Case: 16-16319 Date Filed: 10/25/2016 Page: 1 of 11 CASE NO. 16-16319-E UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT HON. TOM PARKER, Associate Justice of the Supreme Court of Alabama, v. Plaintiff-Appellant, JUDICIAL INQUIRY COMMISSION OF THE STATE OF ALABAMA; BILLY C. BEDSOLE, in his official capacity as Chairman of the Judicial Inquiry Commission of the State of Alabama; DAVID SCOTT, HON. RANDALL L. COLE, HON. CRAIG S. PITTMAN, DAVID THRASHER, RALPH A. MALONE, AUGUSTA S. DOWD, HON. KIM J. CHANEY, and HON. DAVID A. KIMBERLEY, in their official capacities as Members of the Judicial Inquiry Commission of the State of Alabama; and LUTHER STRANGE, in his official capacity as Attorney General of the State of Alabama, Defendants-Appellees. Appeal from the United States District Court for the Middle District of Alabama, Northern Division, Honorable W. Keith Watkins Case No. 2:16-cv-00442-WKW-SRW ***TIME SENSITIVE*** PLAINTIFF-APPELLANT S MOTION TO RELINQUISH JURISDICTION AND REMAND IN LIGHT OF CHANGE IN MATERIAL CIRCUMSTANCES Mathew D. Staver Horatio G. Mihet LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 Phone: (407) 875-1776 Fax: (407) 875-0770 Email: court@lc.org Attorneys for Plaintiff-Appellant
Case: 16-16319 Date Filed: 10/25/2016 Page: 2 of 11 CERTIFICATE OF INTERESTED PERSONS Pursuant to Fed. R. App. P. 26.1 and Eleventh Circuit Rule 26.1-2(c), Plaintiff-Appellant Honorable Tom Parker, Associate Justice of the Supreme Court of Alabama ( Justice Parker ) hereby certifies that the following individuals and entities have an interest in this litigation. To the best of Justice Parker s knowledge, none of the following individuals or entities are a corporation that issues stock to the public: 1. Bedsole, Billy D., Defendant-Appellee 2. Chaney, Hon. Kim J., Defendant-Appellee 3. Cole, Hon. Randall L., Defendant-Appellee 4. Dowd, Augusta S., Defendant-Appellee 5. Franklin, Samuel F., Counsel for Defendant-Appellee 6. Jauregui, Phillip L., Counsel for Plaintiff-Appellant 7. Judicial Action Group, Counsel for Plaintiff-Appellant 8. Judicial Inquiry Commission of Alabama, Defendant-Appellee 9. Kimberley, Hon. David A., Defendant-Appellee 10. Liberty Counsel, Inc., Counsel for Plaintiff-Appellant 11. Lightfoot, Franklin, & White, LLC, Counsel for Defendant-Appellee 12. Malone, Ralph A., Defendant-Appellee 13. Mihet, Horatio G., Counsel for Plaintiff-Appellant CIP - 1
Case: 16-16319 Date Filed: 10/25/2016 Page: 3 of 11 14. Parker, Hon. Tom, Plaintiff-Appellant 15. Parker, William C., Jr., Counsel for Defendant-Appellee 16. Pate, R. Ashby. Counsel for Defendant-Appellee 17. Pittman, Hon. Craig S., Defendant-Appellee 18. Scott, David, Defendant-Appellee 19. State of Alabama, Office of Attorney General, Defendant-Appellee 20. Staver, Mathew D., Counsel for Justice Parker 21. Strange, Luther, Defendant-Appellee 22. Thrasher, David, Defendant-Appellee 23. Watkins, Hon. W. Keith, Trial Judge CIP - 2
Case: 16-16319 Date Filed: 10/25/2016 Page: 4 of 11 MOTION TO RELINQUISH JURISDICTION AND REMAND WITH INSTRUCTIONS IN LIGHT OF CHANGE IN MATERIAL CIRCUMSTANCES Pursuant to Fed. R. App. P. 27 and Eleventh Circuit Rule 27-1, and in the interest of judicial economy, Plaintiff-Appellant, Honorable Justice Tom Parker ( Justice Parker ), by and through the undersigned counsel, respectfully moves this Court to relinquish its jurisdiction over the instant appeal and issue an order remanding this matter with instructions to the district court for consideration in light of a material change in circumstances. In support thereof, Justice Parker shows unto the Court as follows: 1. On June 16, 2016, Justice Parker filed his Verified Complaint with the district court seeking declaratory and injunctive relief against various Alabama Canons of Judicial Ethics and against Article VI, Section 159 of the Alabama Constitution. (See Dkt. 39, Memorandum Opinion and Order, Order at 1) (A copy of the Order is attached hereto as EXHIBIT A). 2. Justice Parker alleged that the challenged judicial canons violate his fundamental rights to free speech under the First Amendment to the United States Constitution, and that the challenged constitutional provision violates his right to due process under the Fourteenth Amendment to the United States Constitution. (Id.).
