James D. Hood Ii v. Ronald T. Keller; Richard H. Finan; Kenneth L. Morckel

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0314P (6th Cir.)
File Name: 03a0314p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JAMES D. HOOD II,
Plaintiff-Appellant,
v.
RONALD T. KELLER; RICHARD
H. FINAN; KENNETH L.
MORCKEL,
Defendants-Appellees.
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No. 02-3402
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 01-00454—Algenon L. Marbley, District Judge.
Argued: August 1, 2003
Decided and Filed: September 3, 2003
Before: KENNEDY, GILMAN, and GIBBONS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Nathan W. Kellum, CENTER FOR
INALIENABLE RIGHTS, Memphis, Tennessee, for
Appellant. Elise W. Porter, OFFICE OF OHIO ATTORNEY
2 Hood v. Keller, et al. No. 02-3402
GENERAL, Columbus, Ohio, for Appellees. ON BRIEF:
Nathan W. Kellum, CENTER FOR INALIENABLE
RIGHTS, Memphis, Tennessee, for Appellant. Elise W.
Porter, Tomi L. Dorris, OFFICE OF OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellees.
GIBBONS, J., delivered the opinion of the court, in which
GILMAN, J., joined. KENNEDY, J. (pp. 11-12), delivered
a separate dissenting opinion.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-
appellant James D. Hood II brought suit in federal district
court against defendant-appellee Ronald Keller, in his official
capacity as the Executive Director of the Capitol Square
Review and Advisory Board; defendant-appellee Richard
Finan, in his official capacity as the Chairman of the Capitol
Square Review and Advisory Board; and defendant-appellee
Kenneth Morckel, in his official capacity as the
Superintendent of the Ohio State Highway Patrol, challenging
the constitutionality of Ohio Administrative Code § 128-4.
This provision requires that all persons who wish to use the
Ohio Statehouse grounds in Columbus, Ohio, first obtain a
permit to do so. In his complaint, Hood alleges that the
permit requirements set forth in Ohio Administrative Code
§ 128-4 are unconstitutionally overbroad, vague, and
discriminatory in violation of his rights to free speech and
free exercise of religion under the First and Fourteenth
Amendments to the United States Constitution. Hood claims
that the continued threat of enforcement of Ohio
Administrative Code § 128-4 “chills and deters plaintiff from
exercising his constitutional rights, causing irreparable harm
to plaintiff.” Defendants-appellees filed a motion to dismiss
under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of
Civil Procedure. The district court concluded that the

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No. 02-3402 Hood v. Keller, et al. 3
Rooker-Feldman doctrine prevented it from exercising
jurisdiction over this lawsuit, granted the motion under Rule
12(b)(1), and dismissed the case. For the reasons set forth
below, we reverse the decision of the district court and
remand for further proceedings.
I.
Hood is a Christian pastor. Since 1982, Hood has engaged
in “religious speech activities” on the Ohio Statehouse
grounds, including “open air proclamation, oral
communication, and written literature.”
The Capitol Square Review and Advisory Board (Capitol
Square) is an eleven-member body with the “sole authority to
regulate all uses of the capitol square.” O.R.C.
§ 105.41(E)(2). Pursuant to its statutory authority, Capitol
Square has enacted a rule requiring all persons who wish to
use the Ohio Statehouse grounds to obtain a permit before
doing so. Ohio Administrative Code § 128-4-02(A) states:
Capitol buildings or grounds are available for use by the
public for the purpose of governmental business, public
meetings for free discussion of public questions, or for
activities of a broad public purpose, provided the
authorized procedure has been followed and appropriate
approvals have been received.
The procedure for obtaining a permit is described in Ohio
Administrative Code § 128-4-03, which provides, in relevant
part:
(A) A request for use of capitol buildings or grounds
shall be submitted in writing to the board no less than
fifteen and no more than one hundred eighty days prior
to the event. For good cause shown, requests may be
submitted within less than fifteen days before the event.
***
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(C) The board will collect a nominal fee of twenty
dollars--to cover the administrative cost of issuing a
permit. The fee may be waived for good cause shown.
On May 18, 2000, Hood entered the Ohio Statehouse
grounds and began to “preach and/or hand out religious
tracts.” An officer of the Ohio State Highway Patrol arrived
on the scene and told Hood “that he could not preach on the
public property nor hand out religious tracts without a permit
to do so.” Hood was asked to leave the property and refused.
Later that day, Hood was charged with criminal trespass in
violation of Ohio Revised Code § 2911.21(A)(2), which
states:
No person, without privilege to do so, shall . . .
[k]nowingly enter or remain on the land or premises of
another, the use of which is lawfully restricted to certain
persons, purposes, modes, or hours, when the offender
knows he is in violation of any such restriction or is
reckless in that regard.
Hood filed a motion to dismiss the state criminal charges.
In his motion to dismiss, Hood argued that Ohio Revised
Code § 2911.21(A)(2) and Ohio Administrative Code § 128-1
et seq. “violate due process, freedom of speech, and the free
exercise of religion and as such are unconstitutional.” On
November 17, 2000, the Franklin County Municipal Court
held that the challenged statutes were constitutional and
denied Hood’s motion to dismiss. A jury trial was held, and
on November 29, 2000, Hood was found guilty of criminal
trespass and fined one hundred dollars. Hood appealed the
decision to the Court of Appeals of Ohio, Tenth Appellate
District, but later filed a motion to dismiss his appeal, which
was granted on April 2, 2001.
On May 16, 2001, Hood filed a Verified Complaint in the
United States District Court for the Southern District of Ohio
against defendants-appellees. The complaint alleges that:
(1) “[t]he continued threat of enforcement of Chapter 128-4

