Dutton v. Shaffer

1

DONNA DUTTON, Plaintiff v. HON. JIMMY SHAFFER, et al. Defendants.

CIVIL No. 3:23-cv-00039-GFVT

United States District Court, E.D. Kentucky, Central Division, Frankfort

September 15, 2023

OPINION & ORDER

GREGORY F. VAN TATENHOVE, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Plaintiff Donna Dutton's Motion for Preliminary Injunction. [R. 4.] While running for election, Judge Dutton gave a statement to a local newspaper. [R. 1 at 6.] The Kentucky Judicial Conduct Commission informed Judge Dutton that her statement may have violated the Code of Judicial Conduct. [R. 1-5.] Judge Dutton now asks the Court to prevent the Commission from bringing an enforcement action under the First Amendment. [R. 1.] But Judge Dutton won her election. Thus, she does not face a threat of imminent, irreparable harm. Her request for a preliminary injunction is DENIED.

I

Judge Dutton was a candidate for the 53rd Judicial Circuit in the 2022 election cycle. [R. 1 at 4.] Days before the election, a local Kentucky newspaper published an article focused on a previous suspension that Judge Dutton received. Id. at 6. The article included a response that Judge Dutton provided to the newspaper, where she attempted to explain the suspension. Id. She then won her election. Id.

Months later, the Defendants sent Judge Dutton a letter informing her that a complaint had been filed against her with the Commission. [R. 1-5.] The complaint alleged that Judge Dutton's response to the newspaper was false, and the letter invited her to respond to the complaint. Id. She did. [R. 1-6.] Attorneys for Judge Dutton and the Commission then began a discussion about the potential for settlement. [R. 10-5.] The Commission sent Judge Dutton a proposed agreed order that would settle the matter and welcomed proposed changes from Judge Dutton. Id. at 1. If agreed upon, the proposed agreed order would publicly reprimand Judge Dutton and state that she violated several portions of the Code of Judicial Conduct by responding to the newspaper article. [R. 10-4.]

Rather than proposing changes, Judge Dutton brought this action against the Defendants. [R. 1.] She now moves for an order enjoining the Defendants from initiating formal enforcement proceedings against her for her comments. [R. 4.] She argues that such formal proceedings would violate the First Amendment and cause her irreparable harm. Id. On the other hand, the Defendants argue that this Court must abstain from exercising jurisdiction over Judge Dutton's claims and allow the state process to continue. [R. 10.]

II

A preliminary injunction is an extraordinary remedy that should be granted only if the movant carries his or her burden of proving that the circumstances “clearly demand it.” Overstreet v. Lexington-Fayette Urban Cnty Gov't, 305 F.3d 566, 573 (6th Cir. 2002) (citing Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000)). The purpose of a preliminary injunction is to “preserve the relative positions of the parties until a trial on the merits can be held.” Robertson v. U.S Bank, N.A., 831 F.3d 757, 761 (6th Cir. 2016) (internal quotations omitted).

To obtain a preliminary injunction, the movant must show that (1) they have a strong likelihood of success on the merits (2) they are likely to suffer irreparable harm if the injunction is not issued, (3) the balance of equities favors an injunction, and (4) an injunction furthers the public interest. See Overstreet, 305 F.3d at 573. Yet when a party asserts that the Court should apply the Younger abstention doctrine, a court “must first address the Younger issue prior to engaging in any analysis on the merits of the case.” Kalniz v. Ohio State Dental Bd., 699 F.Supp.2d 966, 970 (S.D. Ohio 2010) (citing Tenet v. Doe, 544 U.S. 1, 6, n. 4 (2005) and Steel Co. v. Citizens for Better Env't., 523 U.S. 83, 100, n.3 (1998)). If Younger applies, a court “may not retain jurisdiction over the case.” See O'Neill v. Coughlan, 490 Fed.Appx. 733, 737 (6th Cir. 2012) (citing Juidice v. Vail, 430 U.S. 327, 348 (1977) (Stewart, J., dissenting)). The Defendants argue that Younger abstention applies here.

A

Abstention doctrines “promote harmony between the state and federal courts” and reflect the belief that “the state courts should be left to decide matters of unique importance to them.” Summit Cty. Crisis Pregnancy Ctr., Inc. v. Fisher, 830 F.Supp. 1029, 1032 (N.D. Ohio 1993). One abstention doctrine, Younger, “cautions federal courts against exercising jurisdiction in cases where they are asked to enjoin pending state proceedings.” Fowler v. Benson, 924 F.3d 247, 255 (6th Cir. 2019) (citing New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 364 (1989)).

