Opinion
Civil Action No. 3:03-CV-3025-D.
April 6, 2005
MEMORANDUM OPINION AND ORDER
The magistrate judge recommends that this action by plaintiff Robert R. Wightman-Cervantes ("Wightman-Cervantes") against defendants State of Texas ("the State"), Bill Hill ("Hill"), and Judge Mark Nancarrow ("Judge Nancarrow") be dismissed based on the Younger abstention doctrine. After making an independent review of the pleadings, files, and records in this case and the November 5, 2004 findings and recommendation of the magistrate judge, the court adopts the recommendation in part, concluding that it should abstain under Younger from considering the claims against Hill and Judge Nancarrow, and holds that the State is entitled to dismissal based on Eleventh Amendment immunity. The court therefore dismisses the actions against all three defendants without prejudice by judgment filed today.
Younger v. Harris, 401 U.S. 37 (1971).
I
The court first considers Wightman-Cervantes' December 10, 2004 motion for leave to amend the pleadings, filed after the magistrate judge filed his findings and recommendation. In his proposed amended complaint, he seeks, inter alia, declaratory relief from the enforcement of Tex. Penal Code Ann. § 38.123 (Vernon 2003). Although the proposed amendment is Wightman-Cervantes' fifth amended complaint and was filed after the magistrate judge filed his findings and recommendation, the court in its discretion will grant leave to amend. The clerk of court is directed to file the amended complaint today. Because the court concludes that Wightman-Cervantes' suit should be dismissed pursuant to the Younger abstention doctrine, allowing him to amend will not unduly prejudice defendants.
Although it is titled his sixth amended complaint it is actually his fifth. The magistrate judge denied his November 4, 2004 motion for leave to amend pleadings on November 8, 2004.
II
Judge Nancarrow and the State, and Hill, filed motions to dismiss this suit under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The court referred the motions to the magistrate judge for recommendation. Judge Nancarrow and the State maintain that this case is now moot because, inter alia, Wightman-Cervantes pleaded guilty in the underlying state criminal case and has been disbarred by the Supreme Court of the United States. The State also contends that the court lacks subject matter jurisdiction over the claims against it because it enjoys Eleventh Amendment immunity.
According to the record, Wightman-Cervantes actually pleaded nolo contendere. Under Texas law, this plea is the equivalent of a guilty plea. See, e.g., Fleet v. State, 607 S.W.2d 257, 258 (Tex.Crim.App. 1979) ("A plea of nolo contendere is the equivalent to a plea of guilty." (citing Sowell v. State, 503 S.W.2d 793 (Tex.Crim.App. 1974))).
Because the court is addressing motions to dismiss following the magistrate judge's entry of his recommendation, it will not set out in detail the relevant background facts. Wightman-Cervantes was disbarred from practicing before all courts except the Supreme Court of the United States, which had not yet acted at the time he filed this suit. The Supreme Court ultimately disbarred him as well.