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No. 02-3402 Hood v. Keller, et al. 5
1In his complaint, Hood also set forth claims of malicious
prosecution and false arrest. Hood voluntarily withdrew his claim of
malicious prosecution prior to the district court’s ruling on defendants-
app ellees’ motio n to dism iss. In its March 1 5, 20 02, o rder, the district
court dismissed Hood’s claim of false arrest, noting that Hood “failed to
respond to the Defendants’ arguments” and “seems to have conceded that
the claim of false arrest is without merit.” Hood has not app ealed the
district court’s dismissal of the false arrest claim.
permit requirement and charge of criminal trespass for being
on public grounds, chills and deters plaintiff from exercising
his constitutional right, causing irreparable harm to plaintiff;”
(2) “[t]he permit requirements set forth in Chapter 128-4 are
unconstitutionally overbroad, vague, and discriminatory, as
applied and construed, in violation of freedom of speech
under the First and Fourteenth Amendments to the United
States Constitution;” (3) “[t]he permit requirements set forth
in Chapter 128-4 are unconstitutionally overbroad, vague, and
discriminatory, as applied and construed, in violation of free
exercise of religion under the First and Fourteenth
Amendments to the United States Constitution;” and (4) that
defendants-appellees “impermissibly interfered with the
exercise of Pastor Hood’s rights of conscience and religion
and freedom of speech guaranteed by Section 1.027 and 1.11
of the Ohio Constitution.”1 Hood requests the following
relief: (1) “a judgment and decree declaring that Chapter 128-
4 of the Ohio Administrative Code and Section 105.41 are
unconstitutional as applied to plaintiff’s activities in this
case;” (2) “a preliminary and permanent injunction enjoining
defendants, their agents, employees and all persons in active
concert or participation with them, or any of them, from
applying or enforcing or attempting to enforce against the
plaintiff Chapter 128-4 permit requirement for preaching
and/or handing out religious tracts;” (3) compensatory
damages; and (4) reasonable costs and expenses.
On July 16, 2001, defendants-appellees filed motions to
dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure. The district court found that the
6 Hood v. Keller, et al. No. 02-3402
Rooker-Feldman doctrine prevented the district court from
exercising subject matter jurisdiction over Hood’s claims, and
entered judgment for defendants-appellees. On April 8, 2002,
Hood filed his notice of appeal.
II.
This court reviews de novo a district court’s grant of a
motion to dismiss for lack of subject matter jurisdiction.
Tropf v. Fid. Nat’l Title Ins. Co., 289 F.3d 929, 936 (6th Cir.
2002), cert. denied 123 S.Ct. 887 (2003).
A.
The district court held that the Rooker-Feldman doctrine
bars Hood’s claims in this lawsuit. This decision was
incorrect.
The Rooker-Feldman doctrine has evolved from two
Supreme Court cases which establish that “lower federal
courts lack subject matter jurisdiction to engage in appellate
review of state court proceedings.” Peterson Novelties, Inc.
v. City of Berkley, 305 F.3d 386, 390 (6th Cir. 2002); see also
Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); Dist. of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
The purpose of the doctrine is to prevent “a party losing in
state court . . . from seeking what in substance would be
appellate review of the state judgment in a United States
district court, based on the losing party’s claim that the state
judgment itself violates the loser’s federal rights.” Tropf, 289
F.3d at 936-37 (quoting Johnson v. De Grandy, 512 U.S. 997,
1005-06 (1994)).
The Rooker-Feldman doctrine bars district courts from
hearing both challenges to state court judgments and claims
that are “inextricably intertwined” with state court judgments.
See Catz v. Chalker, 142 F.3d 279, 293 (6th Cir. 1998). “In
practice this means that when granting relief on the federal
claim would imply that the state-court judgment on the other