Case: 16-16319 Date Filed: 10/25/2016 Page: 5 of 11 3. At the time Justice Parker filed his federal complaint, the Alabama Judicial Inquiry Commission ( JIC ) was investigating a judicial ethics complaint lodged against Justice Parker by the Southern Poverty Law Center. The judicial complaint was under investigation by JIC but no charge had been filed with the Alabama Court of the Judiciary ( COJ ). (Order at 8). 4. Despite the fact that the JIC had not filed a charge with the COJ, the district court held that the JIC s preliminary investigation nevertheless constituted an ongoing judicial proceeding such that abstention was proper under Younger v. Harris, 401 U.S. 37 (1971). (Id. at 19). 5. Because it held that the JIC s preliminary investigation was an ongoing state judicial proceeding subject to Younger abstention, the district court abstained from the matter and entered final judgment dismissing Justice Parker s claims without prejudice. (Dkt. 42). 6. In addition to dismissing the case, the district court entered an order denying Justice Parker s request for a preliminary injunction. (Dkt. 40). 7. The district court s final judgment dismissing Justice Parker s claims and denying his requested injunctive relief was entered on September 29, 2016. (Dkt. 42). 8. On the same date, Justice Parker filed his notice of appeal challenging the dismissal of his claims and the denial of injunctive relief. (Dkt. 43). 2
Case: 16-16319 Date Filed: 10/25/2016 Page: 6 of 11 9. On September 30, 2016, this Court docketed Justice Parker s appeal. 10. On October 12, 2016, during the pendency of this appeal, the JIC dismissed the complaint against Justice Parker, and the preliminary investigation has thus ended. A copy of the JIC s letter to Justice Parker advising him that it was dismissing the complaint against him in full is attached hereto as EXHIBIT B. 11. There is, therefore, no longer any proceeding pending before the JIC or in any state agency or court that presents any abstention roadblock to federal court adjudication of Justice Parker s constitutional challenge. 12. This Court has inherent authority to control its own docket and control the disposition of causes on its docket with economy of time and effort for itself, for counsel, and for litigants. Landis v. North American Co., 299 U.S. 248, 255 (1936); Nelson v. Grooms, 307 F.2d 76, 78 (5th Cir. 1962) (same). 13. The JIC s dismissal of its investigation of the complaint against Justice Parker represents a material change in circumstances warranting an order from this Court relinquishing jurisdiction of the instant appeal and remanding the matter with instructions to the district court for further consideration in light of the material change in circumstances. See, e.g., State Farm Mutual Ins. Co. v. Duel, 324 U.S. 154, 161 (1945) (holding that it is customary procedure to remand a matter to the court from whence it came when there has been a material change in circumstances 3
Case: 16-16319 Date Filed: 10/25/2016 Page: 7 of 11 due to an intervening event); Nat l R.R. Passenger Corp. v. Florida, 929 F.2d 1532, 1538 (11th Cir. 1991) (remand is appropriate when there has been a material change in circumstances during the pendency of the appeal); Concerned Citizens of Vicksburg v. Sills, 567 F.2d 646, 649-50 (5th Cir. 1978) ( where circumstances have changed between the ruling below and the decision on appeal, the preferred procedure is to remand to give the district court an opportunity to pass on the changed circumstances. (quoting Korn v. Franchard Corp., 456 F.2d 1206, 1208 (2d Cir. 1972)). 1 14. The district court s decision dismissing Justice Parker s claims and denying his requested injunctive relief rests exclusively on Younger abstention because of its determination that a preliminary investigation represented an ongoing proceeding. (Order at 19). The JIC s dismissal of the complaint against Justice Parker materially changes the circumstances surrounding that decision. It is therefore incumbent on this Court to take notice of the fundamental transformation of the situation and issue an order appropriate for the changed circumstances. It is well established that an appellate court is obliged to take notice of changes in fact or law occurring during the pendency of a case on appeal which would make a lower court s decision, though perhaps correct at the time of its entry, operate to deny 1 The Fifth Circuit s decision in Concerned Citizens of Vicksburg v. Sills is binding precedent on this Court. See Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981). 4
