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Richard D. Kern v. Frank J. Clark, Iii, G. Michael Drmacich, and Barry A. Zavah

Citations: 331 F.3d 9; 2003 U.S. App. LEXIS 10837; 2003 WL 21254890Docket: 02-7472

Court: Court of Appeals for the Second Circuit; June 2, 2003; Federal Appellate Court

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Richard D. Kern appeals the March 26, 2002 judgment from the United States District Court for the Western District of New York, which dismissed his complaint against Erie County District Attorney Frank J. Clark, III, and Assistant District Attorneys G. Michael Drmacich and Barry A. Zavah. Kern alleges that his prosecution was a malicious effort to suppress his First Amendment rights as a public watchdog and activist. The district court dismissed the case based on the Younger abstention doctrine, which applies when there is an ongoing state criminal proceeding, the claim involves significant state interests, and the state proceedings allow for constitutional claims to be raised. Kern contends that abstention was inappropriate due to the alleged bad faith behind his prosecution, referencing the Younger decision that allows for federal court intervention in cases of bad faith or repetitive prosecutions. The appellate court found that the district court erred by dismissing Kern's complaint without conducting an evidentiary hearing to address factual disputes regarding his claims of bad faith. The case background includes charges against Kern for harassment, aggravated harassment, and stalking, stemming from complaints by Charlie Flynn, a local political figure, concerning Kern's conduct during public meetings and personal confrontations.

On June 25, 2001, Kern filed a complaint in the U.S. District Court for the Western District of New York, seeking both a preliminary and permanent injunction against the Erie County District Attorney's Office to prevent prosecution based on a complaint by Flynn. Kern alleged he faced a series of bad faith prosecutions intended to harass him due to his First Amendment advocacy. He reported having been subjected to ten criminal prosecutions linked to his watchdog activities, with only two cases being "adjourned in contemplation of dismissal," while the others had favorable outcomes for him, including dismissals due to insufficient charges.

Following Kern's federal complaint, his state criminal case and federal civil rights case progressed concurrently. The Buffalo City Court dismissed the criminal charges against him on September 7, 2001, but the formal judgment wasn't entered until May 20, 2002. The Erie County District Attorney's Office subsequently filed an appeal.

On October 9, 2001, a hearing was held regarding the defendants' motion to dismiss Kern's federal complaint, which resulted in a dismissal based on Younger abstention grounds on March 25, 2002. Kern appealed this dismissal on April 25, 2002.

In evaluating claims against Younger abstention, the plaintiff must demonstrate applicable exceptions. The standard for reviewing the district court's findings is clear error for factual matters, while the applicability of the 'bad faith' exception is a mixed question of law and fact. It remains ambiguous whether the district court applied the correct standard in its abstention decision, particularly regarding the determination of bad faith in the context of multiple prosecutions. The subjective motivation behind the prosecutorial actions is critical to the 'bad faith' inquiry, with potential implications for Kern's case if evidence of improper motive is substantiated.

The district court improperly determined that Kern did not show the defendants acted in bad faith regarding allegations of harassment, aggravated harassment, and stalking without holding an evidentiary hearing. Established law in the Circuit dictates that factual disputes necessitate a hearing before deciding on preliminary injunction motions, as reliance solely on affidavits is inadequate. The court's conclusion relied on defendants' conclusory affidavits asserting good faith, neglecting Kern's evidence suggesting a pattern of weak prosecutions driven by politically-connected complainants. Furthermore, the court mistakenly claimed Kern did not deny the actions alleged in the criminal information, despite his affidavit explicitly denying several allegations. Consequently, the district court's judgment is vacated, and the case is remanded for an evidentiary hearing to assess the applicability of the 'bad faith' exception to Younger abstention, with the parties responsible for their own costs. Kern's complaint included requests for injunctive relief, declaratory judgment, and attorneys' fees, supported by his affidavit detailing past prosecutions and corroborative documentation.