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No. 02-3402 Hood v. Keller, et al. 7
issues was incorrect, federal courts do not have jurisdiction.”
Pieper v. Am. Arbitration Ass’n, — F.3d. —, 2003 WL
21663246, at *2 (6th Cir. July 11, 2003); see also Pennzoil
Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J.,
concurring) (“Where federal relief can only be predicated
upon a conviction that the state court was wrong, it is difficult
to conceive the federal proceeding as, in substance, anything
other than a prohibited appeal of the state-court judgment.”).
The Rooker-Feldman doctrine, however, does not prohibit
federal district courts from exercising jurisdiction where the
plaintiff’s claim is merely “a general challenge to the
constitutionality of the state law applied in the state action,”
rather than a challenge to the law’s application in a particular
state case. Tropf, 289 F.3d at 937 (quoting Catz, 142 F.3d at
293). In determining the applicability of the Rooker-Feldman
doctrine, federal courts “cannot simply compare the issues
involved in the state-court proceeding to those raised in the
federal-court plaintiff’s complaint,” but instead “must pay
close attention to the relief sought by the federal-court
plaintiff.” Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th
Cir. 2003) (quoting Kenmen Eng’g, 314 F.3d at 476).
In his complaint, Hood claims that “[t]he continued threat
of enforcement of Chapter 128-4 permit requirement and
charge of criminal trespass for being on public grounds chills
and deters [him] from exercising his constitutional rights,”
thereby causing him irreparable harm. However, Hood has
not challenged his state court criminal trespass conviction.
As Hood correctly observes, the complaint contains “no
demand to set aside the verdict or the state court ruling.”
Instead, Hood seeks injunctive and declaratory relief
prohibiting defendants-appellees from using “preaching
and/or handing out religious tracts” as a basis for “enforcing
or attempting to enforce” Ohio Administrative Code § 128-4.
Because Hood does not seek to have the district court
overturn his November 29, 2000, conviction in Franklin
County Municipal Court, the Rooker-Feldman doctrine is
inapplicable to this lawsuit. See Edwards v. Illinois Bd. of
Admissions to Bar, 261 F.3d 723, 729 (7th Cir. 2001) (“When
8 Hood v. Keller, et al. No. 02-3402
the litigant is challenging the constitutionality of a rule that
was applied to him, but is not asking to correct or revise the
determination that he violated the rule, Rooker-Feldman is no
obstacle to the maintenance of the suit.” (internal quotation
marks omitted)).
In Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224
(7th Cir. 1993), the Seventh Circuit examined the
applicability of the Rooker-Feldman doctrine to a similar
situation. The Illinois Judicial Inquiry Board filed charges
against Robert Buckley, an Illinois state court justice, for
violating a state rule regulating the speech of candidates for
judicial office. Id. at 226. The Illinois Courts Commission
ruled that Buckley had violated the rule in his 1990 judicial
campaign, and according to the Illinois state constitution, the
commission’s decision was final such that Buckley had no
avenue for appeal within the state court system. Id.
Buckley filed suit in federal district court, not seeking to
overturn the final decision from the Illinois Courts
Commission, but instead seeking a declaratory judgment that
the state rule regulating the speech of judicial candidates is
unconstitutional. The Seventh Circuit held that:
Justice Buckley’s challenge to the constitutionality of
Illinois Supreme Court Rule 67(B)(1)(c) does not entail
a challenge to the ruling by the Illinois Courts
Commission that he violated the rule. It is true that if as
in Leaf v. Supreme Court, 979 F.2d 589 (7th Cir.1992),
Buckley were seeking not only to clear away the rule so
that he could run in future judicial elections unimpeded
by it but also to obtain relief against the discipline
imposed upon him, he would be in effect appealing from
the Illinois Courts Commission’s judgment (though that
would be only a part of what he was doing), which
Rooker-Feldman forbids him to do. But he is not asking
us to expunge the disciplinary finding or do anything else
to correct or revise the Commission’s judgment. He is
not, in short, asking for any relief of the kind an appellant

