Anderson v. Stewart , 82 F. App'x 666 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 9 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
HONORABLE JOSEPH W.
ANDERSON, of the Third Judicial
District Court, State of Utah,
Plaintiff-Appellant,
v. No. 02-4040
(D.C. No. 2:01-CV-970)
STEVEN H. STEWART, in his (D. Utah)
individual capacity; KRISTEN G.
BREWER, in her official capacity as
director of the office of the Guardian
ad Litem and in her individual
capacity; COLIN R. WINCHESTER,
in his official capacity as Executive
Director of the Judicial Conduct
Commission, RUTH LYBBERT, in her
official capacity as Chair of the
Judicial Conduct Commission,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , BRISCOE , and LUCERO , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff, The Honorable Joseph W. Anderson, is a judge in the Utah state
court system who has become embroiled in a dispute with various members of the
Utah bar. After defendant Kristen Brewer, the director of the Utah Office of the
Guardian ad Litem, filed a complaint against Judge Anderson with the state
Judicial Conduct Commission (JCC), Judge Anderson brought suit in federal
district court claiming that the proceedings of the JCC deprived him of liberty and
property interests under color of state law, damaged his reputation in retaliation
for his actions as a judge, threatened the independence of the Utah judiciary,
violated the separation of powers doctrine, and interfered with his federal right to
a republican form of government. Judge Anderson requested a temporary
restraining order and an order enjoining the JCC from investigating him or
holding any proceedings regarding him. He also requested various declaratory
judgments bringing into question the legitimacy of the JCC, damages, and
attorney fees and costs.
The district court denied the motion for a temporary restraining order and
eventually stayed all proceedings in the case “until the plaintiff has exhausted
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every remedy and pursued every complaint, claim, grievance and allegation
asserted herein, before the Utah Judicial Conduct Commission and the Utah
Supreme Court.” Aplt. App. at 81-82. Because we are under an independent
obligation to examine our own jurisdiction, McGeorge v. Continental Airlines,
Inc. , 871 F.2d 952, 953 (10th Cir. 1989), we directed the parties to submit
additional briefs addressing whether the district court’s order is final and
appealable. We conclude the order is not a final order, an appealable collateral
order, or an appealable interlocutory order, and dismiss this appeal for lack of
jurisdiction.
In general, only final orders of the district courts are within this court’s
appellate jurisdiction. 28 U.S.C. § 1291. A final order is one that “ends the
litigation leaving nothing to be done except execution of the judgment.” Primas
v. City of Okla. City , 958 F.2d 1506, 1513 (10th Cir. 1992). Stay orders are
ordinarily not final orders for purposes of appeal because the plaintiff is not
“effectively out of [federal] court.” Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp. , 460 U.S. 1, 10 n.11 (1983) (quotation omitted). Because the
district court has merely stayed the action pending exhaustion, the action remains
pending in federal court awaiting Judge Anderson's completion of available state
processes. He is not effectively out of federal court; his day in federal court has
merely been postponed.
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Judge Anderson argues that Moses H. Cone supports the appealability of
the stay order. This argument is unavailing. In Moses H. Cone, the federal court
stayed proceedings in favor of parallel litigation in state court regarding a
question of mandatory arbitration. The question was the same in both courts.
Because a decision by the state court would be res judicata in a later federal
action, the plaintiff in Moses H. Cone was effectively out of federal court,
rendering the stay order final for purposes of appeal.
Here, the situation is different. The issues before the JCC, and ultimately
before the Utah Supreme Court on review of the decision of the JCC, are distinct
from the claims Judge Anderson raises in his federal complaint. Even if the Utah
Supreme Court should conclude upon recommendation from the JCC or the
special master appointed by the court on June 4, 2003, to sanction Judge
Anderson for judicial misconduct, 1
he still has a federal forum in which to bring
his due process claims and other federal challenges both to the JCC itself and any
proceedings brought against him. The stay order here is not a final order
appealable under either § 1291 or under Moses H. Cone.
1
The defendants have filed with this court, pursuant to Federal Rule of
Appellate Procedure 28(j), a copy of an Order of Referral entered by the Utah
Supreme Court on June 4, 2003, which indicates the JCC has completed its
proceedings and has recommended the imposition of sanctions. The court by its
June 4 order appointed a special master to conduct inquiry into additional matters
and to issue a report to the court prior to September 1, 2003.
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Nor is this an appealable collateral order. The collateral order doctrine is
best understood as a practical construction of 28 U.S.C. § 1291. Digital Equip.
Corp. v. Desktop Direct, Inc. , 511 U.S. 863, 867 (1994) (quotation omitted). The
“category comprises only those district court decisions that are conclusive, that
resolve important questions completely separate from the merits, and that would
render such important questions effectively unreviewable on appeal from final
judgment in the underlying action.” Id. The Supreme Court has repeatedly
stressed that this exception to finality is a narrow one and that it should remain
so. Id. at 868.
In order to evaluate the issue of appealability under the collateral order
doctrine, “we must focus on the right at stake and the loss to [Judge Anderson] if
review is denied.” United States v. Section 17 Township 23 North, Range 22 East
of IBM, Delaware County, Okla., 40 F.3d 320, 322 (10th Cir. 1994). “[A]bsent a
constitutional or statutory provision securing the right at stake, it will be difficult
for a party to demonstrate immediate review is necessary.” Id. (citing Digital
Equip. , 511 U.S. at 878-80).
In Digital Equip. , the Supreme Court found that the right not to stand trial
emanating from a private settlement agreement was not sufficiently important to
allow immediate review as a collateral order. 511 U.S. at 877-78. Following
Digital Equip. , this court in Section 17 Township held that the right to defend a
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federal forfeiture before the adjudication of state criminal charges similarly
lacked the requisite importance for immediate appealability. 40 F.3d at 322.
Implicitly, the right Judge Anderson attempts to protect here is the right not
to be made to appear before a state disciplinary authority before he proceeds with
his federal lawsuit. As in Section 17 Township , we hold that this is not the kind
of “important right” which the Supreme Court in Digital Equip. contemplated as
requiring immediate review .
Finally, we reject Judge Anderson’s claim that this order is appealable as
an interlocutory order under 28 U.S.C. § 1292(a)(1). That statute provides this
court with appellate jurisdiction to review district court orders which deny
injunctive relief. 28 U.S.C. § 1291(a)(1). The parties agree that, by not ruling on
Judge Anderson’s request for an injunction, the district court has effectively
denied an injunction. Under these circumstances, however, Judge Anderson must
show additionally that the order threatens a “serious, perhaps irreparable,
consequence” and is one that can be “effectively challenged only by immediate
appeal.” Forest Guardians v. Babbitt , 174 F.3d 1178, 1185 (10th Cir. 1999)
(quotations omitted). For the same reasons stated above, we do not agree that
having to appear before the JCC carries with it the kind of serious, irreparable
consequence justifying immediate appeal. If the cost, stress, and inconvenience
of defending against a criminal prosecution were not enough to establish
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irreparable injury in Younger v. Harris , 401 U.S. 37, 46 (1971), Judge Anderson's
having to appear before the JCC is likewise not a sufficiently irreparable injury
which could justify an immediate appeal.
Because the order appealed is not a final order under § 1291, an appealable
collateral order, or an appealable interlocutory order under § 1292, we DISMISS
this appeal for lack of jurisdiction. Judge Anderson’s motion to dismiss action or
in the alternative motion to dismiss appeal is DENIED as moot.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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