USCA1 Opinion

April 15, 1996

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________

No. 95-2129

TROY E. BROOKS,
Plaintiff, Appellant,

v.

NEW HAMPSHIRE SUPREME COURT, ET AL.,

Defendants, Appellees

__________________________

ERRATA SHEET
ERRATA SHEET

The

opinion

of

the court

issued

on

April

8, 1996,

is

corrected as follows:

Replace

footnote

4, page

6, to

read

in its

entirety as

follows:

Although several
discretion
cases,

standard

see, e.g.,
___ ____

courts have applied an

in

reviewing Younger
_______

Martin Marietta Corp. v.

______________________

Human Relations Comm'n, 38

_______________________

F.3d 1392, 1396

abuse of
abstention
Maryland
________
(4th Cir.

1994); O'Neil v. City of Philadelphia, 32 F.3d 785, 790

______
____________________
(3d

Cir. 1994), cert. denied,

_____ ______

115 S. Ct. 1355 (1995);

Ramos
_____

v. Lamm, 639 F.2d 559, 564 n.4 (10th Cir. 1980),

____

cert.
_____

denied, 450
______

U.S.

determining factor.
the

Younger
_______

context is

Where an attempt is made to

doctrine

circumstances, in a

1041 (1981),

under

oddly

way that threatens

the
apply

configured
the legitimate

interests of the national government,

then the federal

court

discretion,

may

exercise

modicum

of

and

appellate

review is for abuse of that discretion.

Chaulk Servs., Inc.

___________________
Cir.

1995).

majority
case

But

v. MCAD, 70
____
for

called the

at bar

is a

purposes

n.22,

and

prototype

discretion

that

does

Chaulk
______

which the

the Supreme

Court has

appellate

wheels by

the

(1st

of

Colorado River,
______________

intermediate

therefore, spinning

of what

"customary case"

spoken peremptorily, see

___
816

F.3d 1361, 1368

See
___

424 U.S.

at

courts

are,

probing for abuse

of a

not exist.

Nonetheless,

the

district court's findings of fact, in contradistinction

to

its

ultimate

applicability

vel
___

legal
non of
___

conclusion
the

as

to

Younger doctrine,
_______

evoke a more deferential standard of review.

the
may

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 95-2129

TROY E. BROOKS,

Plaintiff, Appellant,

v.

NEW HAMPSHIRE SUPREME COURT, ET AL.,

Defendants, Appellees.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

___________________

_________________________

Before

Selya, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Stahl, Circuit Judge.

_____________

_________________________

Philip T. Cobbin for appellant.

________________
Stephen J. Judge,
________________
whom

Senior Assistant

Jeffrey R. Howard,
__________________

Attorney General,

Attorney General,

appellees.

_________________________

April 8, 1996
_________________________

was

on brief,

with

for

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________

federal

and

state

governments

Balancing responsibility between

in

republic

that

assigns

interlocking sovereignty to each often requires federal courts to

walk an unsteady

tightrope.

From a federal court's perspective,

this special sort of judicial funambulism always

the spirit

of cooperative

need to avoid the

must proceed in

federalism tempered, however,

pitfalls inherent in blind deference

by the

to state

autonomy.

The

case

at

hand

responsibilities between federal

implicates

division

of

and state judicial systems

but

does not require us to walk a very high wire.

on solid

ground, previously paved

Court, and apply

and legal

terrain

exercise persuades

in

We need only tread

by the United

the Court's teachings

that underlies

the

this

States Supreme

to the peculiar

appeal.

factual

Because

that

us that the district court performed its task

step with the principles

enunciated by the

the order from which the plaintiff appeals.

Court, we affirm

I.
I.

BACKGROUND
BACKGROUND

We supply a thumbnail sketch of the relevant facts.

1992,

plaintiff-appellant Troy

member

of

the

New

Hampshire

relationship during a

husband.