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No. 02-3402 Hood v. Keller, et al. 9
seeks – relief directed against a judgment. Of course that
judgment, which by virtue of Rooker-Feldman Justice
Buckley cannot attack in this suit, might by principles of
res judicata bar him from maintaining this suit. But res
judicata is a defense, not a limitation on jurisdiction. It
must be pleaded. It has not been.
Id. at 227.
As in Buckley, if Hood were seeking to obtain relief
directed against his November 29, 2000, conviction, instead
of simply seeking to clear away the allegedly unconstitutional
permit requirement so that he can preach and hand out
religious tracts on Capitol grounds in the future unimpeded by
the permit requirement, then the Rooker-Feldman doctrine
would apply. But Hood is not asking the district court to
expunge his state court conviction. Consequently, the
Rooker-Feldman doctrine does not bar this claim.
Applying the Rooker-Feldman doctrine, the district court
observed that “the state court specifically ruled on the precise
issue presented to this court.” Hood v. Keller, No.
01-CV-454, 2002 WL 483560, at *6 (S.D. Ohio March 15,
2002). The district court appears to have confused the
Rooker-Feldman doctrine with the concept of preclusion. As
the Seventh Circuit has noted, “although the Rooker-Feldman
doctrine and principles of preclusion may be easily confused
with each other because they both define the respect one court
owes to an earlier judgment, the two are not coextensive.”
Centres, Inc. v. Town of Brookfield, Wis., 148 F.3d 699, 703
(7th Cir. 1998). Explaining the difference between the
Rooker-Feldman doctrine and preclusion, the Seventh Circuit
has stated:
The Rooker-Feldman doctrine asks: is the federal
plaintiff seeking to set aside a state judgment, or does he
present some independent claim, albeit one that denies a
legal conclusion that a state court has reached in a case to
which he was a party? If the former, then the district
10 Hood v. Keller, et al. No. 02-3402
court lacks jurisdiction; if the latter, then there is
jurisdiction and state law determines whether the
defendant prevails under principles of preclusion.
GASH Assoc. v. Village of Rosemont, Ill., 995 F.2d 726, 728
(7th Cir. 1993); see also Kenmen Eng’g v. City of Union, 314
F.3d 468, 476 (10th Cir. 2002) (“Rather than prohibiting the
relitigation of issues and claims (the province of the
preclusion doctrines), Rooker-Feldman protects state-court
judgments from impermissible appellate review by lower
federal courts.”).
In this case, Hood does not seek to set aside his conviction
in Franklin County Municipal Court. Consequently, the
Rooker-Feldman doctrine does not apply. Although the fact
that Hood raised the same constitutional issue in the state
court proceeding could potentially justify dismissing this
lawsuit in whole or in part, we note that “absent exceptional
cases or particular circumstances, a federal appellate court
will not consider issues not passed on by the district court.”
United States v. State of Ohio, 957 F.2d 231, 234 (6th Cir.
1992) (quotation omitted). We thus decline to reach these
issues and instead leave them for the district court to resolve
on remand.
III.
For the foregoing reasons, we reverse the decision of the
district court and remand for further proceedings.

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No. 02-3402 Hood v. Keller, et al. 11
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DISSENT
_______________
KENNEDY, Circuit Judge, dissenting. Because I believe
the district court properly applied the Rooker-Feldman
doctrine, I respectfully dissent.
Plaintiff made a general challenge as well as an applied
challenge to the constitutionality of the ordinance in the state-
court proceeding, the state-court judgment addressed and
confirmed the constitutionality of the ordinance as applied to
plaintiff and generally, and plaintiff did not appeal.
It is clear that plaintiff is making the same applied
challenge to the constitutionality of the ordinance in his
federal complaint here, and on that basis the district court
applied the Rooker-Feldman doctrine. While plaintiff does
not directly ask that his conviction be set aside, he does
complain that defendants-appellees “impermissibly interfered
with the exercise of Pastor Hood’s rights of conscience and
religion and freedom of speech guaranteed by Section 1.027
and 1.11 of the Ohio Constitution, and asks that “a judgment
and decree declaring that Chapter 128-4 of the Ohio
Administrative Code and Section 105.41 are unconstitutional
as applied to plaintiff’s activities in this case.” The activity
described in the complaint is the May 18, 2000 activity in
which the state “unconstitutionally stopped plaintiff’s
speech.” To read plaintiff’s federal complaint as making only
a facial challenge would require us to disregard the fact that
plaintiff seeks injunctive relief only for himself and a
declaration that his conduct as described in the complaint was
constitutionally protected. To grant him the relief sought
would require us to consider the same issues previously
decided in Ohio state court; i.e., the constitutionality of the
ordinance as applied to plaintiff’s conduct on May 18, 2000.
Plaintiff’s general challenge is “inextricably intertwined” with
the state court proceeding. Further, plaintiff made a general
12 Hood v. Keller, et al. No. 02-3402
challenge in state court. The state court has actually ruled on
his general challenge. As the district court noted, the issue
was explicitly decided in the criminal case. Plaintiff cannot
seek to have it relitigated here.

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