A
The court will first consider defendants' mootness arguments. "[T]o qualify as a case for federal court adjudication, a case or controversy must exist at all stages of the litigation, not just at the time the suit was filed." Bayou Liberty Ass'n v. United States Army Corps of Eng'rs, 217 F.3d 393, 396 (5th Cir. 2000) (citing Harris v. City of Houston, 151 F.3d 186, 189 (5th Cir. 1989)); see Bauer v. State of Texas, 341 F.3d 352, 358 (5th Cir. 2003). "`In general, a matter is moot for Article III purposes if the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.'" McCorvey v. Hill, 385 F.3d 846, 849 (5th Cir. 2004) (quoting Sierra Club v. Glickman, 156 F.3d 606, 619 (5th Cir. 1998)), cert. denied, ___ U.S. ___, 125 S.Ct. 1387 (2005). "If a dispute has been resolved, or if it has evanesced because of changed circumstances, it is considered moot." La. Envtl. Action Network v. United States Envtl. Protection Agency, 382 F.3d 575, 581 (5th Cir. 2004) (citing Am. Med. Ass'n v. Bowen, 857 F.2d 267 (5th Cir. 1988)). Even if existing factual circumstances favor a finding of mootness, a court may still maintain jurisdiction if (1) "the official action being challenged is capable of repetition, yet evading review," (2) "the defendant has voluntarily ceased the challenged activity to avoid judicial resolution and there is a reasonable possibility that the challenged conduct will resume," or (3) "the mooted issue still has collateral or future consequences." Tex. Office of Pub. Util. Counsel v. FCC, 1832 F.3d 393, 414 n. 17 (5th Cir. 1999) (citations and internal quotation marks omitted). Additionally, as long as some aspect of a case still presents a justiciable case or controversy, the court maintains jurisdiction even though other aspects of the case have become moot. See La. Envtl. Action Network, 382 F.3d at 581 (noting mootness exception where "some issues of a case have become moot but the case as a whole remains alive because other issues have not become moot." (internal quotation marks omitted)).The court looks to the relief that Wightman-Cervantes seeks to determine whether his case has become moot. Wightman-Cervantes is only seeking injunctive and declaratory relief. He requests an order enjoining the enforcement of Tex. Penal Code Ann. § 38.122 (Vernon 2003) and the criminal proceeding before Judge Nancarrow involving a charge against him under this statute. Wightman-Cervantes requests a declaratory judgment that Tex. Penal Code Ann. §§ 38.122 and 38.123 (Vernon 2003) are void as violating his rights to free speech, to equal protection of the law, and to hold himself as an attorney pursuant to Article III of the Constitution. He also seeks a declaratory judgment that Judge Nancarrow denied him a right to a fair and impartial trial, an injunction preventing Judge Nancarrow from taking further action in this matter, and any other relief the court may deem proper.
Wightman-Cervantes' request for a declaration that § 38.123 is unconstitutionally void presents a justiciable case or controversy. Wightman-Cervantes pleaded nolo contendere to, and was ultimately convicted of, the unauthorized practice of law under this statute. He contends that, as a result of his conviction, his new chosen career as a teacher is subject to impairment. He avers that he has been informed by a school district that he may not substitute teach because of his conviction. This collateral consequence of his conviction allows the court to maintain jurisdiction over his suit. Thus because at least one aspect of his lawsuit presents a case or controversy, the case is not moot.
B
It is well established that a state is immune from suit brought by one of its citizens in federal court. See, e.g., Sherwinski v. Peterson, 98 F.3d 849, 851 (5th Cir. 1996) ("[A]n unconsenting state is immune from suits brought in federal courts by her own citizens as well as by citizens of another state." (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)). There are two recognized exceptions to this rule. "First, a state's Eleventh Amendment immunity may be abrogated when Congress acts under § 5, the Enforcement Clause of the Fourteenth Amendment. Second, a state may consent to suit in federal court." Pace v. Bogalusa City Sch. Bd., ___ F.3d ___, 2005 WL 546507, at *3 (5th Cir. Mar. 8, 2005) (en banc) (emphasis omitted). Wightman-Cervantes has not shown that either of these exceptions applies. Accordingly, the State is immune from suit in this court, and the action against it is dismissed without prejudice.
II
The court next determines whether it should abstain under Younger.
A
In Younger "the Supreme Court established a policy whereby federal intervention in ongoing state criminal proceedings is barred absent extraordinary circumstances." Musslewhite v. State Bar of Tex., 32 F.3d 942, 947 (5th Cir. 1994). "Under the broad proscriptions of [ Younger] and its companion cases, a federal district court presumptively must abstain from granting either injunctive or declaratory relief when state criminal actions . . . are pending against the federal plaintiff at the time that federal action is commenced." DeSpain v. Johnston, 731 F.2d 1171, 1175 (5th Cir. 1984) (footnotes omitted).