Bodwell

late 1992, but the

E. Brooks

bar,

and Erica

engaged

in

In

Bodwell, a

an

intimate

period when Bodwell was separated from her

became pregnant.

She obtained

a divorce

in

final decree made no provision for her unborn

child.

Bodwell gave birth

to a

son in February

of 1993

and

subsequently initiated

a paternity suit against

she maintained that he

was the boy's biological father.

acknowledged paternity and the

Brooks in which

Brooks

court entered a provisional order

covering matters such as support, custody, and visitation.

Shortly thereafter,

husband, moved to discontinue

on the

fact that

the child

Bodwell

reconciled with

her

ex-

the paternity action, and, relying

was conceived while

she was

still

married,

sought refuge in the presumption of legitimacy.

objected

to the proposed dismissal of the paternity suit and set

out to

confirm his

legal status

as the

boy's

father.

Brooks

After

numerous skirmishes

Brooks

concerning

filed complaints

Professional

attorneys,

with

paternity (not

the New

Conduct Committee

including Erica

(the

relevant

Hampshire Supreme

Committee)

Bodwell, accusing

against

them

their handling of the paternity

The

the

dismissed

complaints

after

Court

three

of flouting

various ethical canons in

Committee

here),

suit.

conducting

an

investigation.

Brooks

both the

then sought to put to use in the paternity suit

fact that a disciplinary complaint

against Erica

Bodwell and

privy during

the course of

efforts were

thwarted by

knowledge

certain evidence

See
___

to which

he became

the Committee's investigation.

a rule

obtained during

proceedings.

had been instituted

N.H. Sup.

His

prohibiting the disclosure

the course

of attorney

Ct. R. 37(17)(a)

of

disciplinary

(1984).1

Brooks

____________________

1The
relevant

rule
here,

involving

in

effect

provided

allegations

of

at

the

that

all

attorney

time,

with exceptions

records

and

misconduct

not

proceedings
"shall

be

retorted by filing a pro se petition in the New Hampshire Supreme

___ __

Court

(the

abridged

NHSC) in

which

he

contended that

Rule

37(17)(a)

his First Amendment right to free speech and asked that

the rule be invalidated.

On March 23, 1995, the NHSC agreed to entertain Brooks'

petition.

The court

scheduled briefing and oral argument

(with

the proviso that all matters connected with the proceeding remain

confidential).

Brooks then

filed a brief

on his behalf.

retained counsel, Philip Cobbin, who

The court accepted the

paper record once Brooks and his attorney refused to

in oral

arguments behind closed doors.

The case has

case on a

participate

yet to be

decided.

After the

matter

had

been

taken

Brooks, acting as his own attorney, sued the

under

advisement,

members of the NHSC

and of the Committee (and others, for good measure, including the

state bar association) in New Hampshire's federal district court.

His complaint

sought declaratory and injunctive

relief aimed at

halting the enforcement of

Rule 37(17)(a).

anticipatory

disregard of that rule,

NHSC's order

(agreeing to

camera)

to

subsequently

his

amounted to

he attached a

copy of the

entertain his

federal

entered an

In what

court

petition, but

complaint.

appearance

only in

Attorney

Cobbin

in the

federal

N.H. Sup.

Ct. R.

for Brooks

____________________

confidential
37(17)(a).
proceedings

and

be disclosed."

The same rule also provided that "participants in the

shall

confidentiality
"[v]iolation

shall not

conduct

mandated

themselves
by

this

so as
rule,"

to

maintain

the

and

warned

that

of this duty shall constitute an act of contempt of

the supreme court."

N.H. Sup. Ct. R. 37 (17)(g).

court and

freeze

moved for

preliminary injunction

the paternity suit until

Brooks' constitutional

designed (a)

the federal court

claim, (b) to

to

had ruled on

force the NHSC

to dismiss

Brooks' petition without prejudice, and (c) to prevent that court

from exercising its contempt

Brooks.

