Michael Salman v. City of Phoenix

*538 MEMORANDUM *

Plaintiffs-Appellants Michael and Suzanne Salman appeal from what we interpret as the district court judgment dismissing their action against the City of Phoenix. The Salmans do not dispute the district court’s denial of their request for an injunction restraining the execution of Michael Salman’s municipal court sentence and dismissal of their other section 1983 claims based on the collateral estoppel effect of Judge Martone’s dismissal of similar claims under Heck v. Humphrey, 512 U.S. 477 , 114 S.Ct. 2864 , 129 L.Ed.2d 388 (1994), in their prior federal action. However, the Salmans challenge the district court’s holding under the Rooker-Feldman doctrine that it lacked subject matter jurisdiction over their request for an order enjoining the City from implementing or enforcing Section 303 of the 2006 Phoenix Building Code on private religious gatherings and bible studies and over their other remaining claims. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and, under de novo review, we reverse.

The district court erred when it concluded that under Rooker-Feldman it lacked subject matter jurisdiction over the Sal-mans’ request for a prospective injunction…

dissenting:

• The Salmans were convicted in Phoenix Municipal Court of various city code violations. Their defense at trial was that the code sections in question unconstitutionally infringed on their right to freedom of religion. They argued the same point on *539 appeal to the Maricopa County Superior Court, which rejected the argument in reasoned decisions and affirmed their convictions. 1 The Salmans’ next step was to the Arizona Court of Appeals; that was unsuccessful, too. They made no effort to seek review by the Arizona Supreme Court or to petition for certiorari in the U.S. Supreme Court.

Instead, they brought this lawsuit against the City of Phoenix seeking the federal district court’s declaratory judgment on the very point on which they premised the defense of their criminal cases — that the Phoenix City Code sections are unconstitutional as applied to them. Of course, such declaratory relief would necessarily imply the invalidity of their convictions. As the district court correctly concluded, this suit is in reality a “forbidden de facto appeal” under this court’s precedents, and is therefore barred by the Rooker-Feldman doctrine. See Noel v. Hall, 341 F.3d 1148,…

FILED

NOT FOR PUBLICATION JAN 02 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL SALMAN and SUZANNE No. 12-16497

SALMAN,

D.C. No. 2:12-cv-01219-JAT Plaintiffs - Appellants,

v. MEMORANDUM*

CITY OF PHOENIX, a municipal corporation of the State of Arizona and UNKNOWN PARTIES, named as: John Does I-X, Jane Does I-X, Black and White Corporations I-X, and ABC Partnerships I- X,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, Senior District Judge, Presiding

Argued and Submitted October 10, 2014 Phoenix, Arizona

Before: WALLACE, SILVERMAN, and M. SMITH, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Plaintiffs-Appellants Michael and Suzanne Salman appeal from what we

interpret as the district court judgment dismissing their action against the City of

Phoenix. The Salmans do not dispute the district court’s denial of their request for

an…