Younger applies in only “three exceptional categories” of cases: (1) parallel, pending state criminal proceedings, (2) state civil proceedings that are akin to criminal prosecutions, and (3) state civil proceedings that implicate a state's interest in enforcing court orders and judgments. Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013). In all cases, there must be a state proceeding that was pending at the time that the action was filed in federal court. See Kelm v. Hyatt, 44 F.3d 415, 422 (6th Cir. 1995); Fed. Express Corp. v. Tenn. Pub. Serv. Com., 925 F.2d 962, 969 (6th Cir. 1991).

With nearly identical facts, the Sixth Circuit has held that no pending state proceeding existed. Winter v. Wolnitzek, 834 F.3d 681, 688 (6th Cir. 2016). In Winter, an individual running for a judicial election made various statements while campaigning that concerned the Judicial Conduct Commission. Id. at 686. The Commission sent her a letter informing her that a complaint had been filed against her and requesting that she respond to the allegations in writing. Id. at 687. The letter listed particular statements and alleged that they violated the Code of Judicial Conduct. Winter v. Wolnitzek, 186 F.Supp.3d 673, 679 (E.D. Ky. 2016). The Commission issued the letter after deciding that there was “probable cause for action.” Winter, 834 F.3d at 686. The plaintiff contacted the Commission and asked for additional details, but the Commission refused. Winter, 186 F.Supp.3d at 679. The Sixth Circuit held that “a finding of probable cause does not necessarily mean a formal proceeding exists,” and in the “absence of an ongoing enforcement action, Younger has no role to play.” Winter, 834 F.3d at 688.

Like in Winter, Judge Dutton made a statement that the Commission found concerning. [R. 1 at 6.] The Commission sent Judge Dutton a letter informing her that “a complaint has been filed against [her]” and “requested [she] file a written response to the allegations.” [R. 1-5.] The letter listed the particular statements Judge Dutton made and alleged that they violated the Code of Judicial Conduct. Id. The Commission issued the letter after determining that the complaint showed “a basis for investigation of a matter within the jurisdiction of the Commission.” Ky. R. Sup. Ct. 4.170(1). These are the same procedures as those in Winter. Thus, Winter dictates that no ongoing enforcement action existed at this point. Winter, 834 F.3d at 688.

Only, here, Judge Dutton responded to the allegations and the Commission proposed an agreed order to settle the matter. [R. 1 at 7-8; R. 1-7.] The proposed agreed order would have Judge Dutton stipulate to the violations and receive a public reprimand. [R. 1-7.] But Judge Dutton's response and the Commission's proposed agreed order are not sufficient to create an ongoing state proceeding. Neither a response nor a settlement offer moves the Commission's investigation out of the preliminary stage. See Ky. R. Sup. Ct. 4.170. Indeed, the Commission never initiated formal proceedings. See Ky. R. Sup. Ct. 4.180. Moreover, the Commission admits that “all parties understood” that the draft agreed order “was just that-a draft.” [R. 10 at 3.] It represented a starting point for negotiations before the Commission considered formal charges. See id. Therefore, like in Winter, no ongoing state proceedings exist. And in the “absence of an ongoing enforcement action, Younger has no role to play.” Winter, 834 F.3d at 688.

The Commission contends that if Judge Dutton faces a credible threat of enforcement sufficient to confer standing, then the Commission's “disciplinary process” is necessarily ongoing and Younger applies. [R. 10 at 14-15.] The Commission raised this argument in Winter as well. 834 F.3d at 688 (“If the plaintiffs have standing to raise these challenges and if they are ripe for resolution, the Commission maintains, that must be because the Commission has initiated formal proceedings against them.”). The Sixth Circuit rejected this argument. Id. (“But a finding of probable cause does not necessarily mean a formal proceeding exists.”). Accordingly, Younger does not prevent this Court from exercising jurisdiction over Judge Dutton's challenge. See Fowler, 924 F.3d at 255.

B

Judge Dutton requests an order preliminarily enjoining the Defendants from instituting formal proceedings while this action proceeds. [R. 4 at 20.] While the components of a preliminary injunction are generally “factors to be balanced,” it is “indispensable” that the movant show they are likely to suffer an irreparable harm without an injunction. Six Clinics Holding Corp II, 119 F.3d at 400; D.T. v. Sumner Cnty. Sch., 942 F.3d 324, 327 (6th Cir. 2019).

To constitute an irreparable harm, the movant must show a harm that is actual and immediate, not “speculative or theoretical.” D.T., 942 F.3d at 327 (citing Mich. Coal. of Radioactive Material Users, Inc. v Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991)). The harm must also be such that there is no adequate remedy at law. See ...