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