FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 15, 2001

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________

No. 00-14137

____________________________

D. C. Docket No. 00-00976 CV-D-N

ROBERT BUTLER,

W. THOMAS GAITHER, et al.

Plaintiffs-Appellees,

versus

THE ALABAMA JUDICIAL INQUIRY COMMISSION,

RANDALL L. COLE, in his official capacity,

Defendants-Appellants.

__________________________________________

Appeal from the United States District Court

for the Middle District of Alabama

__________________________________________

(August 15, 2001)

Before EDMONDSON, HILL and GIBSON, Circuit Judges.
2

EDMONDSON, Circuit Judge:

This case returns to our court after we certified some questions to the

Alabama Supreme Court. See Butler v. Alabama Judicial Inquiry Comm., 245

F.3d 1257 (11th Cir. 2001) (Butler I). Based on the Alabama Supreme Court’s

response to the certified questions, we conclude that some of the claims are moot

and that the district court should have abstained from deciding the remaining

claims.

I. Background

Justice Harold F. See, Jr., a member of the Supreme Court of Alabama,

challenged in federal court the constitutionality of two canons of the Alabama

Canons of Judicial Ethics under which he had been charged. On appeal from the

grant of a preliminary injunction against the Alabama Judicial Inquiry Committee

(“JIC”), we considered the JIC’s request that the federal courts abstain -- under

Younger v. Harris, 91 S. Ct. 746 (1971) -- from ruling on the federal constitutional

issues.

We were unable to determine with certainty whether Alabama procedural

law provided an adequate state forum in which Justice See could raise his
3

constitutional objections. So, we certified questions to the Supreme Court of

Alabama, asking for their assistance to help us understand Alabama procedural

law. We noted that the state supreme court also could “remedy federal

constitutional defects, if any, that it may find in the judicial canons challenged by

Justice See.” Butler I, 245 F.3d at 1266 n.9.

The Supreme Court of Alabama consented to the certification and responded

quickly, addressing the federal constitutional issues raised by Justice See. See

Butler v. Alabama Judicial Inquiry Comm’n, ___ So. 2d ___ (Ala. 2001) (Butler

II). The state court concluded that Canon 7B(2) was facially unconstitutional

because it was “not narrowly tailored to serve the state’s compelling interest in

protecting the integrity of the judiciary.” Id. at ___. The state court also narrowed

Canon 7B(2) to apply only to dissemination of “demonstrably false information

concerning a judicial candidate or an opponent ‘with actual malice.’” Id. at ___

(quoting New York Times Co. v. Sullivan, 84 S. Ct. 710, 726 (1964)). In addition,

the state court concluded that Canon 2A did not apply to “a candidate’s conduct

with reference to speech by the candidate or the unrepudiated statement of an

aide.” Id. at ___. 

Because the Alabama Supreme Court addressed some of Justice See’s

constitutional objections to the challenged canons, the state court deemed two of
4

the certified questions moot and declined to answer the third certified question. As

part of a dissenting opinion, Justice Houston responded directly to our certified

questions.

In the light of the Alabama Supreme Court’s response to our certified

questions, we ordered the parties to submit supplemental briefing on the issue of

mootness. Our order also required the parties “to confer and to consider the

practical implications of the Alabama Supreme Court’s decision, including the

option of a consensual dismissal.” The parties conferred but did not agree to

consensual dismissal of the federal case.

II. Mootness

In considering the constitutionality of the challenged ethics canons, the

Alabama Supreme Court effectively amended portions of the pertinent ethics

canons. “Where a law is amended so as to remove its challenged features, the

claim for injunctive relief becomes moot as to those features.” Naturist Soc’y, Inc.

v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992). In Fillyaw, we concluded that the

case was not entirely moot -- even though the challenged regulations were
 1

We are reviewing Justice See’s federal complaint for mootness. Some of the charges pending

against Justice See at the Alabama Court of the Judiciary may or may not be moot. That

determination is one for the Court of the Judiciary to make.

 2Before the Alabama Supreme Court’s narrowing of Canon 7B(2), the Canon said that candidates

for judicial office shall not:

Post, publish, broadcast, transmit, circulate, or distribute false information concerning a

judicial candidate or an opponent, either knowing the information to be false or with reckless

5

amended in part -- because other “challenged aspects of [the regulatory] scheme

remain[ed] essentially as they were before the amendments.” Id. 