Without

record, Attorney

powers under Rule 37(17)(g) against

requesting the

district

to

seal the

Cobbin included in the motion a copy of a brief

filed in the confidential proceeding.

promptly directed

court

Not surprisingly, the NHSC

the Committee to determine

had violated Rule 37(17)(a).

whether the lawyer

The

injunction.

district

court

The court reasoned

the NHSC called into

refused

to

issue a

that the proceeding

preliminary

pending in

play the doctrine of Younger v. Harris, 401

_______
______

U.S. 37 (1971); that Brooks' claim implicated

an important state

interest, namely, the administration of the attorney disciplinary

system; that Brooks

could obtain a full and fair

hearing on his

federal constitutional claim before the state tribunal; and that,

therefore, the Younger doctrine

_______

granting the requested relief.

II.
II.

disabled the district court from

This appeal ensued.2

STANDARD OF REVIEW
STANDARD OF REVIEW

Technically, this

is an appeal

from the

denial of

____________________

2Following

oral

argument

on

this

appeal,

the

NHSC

substantially revised Rule 37(17).

March

7,

1996 &

appendices.

See N.H. Sup. Ct.,

___

The

amendments take

Order of

some steps

toward meeting Brooks' objections by relaxing the confidentiality

restrictions

applicable

to

But because the amendments

Order

specifically

attorney disciplinary

proceedings.

are without retroactive effect

provides

that

the

amendments

the

shall

effective as to complaints filed on or after March 7, 1996

be

they

have no significant impact on this appeal.

preliminary

decision

injunction,3

assuming

that

and

it

therefore

applied

the

the

lower

appropriate

court's

legal

standard

ordinarily

demonstrates an

Henderson,
_________

abuse

984 F.2d

applies, however,

must

of

11,

stand

discretion.

12-13 (1st

abstention is

Water Conserv. Dist.

____________________

unless

See,
___

Cir.

e.g.,
____

1993).

mandatory,

v. United States, 424 U.S.

______________

(7th Cir. 1994);

appellant

Weaver
______

If

v.

Younger
_______

see Colorado River

___ _______________

(1976); Trust & Investment Advisers, Inc. v.

___________________________________

290, 293-94

the

Fresh Int'l Corp.

_________________

800, 816

n.22

Hogsett, 43
_______

F.3d

v. Agricultural
____________

Labor Relations Bd., 805 F.2d 1353, 1356 n.2 (9th Cir. 1986), and
___________________

we must

review de

novo the

whether

the requirements

for

essentially legal

abstention have

determination of

been met.

e.g., Trust & Investment Advisers, 43 F.3d at 294;

____ ____________________________

See,
___

Kenneally v.
_________

Lungren, 967 F.2d

_______

U.S. 1054

(6th

Cir.

329, 331

(9th Cir. 1992),

(1993); Traughber v.
_________

1985).4

That

cert. denied,
_____ ______

Beauchane, 760 F.2d

_________

standard

supervenes

506

673, 675-76

the

abuse

of

____________________

3Despite

Brooks'

jurisdiction over

importuning,

we

the district court's

have

no

appellate

denial of the

flurry of

temporary restraining orders that he sought prior to the district

court's disposition
See
___

of his motion for

United States v.
_____________

Miller, 14 F.3d
______

a preliminary injunction.
761, 764

(2d Cir. 1994);

Massachusetts Air Pollution & Noise Abatement Comm'n v. Brinegar,

____________________________________________________
________
499 F.2d 125, 125 (1st Cir. 1974).

Although

several

discretion
cases,

courts

standard

see, e.g.,
___ ____

in

have

applied

an

reviewing Younger
_______

Martin Marietta Corp.

______________________

Human Relations Comm'n, 38

_______________________

abuse

of

abstention

v. Maryland
________

F.3d 1392, 1396

(4th Cir.