Case: 16-16319 Date Filed: 10/25/2016 Page: 8 of 11 litigants substantial justice. Concerned Citizens of Vicksburg, 567 F.2d at 649 (quoting Hawkes v. I.R.S., 467 F.2d 787, 793 (6th Cir. 1972)). 15. Indeed, appellate courts have consistently, as a matter of customary procedure or preferred procedure, relinquished jurisdiction and remanded to the district court for consideration of changed circumstances when the basis for abstention no longer exists due to the state proceeding being dismissed or concluded. See, e.g., Concerned Citizens of Vicksburg, 567 F.2d at 648-50 (remanding a case to the district court after the pending prosecutions that served as the basis for Younger abstention were dismissed during the pendency of the appeal); Garden State Bar Ass n v. Middlesex Cnty. Ethics Comm n, 687 F.2d 801, 803 (3d Cir. 1982) (remanding case to the district court when the ethical investigation proceedings that served as the basis for Younger abstention were concluded); Thomas v. Texas St. Bd. of Med. Examiners, 807 F.2d 453, 457 (5th Cir. 1987) (remanding case in light of changed circumstances when the state proceeding was dismissed, and directing the district court not to abstain but to address the merits). These cases compel the same result here. 16. Because the sole basis for this appeal would challenge the propriety of abstention in circumstances no longer in existence, the continuation of this appeal would be a waste of judicial resources and can now result in nothing more than a prohibited advisory opinion. Concerned Citizens of Vicksburg, 567 F.2d at 649 5
Case: 16-16319 Date Filed: 10/25/2016 Page: 9 of 11 ( Our jurisdiction to decide what effect the six pending prosecutions should have on the 43 unindicted plaintiffs in this case was terminated when those six prosecutions were terminated. Any decision on the merits of that question at this point could be no more than an opinion advising what the law would be upon a hypothetical state of facts, and as such is strictly forbidden by Article III of the Constitution. ). Judicial economy necessitates remand. WHEREFORE, for good cause shown, Justice Parker respectfully requests that this Court (1) relinquish jurisdiction of the instant appeal and (2) remand to the district court with instructions that the distric court reconsider its order on abstention in light of the material change in circumstances surrounding its decision to abstain. Dated: October 25, 2016 Respectfully submitted, /s/ Horatio G. Mihet Horatio G. Mihet Mathew D. Staver LIBERTY COUNEL P.O. Box 540774 Orlando, FL 32854 Phone: (407) 875-1776 Fax: (407) 875-0770 Email: court@lc.org Attorneys for Plaintiff-Appellant 6
Case: 16-16319 Date Filed: 10/25/2016 Page: 10 of 11 TIME-SENSITIVE DESIGNATION AND REQUEST FOR EXPEDITED CONSIDERATION Pursuant to 11th Cir. R. 27-1(b), Plaintiff-Appellant Justice Parker believes that the foregoing Motion is time sensitive, because its resolution will materially affect the nature, scope and content of his opening brief, which is currently due fifteen days from the date of this filing (i.e., on November 9, 2016). Accordingly, Justice Parker respectfully requests expedited consideration of this Motion. CERTIFICATE OF CONFERRAL Pursuant to 11th Cir. R. 27-1(a)(5), I hereby certify that, prior to filing the foregoing motion, I conferred with opposing counsel as to the relief sought herein. Counsel for Defendant-Appellees Judicial Inquiry Commission and its Chairman and Members indicated that they will oppose the relief requested. Counsel for Defendant-Appellee Attorney General Luther Strange indicated that he believes that the judgment of dismissal was correct as to him and remand is unnecessary, but will not file a separate opposition. /s/ Horatio G. Mihet Horatio G. Mihet Attorney for Plaintiff-Appellant 7
Case: 16-16319 Date Filed: 10/25/2016 Page: 11 of 11 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed electronically with this Court on October 25, 2016. Service will be effectuated by the Court s electronic notification system on all counsel of record. /s/ Horatio G. Mihet Horatio G. Mihet Attorney for Plaintiff-Appellant 8
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