We likewise conclude that, in this case, the Alabama Supreme Court’s

changes to the pertinent judicial canons mooted some (but not all) of Justice See’s

federal challenges.1

A.

In Count One of the federal complaint, Justice See asserted a facial

challenge to Canon 7B(2). The Alabama Supreme Court, however, “narrow[ed]

Canon 7B(2) to provide that a candidate for judicial office shall not disseminate

demonstrably false information concerning a judicial candidate or an opponent

with actual malice

 -- that is, with knowledge that it [is] false or with reckless disregard of whether it

[is] false or not.”2

 Butler II, ___ So. 2d at ___ (quoting New York Times Co. v.
disregard of whether the information is false; or post, publish, broadcast, transmit, circulate,

or distribute true information about a judicial candidate or an opponent that would be

deceiving or misleading to a reasonable person.

 3At the hearing on Justice See’s motion for a preliminary injunction and the JIC’s motion to

dismiss, the district judge asked Justice See’s counsel if he “argue[d] with [the first clause] of the

canon.” Counsel responded “No.” R. 2-30.

6

Sullivan, 376 U.S. 254, 280 (1964). This change in Canon 7B(2) effectively

eliminated from the Canon the second clause -- which prohibited true material --

but left intact the first clause of Canon 7B(2) to mirror the standard articulated in

Sullivan. And our review of the record indicates to us that counsel for Justice See

conceded that the first clause of Canon 7B(2) was facially constitutional.3

 So,

Count One of Justice See’s complaint (challenging the second clause of Canon

7B(2) as facially unconstitutional) is moot.

B.

In counts two and four, Justice See asserted as-applied challenges to Canon

7B(2). In count two, Justice See alleged that the Canon precluded a candidate like

him “from making factual misstatements during the course of a political campaign

when the judicial candidate is unaware of an inaccuracy.” In count four, Justice

See alleged that the Canon precluded him “from making truthful statements or
 4

We recognize that the JIC has been enjoined, by a federal district judge, from proceeding with

the state charges against Justice See. Thus, the JIC has not had the opportunity to amend its

complaint, if it chose to do so, in the light of the Alabama Supreme Court’s ruling.

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from making statements that he believes to be truthful during the course of a

political campaign.”

Despite the Alabama Supreme Court’s decision interpreting and modifying

the pertinent canons, the charges against Justice See based on Canon 7B(2) remain

pending in the Alabama Court of the Judiciary.4

 And Justice See maintains his

federal constitutional objections to the JIC charges; he says that applying Canon

7B(2), as narrowed by the Alabama Supreme Court, to truthful statements made by

Justice See’s campaign violates the First Amendment. Therefore, a “live” case or

controversy exists on Justice See’s as-applied challenges to Canon 7B(2).

C.

In count three, Justice See asserted an as-applied challenge to Canon 2A. 

The Alabama Supreme Court interpreted Canon 2A as inapplicable to the conduct

alleged by the JIC in its complaint against Justice See. So, Justice See’s challenge

to Canon 2A is moot.
8

D.

In count five, Justice See challenged section 6.19 of Alabama Constitutional

Amendment No. 328 as applied to him. Section 6.19 disqualifies a judge from

acting as judge when a complaint is filed against him by the JIC. The Alabama

Supreme Court declined to answer the certified question about section 6.19 and

provided us with no interpretation or insight about this state constitutional

provision. Because the JIC’s complaint against Justice See remains pending with

the Alabama Court of the Judiciary, Justice See remains subject to disqualification. 

Justice See claims that the threat of disqualification for engaging in political speech

violates the First Amendment. Thus, count five is not moot.

III. Younger abstention

While the Alabama Supreme Court’s opinion did help us to understand

better the pertinent judicial canons, the state opinion does not address the

procedural questions: questions we had asked about whether an adequate

opportunity to raise constitutional challenges exists in the ongoing state

proceeding. In Butler I, we contemplated that the Alabama Supreme Court might
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not answer our questions and explained that we would rule on the abstention issue

without the benefit of the state court’s insight, if necessary. 245 F.3d at 1266. We

place no significance on the fact that the Alabama Supreme Court chose not to

respond directly to our questions. That high court did its duty as it saw it; now, we

must do our duty.

In Butler I, we said that “Justice See bears the burden to establish that the

state procedures are inadequate.” 245 F.3d at 1262 (emphasis in original). We

said “[m]inimal respect for the state processes, of course, precludes any

presumption that the state courts will not safeguard federal constitutional rights.” 