The Younger principle of abstention is based upon considerations of comity and federalism and the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.Nobby Lobby, Inc. v. City of Dallas, 767 F. Supp. 801, 805 (N.D. Tex. 1991) (Sanders, J.) (quoting Younger, 401 U.S. at 43-44) (internal quotation marks and citation omitted), aff'd, 970 F.2d 82 (5th Cir. 1992). Younger abstention is appropriate if "(1) the dispute [involves] an `ongoing state judicial proceeding,' (2) an important state interest in the subject matter of the proceeding [is] implicated, and (3) the state proceedings . . . afford an adequate opportunity to raise constitutional challenges." Tex. Ass'n of Bus. v. Earle, 388 F.3d 515, 519 (5th Cir. 2004) (citing Wightman v. Tex. Supreme Ct., 84 F.3d 188, 189 (5th Cir. 1996)). A federal court may refuse to abstain and grant the requested equitable relief if
(1) the state court proceeding was brought in bad faith or with the purpose of harassing the federal plaintiff, (2) the state statute is "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," or (3) application of the doctrine was waived.Id. (quoting, inter alia, Younger, 401 U.S. at 53-54, and DeSpain, 731 F.2d at 1180).
B
The court must first determine whether Younger applies based on the facts of this case. In deciding whether the dispute involves an "ongoing state judicial proceeding," the court's point of reference is the date suit was filed. See DeSpain, 731 F.2d at 1178 ("The initial frame of reference for abstention purposes is the time that the federal complaint is filed. If a state action is pending at this time, the federal action must be dismissed."). Additionally, "[t]he state interest that is triggered by the institution of the state proceeding continues through the completion of the state appeals process," and, as a result, "the Younger doctrine requires that federal courts abstain when a state proceeding is pending and the state appellate procedure has not been exhausted." Id. at 1177-78.
This case involved Wightman-Cervantes' ongoing state criminal proceedings at the time it was filed. Not only did he request that the court enjoin the criminal proceedings, he specifically sought, and still seeks, declaratory and injunctive relief from the state statute under which he was originally charged (§ 38.122). He also continues to seek a declaration that Judge Nancarrow's actions denied him the right to a fair trial and an injunction preventing Judge Nancarrow from taking further action. Moreover, despite the fact that his criminal proceedings before Judge Nancarrow ended when he pleaded nolo contendere to a violation of § 38.123 (unauthorized practice of law), there is an ongoing state criminal proceeding because his appeal from his conviction appears still to be pending. This case continues to bear upon the proceedings because, inter alia, Wightman-Cervantes now seeks a declaration that the statute under which he was convicted is void.
The court has confirmed from its review of the appeals court's website that the appeal is pending.
The court must also consider whether his underlying criminal prosecution implicated an important state interest. In his objections to the magistrate judge's recommendation, Wightman-Cervantes disputes the existence of an important state interest. He argues that to find this requirement satisfied, the court would have to conclude that the State has an interest in regulating the practice of law in federal court. He argues that this would turn the notion of comity on its head. His argument is unavailing.
Notably, in this case, it does not appear that the State prosecuted Wightman-Cervantes for, or that he pleaded nolo contendere based on, practicing law in a case pending before the Supreme Court of the United States or the United States Court of Appeals for the Tenth Circuit, the only two federal bars to which he was admitted at the time he was indicted. Without suggesting that this would make a difference in the court's reasoning, it undercuts his contention that the State lacks an important interest in prosecuting him.