1994); O'Neil v. City of Philadelphia, 32 F.3d 785, 790

______
____________________
(3d Cir. 1994), cert.
_____
Ramos
_____

denied, 115 S. Ct. 1355

______

(1995);

v. Lamm, 639 F.2d 559, 564 n.4 (10th Cir. 1980),

____

cert.
_____

denied, 450
______

determining factor.
the

Younger
_______

U.S.

1041 (1981),

Where an attempt is made

doctrine

circumstances, in

context is

under

oddly

a way that threatens

the

to apply

configured

the legitimate

discretion

inquiry, and

applies foursquare

reviewing the district court's denial

even though

we are

of injunctive relief.

See
___

Fieger v. Thomas, 74 F.3d 740, 743 (6th Cir. 1996) (exercising de

______
______

novo

review in kindred

circumstances); Goldie's Bookstore, Inc.

________________________

v. Superior Court, 739 F.2d 466, 468 (9th Cir. 1984) (similar).
______________

This usurpation

of the

does not create an awkward

customary

anomaly.

standard of

review

The primary integer

in the

preliminary injunction calculus is the plaintiff's probability of

success on the merits.

See, e.g., Narragansett Indian Tribe v.

___ ____ __________________________

Guilbert,
________

934

F.2d 4,

course, that the

(1st

plaintiff must show a

in the pending proceeding.

__________________________

court must refrain

claims

Cir. 1991).5

____________________

is no

of

likelihood of succeeding

When Younger applies,

_______

from reaching the

and, thus, there

This means,

merits of the

real possibility

the district

plaintiff's

let

alone a

interests of the national

court

may

appellate

exercise

discretion,

and

review is for abuse of that discretion.

See
___

Chaulk Servs., Inc.

___________________
Cir.

1995).

majority
case

But

for

called the

at bar

n.22,

is a

and

of

F.3d 1361, 1368

purposes

of what

"customary case"
prototype

the

that does

not

Chaulk
______

which the

the Supreme

Court has

appellate

wheels by

(1st

of

see Colorado River, 424

___ _______________

intermediate

therefore, spinning
discretion

modicum

v. MCAD, 70
____

spoken peremptorily,
816

government, then the federal

U.S. at

courts

are,

probing for abuse

of a

exist.

Nonetheless,

the

district court's findings of fact, in contradistinction

to

its

ultimate

applicability

vel non
___ ___

legal

conclusion

of

the Younger
_______

as

to

doctrine,

the

may

evoke a more deferential standard of review.

5The

other

integers

in

the

likelihood of irreparable injury in

calculus

include

(1)

the

the absence of a preliminary

injunction, (2) the relative balance of hardships if the order is

issued or denied,
granting

or

and (3) the

withholding

effect on the public

interim

injunctive

Narragansett Indian Tribe, 934 F.2d at 5.

_________________________

interest of

relief.

See
___

likelihood

fortiori,

that the

there can

plaintiff will succeed

be no

abuse of

in his action.

discretion in

refusing to

grant preliminary injunctive relief.

III.
III.

ANALYSIS
ANALYSIS

Against this

whether Younger
_______

backdrop, we

abstention is

turn to a

appropriate in

consideration of

this

case.

Our

analysis unfolds in four layers.

A.
A.
__

The Younger doctrine welds principles of federalism and

_______

comity

into a fulcrum that can then

balance

between

sensitive federal

Younger, 401 U.S. at 44.

_______

be used to achieve a proper

and

state

interests.

Based on these principles, the

Court articulated the

federal judiciary's obligation

from adjudicating the

merits of

would

needlessly

inject

criminal prosecutions.

next

quarter-century

proceedings,

federal

See id.
___ ___

brought

including

federal claims where

civil

courts

Doctrinal

other

types

actions

into

Younger
_______

to refrain

to do

ongoing

evolution over

of

and

See
___

ongoing

so

state

the

state

administrative

adjudications,

within the

ambit

of Younger
_______

e.g., New Orleans Public Serv., Inc.

____ _______________________________

abstention.