Id. (emphasis in original) (quoting Middlesex County Ethics Comm. v. Garden

State Bar Assoc., 102 S. Ct. 2515, 2521 (1982)). So, we start with the belief that

state courts are commonly able to address federal constitutional challenges

adequately. The federal plaintiff, having failed to raise his federal claims in the

ongoing state proceeding, must overcome this premise by demonstrating

inadequate state remedies. Justice See has failed to satisfy his burden in this case.

In our earlier opinion, we set out some ways in which we thought Alabama

procedural law might allow Justice See to raise his federal constitutional objections

in the state court proceeding. Butler I, 245 F.3d at 1263-64. Justice Houston, the

only Alabama Supreme Court justice to answer directly our certified questions, has
 5

Justice See, citing Ex parte Smith, 683 So.2d 431 (Ala. 1996), argues that because the Court of

the Judiciary includes lay members, who are deemed incompetent to adjudicate First Amendment

questions under Alabama law, the Court of Judiciary could not consider constitutional challenges.

We think Smith is not persuasive, because the administrative review panel in Smith is too different

from the Court of the Judiciary.

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confirmed that, at least in his view, federal constitutional objections can be raised

and decided in a Court of the Judiciary proceeding. See Butler II, ___ F.3d at ___

(Houston, J. dissenting). We recognize Judge Houston’s views were delivered in a

dissent, in which no other justice joined; therefore, his views create no binding

interpretation of Alabama law and might not represent a majority of the Alabama

Supreme Court’s understanding of state procedural law. Nonetheless, his

observations about Alabama procedural law were not contested by other Justices. 

And as a member of the state’s highest court, which is charged with promulgating

the rules of procedure, see Ala. Code § 12-2-7(4), Justice Houston’s reasoned

opinion corroborates our view that an adequate state forum likely exists. Neither

the parties nor a majority of the Alabama Supreme Court has given us additional

reasons to doubt the availability of state methods of redress.5

 

Without authoritative guidance from the Alabama Supreme Court, we do not

know for certain that these procedures -- suggested by us in Butler I and by Justice
 6

Younger abstention often involves a level of uncertainty. Because the federal plaintiff decided

to proceed in federal court instead of raising the federal issues in the ongoing state proceeding,

sometimes we do not know, for certain, how the state court would have responded to the federal

issues if properly raised in the state court by that particular federal plaintiff. See Pennzoil Co. v.

Texaco, Inc., 107 S.Ct. 1519, 1528 (1987) (internal citation omitted) (“We cannot assume that state

judges will interpret ambiguities in state procedural law to bar presentation of federal claims.

Accordingly, when a litigant has not attempted to present his federal claims in related state-court

proceedings, a federal court should assume that state procedures will afford an adequate remedy, in

the absence of unambiguous authority to the contrary.”).

 7We understand that, in this particular case, the Alabama Supreme Court considered Justice See’s

federal constitutional issues only after Justice See came to federal court and after we certified

questions to the state court. But this procedural route does not preclude the existence of other

procedural routes that may exist in state court without federal court interference. 

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Houston in his dissent-- will be available to Justice See. But, in the interest of

comity and federalism, we err -- if we err at all -- on the side of abstaining.6

 

Abstention is appropriate here, in part, because the Alabama Supreme

Court’s speedy and competent response dispels some of the district court’s

concerns about not abstaining.7

 See Middlesex, 102 S. Ct. at 2523 (noting that

federal court may consider subsequent developments in state court when making

Younger determination). The state court’s quick response in addressing the

difficult federal constitutional questions, instead of answering our procedural

questions so that we could decide whether to consider the constitutional issues,

also indicates, to us, that the state court has an interest in and is capable of quickly

resolving constitutional challenges to state judicial canons.
 8

Justice See also argues that even if adequate state proceedings exist, abstention is inappropriate

upon a showing of irreparable injury. We rejected that argument in Butler I and will say nothing

more about it here. See Butler I, 245 F.3d at 1264-65.

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Based on these facts, we conclude that Justice See has failed to establish that

state procedures could not adequately address his federal constitutional

challenges.8

 As a result, Younger abstention is appropriate here, and the district

court erred in not granting the JIC’s motion to dismiss. 

Therefore, we VACATE the district court’s preliminary injunction and

REMAND with instructions to dismiss the federal action.