Hood v. Keller

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 3, 2003
• Docket: 02-3402
• Status: Published

Opinion

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

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

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

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

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

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

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