See,
___

v. Council of City of New

_______________________

Orleans, 491 U.S. 350, 367-68 (1989); Ohio Civil Rights Comm'n v.
_______
________________________

Dayton Christian Sch., Inc., 477 U.S. 619, 627 (1986).

___________________________

Perhaps the

that

most revealing elucidation of

the Younger Court wished

_______

to achieve is

the balance

found in Middlesex
_________

County Ethics Comm. v.

_____________________

Garden State Bar Ass'n, 457

________________________

(1982).

Jersey

There

the New

Ethics Committee

U.S. 423

instituted

disciplinary proceeding

criminal

system.

block

trial,

See
___

the

made

id. at 428.
___

disciplinary

standards of

abridged

had

against a

his

statements

The lawyer

proceeding

professional conduct

First

Amendment

abstained, concluding that the

the disciplinary

proceeding and

The Third Circuit reversed

defense lawyer who,

vilifying

the

during a

judicial

sued in federal court

on

the

ground

relied upon by

rights.

The

that

to

the

the committee

district

lawyer could raise his

court

claims in

on subsequent

judicial review.

on the basis that a

bar disciplinary

proceeding did not provide a suitable forum for the

adjudication

of the lawyer's constitutional claims.

The

ruling.

the

Supreme

Court

457 U.S. at 437.

basic

abstention.

analytical

643 F.2d 119.

reinstated

the

district

court's

In the process the Court established

framework

Under this paradigm,

that

still

governs

a federal court

Younger
_______

must abstain

from reaching the merits of a case over which it has jurisdiction

so long as

there is

(1) an ongoing

instituted

prior

to

instituted

prior

to any

the

federal

state judicial

proceeding

substantial

progress

(or,

proceeding,

at

in the

least,

federal

proceeding), that (2) implicates an important state interest, and

(3)

provides an adequate opportunity for

the claims advanced in his federal lawsuit.

B.
B.

the plaintiff to raise

See id. at 432.

___ ___

The next step in

the pavane requires us to

apply this

tripartite framework to the case at bar.

1.
1.

Two of

the three proceedings that Brooks

seeks to

10

enjoin

37(17)(a)

his petition questioning the

constitutionality of Rule

and the paternity suit in which

pending before

he is embroiled

duly constituted state courts

are

and are undeniably

ongoing

state

judicial proceedings.

See
___

New Orleans Public

___________________

Serv., 491 U.S. at 371 (listing rudiments of a judicial inquiry).

_____

The third proceeding

Cobbin

(which

contest)

the embryonic contempt proceeding against

Brooks,

in

all

events, may

is also judicial in nature.

First Amendment

challenge

to a

lack

standing

to

Middlesex itself involved

_________

state's

system of

attorney

discipline, and the Supreme Court held that attorney disciplinary

proceedings are

abstention.

judicial

proceedings for

See Middlesex, 457

___ _________

purposes

U.S. at 433-34.

of

Younger
_______

Consequently,

the first prerequisite for Younger abstention is satisfied.

_______

2.
2.

It

is

evident that

New

Hampshire has

vital

interest in regulating the

subject matter of Brooks' claims.

state's judicial system is

an important cog in

apparatus, and

no judicial

its governmental

system can function

smoothly unless

the attorneys who participate in it are held to high standards of

professionalism and accountability.

regulating

interest

attorney

conduct

See id.
___ ___

comprises

for purposes of Younger abstention.6

_______

at 434-35.

Thus,

significant

state

See id.; see also

___ ___ ___ ____

____________________

6The defendants represent

illustration,

the

NHSC

is

the state's interest.

charged

with

the

By way of

paramount

responsibility of establishing procedures and standards governing

attorney discipline
profession."

"that are emblematic of the character of the

Petition of Burling, 651 A.2d 940, 944 (N.H. 1994);

___________________

see also N.H. Const., pt. II, art. 73-a.