Wightman-Cervantes' prosecution involves two important state interests. First, the State has an important interest in regulating the practice of law within its borders. See Sperry v. Florida ex rel. Fl. Bar, 373 U.S. 379, 383 (1963) ("Nor do we doubt that Florida has a substantial interest in regulating the practice of law within the State[.]"); Hensler v. Dist. Four Grievance Comm. of State Bar, 790 F.2d 390, 392 (5th Cir. 1986) (recognizing that State of Texas "has an obvious and compelling interest in regulating the practice of law[.]"); Simmang v. Tex. Bd. of Law Exam'rs, 346 F. Supp. 2d 874, 888 n. 14 (W.D. Tex. 2004) (recognizing that State of Texas has "legitimate interest in its regulation of persons authorized to practice law."); State Unauthorized Practice of Law Comm. v. Paul Mason Assocs., 159 B.R. 773, 777 (N.D. Tex. 1993) (Kendall, J.) (recognizing "the State of Texas's `substantial interest in regulating the practice of law within the State.'" (quoting Sperry, 373 U.S. at 383)). Additionally, "[t]he state has a strong interest in enforcing its criminal laws." De Spain, 731 F.2d at 1176. Thus, as the magistrate judge observed, the State undisputably has an important interest in enforcing criminal statutes that prohibit the practice of law by unlicensed persons.
In neither his response to defendants' motions to dismiss nor in his objections to the magistrate judge's recommendation does Wightman-Cervantes argue that his state proceedings provide an inadequate opportunity to raise his constitutional challenges. "To overcome the presumption in favor of abstention, the federal plaintiff must show that he had no opportunity to litigate the federal issue in state court." De Spain, 731 F.2d at 1178. Wightman-Cervantes has not adequately shown that he is unable to raise his constitutional arguments in his state criminal proceedings.
The court therefore concludes, as did the magistrate judge, that Younger applies.
C
The court must now determine whether this case warrants the exercise of jurisdiction despite Younger's applicability.1
Construing liberally Wightman-Cervantes' objections to the magistrate judge's recommendation, he appears to assert two reasons why the court should not abstain. First, he intimates that he will suffer irreparable injury. He quotes Sheridan v. Garrison, 415 F.2d 699, 707 (5th Cir. 1969), for the proposition that, "in cases where a person threatened by a bad-faith prosecution that suppresses first amendment freedoms must defend the suit in order to vindicate his rights, he has no adequate remedy at law, and the assumption underlying the principle of comity, which is that state courts can adequately protect federal rights, consequently disappears." Objs. At 2. After this quotation, he then asks whether he has a First Amendment right to hold himself out as a lawyer admitted to federal practice.
Even if the court were to determine that the threat of irreparable injury counseled against abstaining, Wightman-Cervantes is not now threatened with irreparable injury based on the suppression of his First Amendment rights. Even assuming arguendo that he once had a First Amendment right to hold himself out as a lawyer admitted to practice before a limited number of federal courts, any such right is now foreclosed by his disbarment by the federal courts before which he was once admitted to practice. In his complaint, Wightman-Cervantes alleges that, at the time he was indicted, he was admitted to the bar of the United States Court of Appeals for the Tenth Circuit and the Supreme Court of the United States. He lost the right to practice before the Tenth Circuit on October 6, 2003, before he filed this suit on December 19, 2003. He was disbarred by the Supreme Court in March 2004. See In re Disbarment of Robert R. Wightman-Cervantes, 541 U.S. 958 (2004). Accordingly, because he is no longer entitled to practice law before any federal court, he is no longer in danger of suffering imminent injury from the denial of rights that stem from his membership in the bar of a federal court.
See In re Wightman-Cervantes, No. 03-830 (10th Cir. Oct. 6, 2003).
