  Court  has  never  suggested  that  having  an  adequate          opportunity  to present  a  federal claim  requires the  parallel          state  proceeding be  open to  the public.   Rather, the  test is          whether  "state  law  clearly   bars  the  interposition  of  the          constitutional  claims."   Moore v.  Sims,  442 U.S.  415, 425-26                                     _____     ____          (1979).   Nothing in the  confidential nature of  the state court          proceeding  constitutes such  a  bar.8    The third  (and  final)          requirement for Younger abstention is therefore satisfied.                          _______                                          C.                                          C.                                          __                    Fulfillment  of  the  three  requirements  for  Younger                                                                    _______          abstention usually  ends the  federal inquiry.   See Bettencourt,                                                           ___ ___________                                        ____________________               8For what it may be worth, we note that, if the NHSC follows          past practice, its eventual  disposition of Brooks' petition will          be embodied  in a published,  publicly accessible opinion.   See,                                                                       ___          e.g.,  Petition of  Burling, 651  A.2d  940 (N.H.  1994); Astles'          ____   ____________________                               _______          Case, 594 A.2d 167 (N.H. 1991).           ____                                          13          904  F.2d at 779-80.   But even  if the Younger  requirements are                                                  _______          satisfied, a federal  court may nonetheless intervene  to halt an          ongoing state judicial  proceeding if the plaintiff  demonstrates          "bad  faith,  harassment,  or  any  other unusual  circumstance."          Younger, 401 U.S. at 54.  Brooks suggests that his case trips the          _______          exception.   He bases this suggestion broadly, but the only point          that bears extended discussion  is his allegation that  the state          tribunal is incompetent by reason of bias.                    Judicial  bias  is  a recognized  basis  for  derailing          Younger abstention, see, e.g., Gibson v. Berryhill, 411 U.S. 564,          _______             ___  ____  ______    _________          577-79  (1973), but  the claim  requires more  than the  frenzied          brandishing of  a  cardboard  sword.   Brooks'  claim  is  pasted          together  from various  bits  and pieces  of marginally  relevant          information.   For example, he notes that several Justices of the          NHSC   have   advocated   confidential  treatment   of   judicial          disciplinary  proceedings; that  certain Justices  have testified          before legislative committees  in opposition  to restrictions  on          the Chief  Justice's rulemaking  power; that  the NHSC  will only          hear  oral argument on his petition behind closed doors; and that          in  the  state  court  proceeding  the  Committee  has  staunchly          defended the validity of the confidentiality rule.  We think that          such snippets, individually and collectively, are insufficient to          show cognizable bias.                    In the first place,  the bias exception to the  Younger                                                                    _______          abstention doctrine  is  inapposite if  an  ostensibly  aggrieved          party  fails  to  employ  available  procedures  for  recusal  of                                          14          allegedly  biased  judges.    See  Middlesex,  457  U.S.  at 435;                                        ___  _________          Bettencourt,  904  F.2d at  780;  Standard  Alaska Prod.  Co.  v.          ___________                       ___________________________          Schaible,  874 F.2d 624, 629  (9th Cir. 1989),  cert. denied, 495          ________                                        _____ ______          U.S.  904 (1990).   Brooks  has never sought  the recusal  of any          individual Justice.  While he  attempts to justify this  omission          on the basis of  various tactical considerations and by  claiming          that  the NHSC's  standard recusal  mechanism is  inapplicable to          proceedings  that  fall  within its  original  jurisdiction,  his          explanations lack force.   For this reason alone, his  claim must          fail.                    In  the  second place,  the  baseline  showing of  bias          necessary  to trigger  Younger's  escape mechanism  requires  the                                 _______          plaintiff to offer some  evidence that abstention will jeopardize          his  due process right to an impartial adjudication.  See Gibson,                                                                ___ ______          411  U.S. at 577; Bettencourt,  904 F.2d at  780.  The "evidence"                            ___________          that  Brooks presents does not approach this benchmark.  At most,          Brooks'  claim depends on a purely conclusory allegation that the          Justices of the NHSC are predisposed to uphold their own policies          and  rules.    But an  entire  group  of  adjudicators cannot  be          disqualified  wholesale  solely  on   the  basis  of  an  alleged          institutional  bias in favor of  a rule or  policy promulgated by          that group.   See, e.g., Doolin Security  Savs. Bank v. FDIC,  53                        ___  ____  ___________________________    ____          F.3d 1395, 1407 (4th Cir.), cert. denied, 116 S. Ct. 473  (1995);                                      _____ ______          Hammond v. Baldwin, 866 F.2d 172, 177 (6th Cir. 1989).          _______    _______                    To   implicate   due   process,   claims   of   general          institutional  bias must be  harnessed to a  further showing, see                                                                        ___                                          15          Gibson,  411 U.S.  at  579,  such  as  a  potential  conflict  of          ______          interest, see, e.g., Ward v. Village of Monroeville, 409 U.S. 56,                    ___  ____  ____    ______________________          60 (1972), or a pecuniary stake in the outcome of the litigation,          see, e.g.,  Bettencourt, 904 F.2d  at 780 n.10.   For aught  that          ___  ____   ___________          appears,  the  Justices' interest  (if  any)  in maintaining  the          privacy of attorney disciplinary proceedings appears to be purely          Platonic.9  At least,  Brooks has not produced any  evidence that          the  NHSC  or  any individual  Justice  stands  to  gain or  lose          depending  on  whether   attorney  disciplinary  proceedings  are          conducted in public or private, nor has he revealed the existence          of any particularized  interest in the outcome  of his litigation          that might tend to undermine the Justices' impartiality.                    In the third  place, to the extent that Brooks contends          that any individual Justice is  actually biased or has  prejudged          his case, he offers  no concrete evidence to that  effect.  Thus,          he bumps up against the historic presumption that judges are "men          [and women] of conscience and intellectual discipline, capable of          judging a particular controversy  fairly on the basis of  its own          circumstances."   Withrow  v.  Larkin,  421  U.S. 35,  55  (1975)                            _______      ______          (internal quotation marks and citation omitted).  The presumption          of  judicial impartiality  cannot  be  trumped  by  free-floating          invective, unanchored to specific facts.  See Kenneally, 967 F.2d                                                    ___ _________          at 333; Bettencourt, 904 F.2d at 780 n.10.                  ___________                                        ____________________               9The structural bias claims, weak in all events, are further          undermined by the recent  amendments to the confidentiality rule.          See supra note 2.   Those amendments, adopted without  dissent by          ___ _____          the Justices, liberalize the rule  in such a way as to  provide a          strong indication that the Justices are not wed to secrecy.                                          16                                          D.                                          D.                                          __                    We add brief comments  concerning two other claims that          Brooks seems to make.                    1.    To the  extent that  Brooks  invites us  to forgo                    1.          Younger  abstention because his attorney is the subject of a bad-          _______          faith prosecution by the NHSC (arising out of disclosures made in          violation  of Rule  37(17)(a)  whilst  representing  Brooks),  we          decline  the invitation.   The NHSC's investigation  of Cobbin is          not  an  enforcement  proceeding brought  without  any  realistic          expectation of finding a violation of a rule; and, therefore, the          investigation does  not catalyze  the bad-faith exception  to the          Younger doctrine.   See Younger, 401 U.S. at  48; Fieger, 74 F.3d          _______             ___ _______                   ______          at 750; see also Dombrowski v. Pfister, 380 U.S. 479, 482 (1965).                  ___ ____ __________    _______                    2.   In  something of  a non  sequitur, Brooks,  citing                    2.          Younger,  claims  that  the threat  of  disciplinary  proceedings          _______          against   him   and   his   attorney  for   violations   of   the          confidentiality rule  chills the exercise of  his First Amendment          rights,  and   that   the  confidentiality   rule  is   therefore          "flagrantly  and patently  violative  of  express  constitutional          prohibitions  in every  clause,  sentence and  paragraph, and  in          whatever manner and against  whomever an effort might be  made to          apply it."  Younger,  401 U.S. at 53-54 (quoting Watson  v. Buck,                      _______                              ______     ____          313 U.S. 387, 402 (1941)).  But Younger itself belies this claim.                                          _______          The Younger Court declared that "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                                          17          action."  Id. at 51; accord Fieger, 74 F.3d at 750.  Here, Brooks                    ___        ______ ______          has posited no other legally tenable basis for his challenge.          IV.  CONCLUSION          IV.  CONCLUSION                    We  need  go no  further.   Although  Brooks  raises an          important question  about the interplay  between New  Hampshire's          attorney  disciplinary  system  and  the  First  Amendment,  that          question is  presently pending  before the New  Hampshire Supreme          Court in  a judicial  proceeding that Brooks  himself instituted.          If, in  the end, Brooks  is not content  with the result  of that          adjudication, he may then seek certiorari in the Supreme Court of          the  United States.  He may not, however, rewardingly request the          federal district court to enjoin the state proceedings.          Affirmed.          Affirmed.          ________                                          18