___ ____

To achieve that mission

the court relies upon the Committee to investigate

the

propriety of

attorneys'

conduct.

See
___

37(3)(c); see also Burling, 651 A.2d at 941-42.

___ ____ _______

and determine

N.H. Sup.

Ct.

R.

11

Fieger,
______

74

F.3d at

745; Hirsh
_____

v.

Justices of Calif. Supreme

___________________________

Court, 67 F.3d 708, 712-13 (9th Cir. 1995).

_____

In the same vein,

central

element

of

the

the confidentiality rule comprises a

regulatory

identified no fewer than four

serves:

(1)

scheme.

The

NHSC

noteworthy purposes that the

protecting attorneys' reputations;

has

rule

(2) protecting

complainants' anonymity; (3) maintaining the integrity of pending

investigations;

and (4)

preventing profligate

disclosures that

might endanger the interests of those sources from whom the state

obtained

information

on a

confidential

basis.

See
___

State v.
_____

Merski, 437 A.2d 710, 715 (N.H. 1981), cert. denied, 455 U.S. 943
______
_____ ______

(1982).

Since

the rule's

moment

to New

Hampshire

proper operation is

citizens, the

itself of

second requirement

great

for

Younger abstention is satisfied.7

_______

3.
3.

We also believe that the pending state proceedings

allow an ample opportunity for Brooks to raise his constitutional

challenge.

The clearest

proceeding presently pending

illustration

of

this

before the NHSC (in

point is

the

which the very

issue that forms the centerpiece of Brooks' federal complaint

raised,

briefed, and teetering on

other assessment

courts are

rights.

would defile

the brink of

decision).

the basic presumption

fully capable of safeguarding

is

Any

that state

federal constitutional

See Middlesex, 457 U.S. at 431; Bettencourt v. Board of

___ _________
___________
_________

____________________

7Although

the

NHSC recently

amended

the

version of

the

confidentiality rule that is at issue here, see supra note 2, the

___ _____
state nevertheless

retains a

strong interest in

preserving the

expectations of confidentiality created by the former regime.

12

Registration in Medicine, 904 F.2d 772, 776 (1st Cir. 1990).

________________________

Here, the

presumption is

has demonstrated unequivocally that

confidentiality provisions

Burling,
_______

651

A.2d

940

reinforced because

it takes questions anent the

seriously.

(N.H.

the NHSC

1994).

See,
___

e.g., Petition of
____ ____________

Indeed,

when

Brooks

interposed his objections to the confidentiality rule, the NHSC

which

could have

discretion

brushed

aside his

petition

as a

matter

of

elected to entertain the objections, and did so in a

proceeding that affords Brooks an adequate opportunity to present

his constitutional arguments.

Though Brooks

less

than adequate

Supreme

Court

opportunity

state

whether

has

"state

constitutional

proceeding

because of

never

to present

proceeding be

(1979).

maintains

law

the public.

clearly

Nothing in the

that

federal claim

open to

NHSC proceeding

its confidential

suggested

claims."

that the

bars

Moore v.
_____

the

Sims,
____

bar.8

character, the

having

an

adequate

requires the

parallel

Rather, the

interposition

442 U.S.

confidential nature of

constitutes such

is

test is

of

the

415, 425-26

the state court

The third

(and

final)

requirement for Younger abstention is therefore satisfied.

_______

C.
C.
__

Fulfillment

of

the

three

requirements

for

Younger
_______

abstention usually

ends the

federal inquiry.

See Bettencourt,
___ ___________

____________________

8For what it may be worth, we note that, if the NHSC follows

past practice, its eventual
be embodied
e.g.,
____

in a published,

disposition of Brooks' petition will

publicly accessible opinion.

Petition of Burling, 651

____________________

A.2d

940 (N.H.

See,
___

1994); Astles'
_______

Case, 594 A.2d 167 (N.H. 1991).

____

13

904

F.2d at 779-80.