2
Second, Wightman-Cervantes appears to argue that his criminal prosecution was pursued in bad faith. The magistrate judge scheduled an evidentiary hearing to provide him an opportunity to present evidence to establish this claim. The magistrate judge denied Wightman-Cervantes' request for a continuance and ordered him to attend the hearing. In his order denying the continuance motion, the magistrate judge explained that the factual basis for Wightman-Cervantes' bad faith claims was not entirely clear from his pleadings. He stated that he would give him the opportunity to proffer facts in support of his claim and, if Wightman-Cervantes concluded that he needed to conduct formal discovery, he could reurge his motion for continuance immediately before the scheduled hearing. In his recommendation, the magistrate judge explains that the day before the hearing, he received from Wightman-Cervantes a brief in opposition to the hearing and an unsigned motion for continuance, and he did not appear for the hearing. Based apparently on Wightman-Cervantes' failure to present evidence or make an offer of proof to support his bad faith claim, the magistrate judge held Younger's bad faith exception inapplicable, observing that the court was left with nothing more than unsubstantiated accusations. Wightman-Cervantes objects to the magistrate judge's recommendation insofar as based on his failure to attend the evidentiary hearing. He appears to argue that the facts supporting his bad faith allegation are undisputed, and that requiring him to present evidence on undisputed facts to survive a motion to dismiss misapplies the proper standards under Rule 12(b)(1) or 12(b)(6).
If the circumstances required for Younger's application are present, the decision whether to abstain based upon Younger is within the court's discretion. See Tex. Ass'n of Bus., 388 F.3d at 518 (explaining that Fifth Circuit engages in de novo review in determining whether abstention doctrine's requirements are satisfied, and, if they are, it reviews district court's decision to abstain for abuse of discretion). As the magistrate judge recognized, "the `bad faith' exception is narrow and should be granted parsimoniously." Hefner v. Alexander, 779 F.2d 277, 280 (5th Cir. 1985). Wightman-Cervantes has the burden of showing that the exception applies. See Stewart v. Dameron, 460 F.2d 278, 279 (5th Cir. 1972) (recognizing that "the plaintiff has a heavy burden to establish either prosecutorial bad faith or harassment[.]"); Stewart v. Dameron, 448 F.2d 396, 397 (5th Cir. 1971) (holding that district court erred in placing burden of proof on defendants to show good faith prosecution). In exercising its discretion to abstain under Younger, the court need not limit itself to the allegations in plaintiff's complaint. Evidentiary hearings are properly convened, if not in some instances required, in deciding whether to abstain. See Hefner, 779 F.2d at 278-80 (concluding district court did not err in ruling that plaintiff had "not carried his burden of proving that the defendants had conducted their investigations with impermissible motivations" after district court conducted hearing on issue of bad faith subsequent to filing of motion to dismiss); Stewart, 448 F.2d at 397 (vacating district court decision reached after evidentiary hearing and remanding for court to conduct another evidentiary hearing "in which plaintiff shall be allowed to introduce evidence regarding his allegations of bad faith prosecution and harassment."). Because Wightman-Cervantes failed to attend the scheduled evidentiary hearing, he did not meet his burden of showing that Younger's bad faith exception applies. Moreover, there is nothing in the record that persuades the court that, were he given another opportunity to do so, he could demonstrate that the court should invoke the bad faith exception, particularly given the heavy burden of making such a showing. Accordingly, the court holds that abstention is appropriate under the circumstances of this case and dismisses this case without prejudice as to Judge Nancarrow and Hill.
The magistrate judge properly ordered an evidentiary hearing convened, and the court is correctly deciding the abstention question based on the outcome of the hearing rather than upon the allegations of Wightman-Cervantes' amended complaint. See, e.g., Trower v. Maple, 774 F.2d 673, 674 (5th Cir. 1985) (noting that circuit court had vacated and directed district court to hold hearing on whether state prosecution was conducted in good faith, and that district court on remand had concluded after evidentiary hearing that plaintiffs failed to show bad faith and ordered dismissal).
* * *
The State is immune from suit under the Eleventh Amendment, and the action against it is dismissed without prejudice. The court abstains under Younger from the actions against Judge Nancarrow and Hill, and it dismisses the actions against them without prejudice.
In view of the court's decision, Wightman-Cervantes' pending motions to compel mediation and for a rehearing on evidence are denied.
SO ORDERED.