But even

if the Younger
_______

requirements are

satisfied, a federal

court may nonetheless intervene

ongoing state judicial

"bad

faith,

harassment,

Younger, 401 U.S. at 54.

_______

exception.

proceeding if the plaintiff

or

any

other unusual

to halt an

demonstrates

circumstance."

Brooks suggests that his case trips the

He bases this suggestion broadly, but the only point

that bears extended discussion

is his allegation that

the state

tribunal is incompetent by reason of bias.

Judicial

bias

is

a recognized

basis

for

derailing

Younger abstention, see, e.g., Gibson v. Berryhill, 411 U.S. 564,

_______
___ ____ ______
_________

577-79

(1973), but

brandishing of

together

the claim

cardboard

from various

information.

bits

requires more

sword.

Brooks'

and pieces

than the

claim

of marginally

frenzied

is

pasted

relevant

For example, he notes that several Justices of the

NHSC

have

advocated

disciplinary

confidential

proceedings; that

before legislative committees

the Chief

hear

in

treatment

of

certain Justices

in opposition

Justice's rulemaking

power; that

judicial

have testified

to restrictions

the NHSC

on

will only

oral argument on his petition behind closed doors; and that

the

state

court

proceeding

the

Committee

has

defended the validity of the confidentiality rule.

staunchly

We think that

such snippets, individually and collectively, are insufficient to

show cognizable bias.

In the first place,

abstention doctrine

party

fails

to

is

employ

the bias exception to the

inapposite if

available

14

an

ostensibly

procedures

for

Younger
_______

aggrieved

recusal

of

allegedly

biased

Bettencourt,
___________

Schaible,
________

U.S.

judges.

904

F.2d at

See
___

780;

874 F.2d 624, 629

904 (1990).

Brooks

individual Justice.

on the basis of

Middlesex,
_________

U.S.

at 435;

Standard Alaska Prod. Co.

___________________________

(9th Cir. 1989),

has never sought

While he

457

v.

cert. denied, 495

_____ ______

the recusal

of any

attempts to justify this

omission

various tactical considerations and by

claiming

that

the NHSC's

proceedings

that

standard recusal

fall

mechanism is

within its

explanations lack force.

original

inapplicable to

jurisdiction,

For this reason alone, his

his

claim must

fail.

In

necessary

the

second place,

to trigger

plaintiff to offer some

Younger's
_______

the

baseline

showing of

escape mechanism

requires

due process right to an impartial adjudication.

411

U.S. at 577; Bettencourt,

___________

904 F.2d at

780.

See Gibson,
___ ______

The "evidence"

Brooks presents does not approach this benchmark.

Brooks'

the

evidence that abstention will jeopardize

his

that

bias

At most,

claim depends on a purely conclusory allegation that the

Justices of the NHSC are predisposed to uphold their own policies

and

rules.

But an

entire

group

of

adjudicators cannot

be

disqualified

institutional

that group.

wholesale

solely

bias in favor of

on

the

a rule or

basis

of

an

alleged

policy promulgated by

See, e.g., Doolin Security Savs. Bank v. FDIC,

___ ____ ___________________________
____

F.3d 1395, 1407 (4th Cir.), cert. denied, 116 S. Ct. 473
_____ ______

53

(1995);

Hammond v. Baldwin, 866 F.2d 172, 177 (6th Cir. 1989).

_______
_______

To

institutional

implicate

bias must be

due

process,

harnessed to a

15

claims

of

general

further showing, see

___

Gibson,
______

411 U.S.

at

579,

such

as

potential

conflict

of

interest, see, e.g., Ward v. Village of Monroeville, 409 U.S. 56,

___ ____ ____
______________________

60 (1972), or a pecuniary stake in the outcome of the litigation,

see, e.g.,
___ ____

appears,

Bettencourt, 904 F.2d

___________

the

Justices' interest

at 780 n.10.

(if

any)

For aught

in maintaining

that

the

privacy of attorney disciplinary proceedings appears to be purely

Platonic.9

the

At least,

Brooks has not produced any

NHSC

or

any individual

depending

on

whether

Justice

attorney

stands

disciplinary

to

evidence that

gain or

proceedings

lose

are

conducted in public or private, nor has he revealed the existence

of any particularized

interest in the outcome

of his litigation

that might tend to undermine the Justices' impartiality.

In the third

place, to the extent that Brooks contends

that any individual Justice is

his case, he offers

actually biased or has

no concrete evidence to that

prejudged

effect.

Thus,

he bumps up against the historic presumption that judges are "men

[and women] of conscience and intellectual discipline, capable of

judging a particular controversy

circumstances."

Withrow
_______

v.

fairly on the basis of

Larkin,
______

421

U.S. 35,

(internal quotation marks and citation omitted).

of

judicial impartiality

cannot

be

trumped

invective, unanchored to specific facts.

at 333; Bettencourt, 904 F.2d at 780 n.10.

___________
____________________

55

its own

(1975)

The presumption

by

free-floating

See Kenneally, 967 F.2d

___ _________

9The structural bias claims, weak in all events, are further

undermined by the recent
See supra note 2.
___ _____

amendments to the confidentiality rule.

Those amendments, adopted without

the Justices, liberalize the rule

in such a way as to

dissent by

provide a

strong indication that the Justices are not wed to secrecy.

16

D.
D.
__

We add brief comments

Brooks seems to make.

concerning two other claims that

1.
1.

Younger
_______

To the

extent that

Brooks

invites us

to forgo

abstention because his attorney is the subject of a bad-

faith prosecution by the NHSC (arising out of disclosures made in

violation

of Rule

37(17)(a)

decline

the invitation.

not

enforcement

an

whilst

representing

Brooks),

The NHSC's investigation

proceeding brought

without

we

of Cobbin is

any

realistic

expectation of finding a violation of a rule; and, therefore, the

investigation does

not catalyze

the bad-faith exception

Younger doctrine.
_______

See Younger, 401 U.S. at

___ _______

to the

48; Fieger, 74 F.3d

______

at 750; see also Dombrowski v. Pfister, 380 U.S. 479, 482 (1965).
___ ____ __________
_______

2.
2.

Younger,
_______

In

claims

something of

that

a non

the threat

of

sequitur, Brooks,

disciplinary

citing

proceedings

against

him

and

his

attorney

for

violations

confidentiality rule

chills the exercise of

rights,

the

and

"flagrantly

prohibitions

that

and patently

in every

Younger,
_______

violative

clause,

whatever manner and against

apply it."

confidentiality

of

express

is

therefore

constitutional

paragraph, and

whomever an effort might be

401 U.S. at 53-54 (quoting Watson

______

313 U.S. 387, 402 (1941)).

the

his First Amendment

rule

sentence and

of

in

made to

v. Buck,
____

But Younger itself belies this claim.

_______

The Younger Court declared that "a `chilling effect,' even in the
_______

area

of

sufficient

First Amendment

basis,

in

and

rights,

of

has never

itself,

17

for

been

considered a

prohibiting

state

action."

Id. at 51; accord Fieger, 74 F.3d at 750.

___
______ ______

Here, Brooks

has posited no other legally tenable basis for his challenge.

IV.
IV.

CONCLUSION
CONCLUSION

We

need

important question

attorney

go no

Although

about the interplay

disciplinary

question is

further.

system

presently pending

and

the

Brooks

between New

First

before the New

raises an

Hampshire's

Amendment,

that

Hampshire Supreme

Court in

If, in

a judicial

proceeding that Brooks

the end, Brooks

is not content

himself instituted.

with the result

of that

adjudication, he may then seek certiorari in the Supreme Court of

the

United States.

He may not, however, rewardingly request the

federal district court to enjoin the state proceedings.

Affirmed.
Affirmed.
________

18