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AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, et al., Plaintiffs-Appellees/Cross-Appellants, v. TED STRICKLAND, Defendant, RICHARD CORDRAY, et al., Defendants-Appellants/Cross-Appellees. |
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Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 02-00210—Walter H. Rice, District Judge.
Argued: December 12, 2008
Decided and Filed: March 19, 2009
Before: MARTIN and KETHLEDGE, Circuit Judges; CARR, Chief District Judge.
BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs sued Ohio’s Attorney General and county prosecutors, arguing that Ohio Revised Code § 2907.31(D)(1) is unconstitutional under the First Amendment and Commerce Clause. The district court permanently enjoined its enforcement “as applied to internet communications,” on the basis that it is overbroad and violates the First Amendment. Am. Booksellers Found. for Free Expression v. Strickland, 512 F. Supp. 2d 1082, 1106 (S.D. Ohio 2007). Defendants appealed; and Plaintiffs cross-appealed the district court’s decision that the law is not void for vagueness, nor does it violate the Commerce Clause.
Although neither side addressed the issue of certification in their briefs or at oral argument, for the reasons below we sua sponte CERTIFY the questions set forth in II.B. of this order to the Supreme Court of Ohio under to Rule XVIII of the Rules of Practice of the Supreme Court of Ohio.
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In re: BLACK DIAMOND MINING CO., LLC, et al., Debtors. _____________________________________ Black Diamond Mining Co., LLC, Black Diamond Land Co., LLC, FCDC Coal, Inc., Martin Coal Processing Corp., Spurlock Energy Corp., Turner Elkhorn Mining Co., Wolverine Resources, Inc., and King & Spalding LLP, Appellants, v. Official Committee of Unsecured Creditors, Appellee. |
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Filed: March 19, 2009
Before: McIVOR, RHODES, and SHEA-STONUM, Bankruptcy Appellate Panel Judges.
King & Spalding LLP appeals the bankruptcy court’s order of April 29, 2008, denying the debtors’ application to approve its employment. Before the Panel can address the merits of the appeal, we must determine our jurisdiction over the appeal. BN1 Telecommunications, Inc. v. Lomaz (In re BN1 Telecommunications, Inc.), 246 B.R. 845, 848 (B.A.P. 6th Cir. 2000). For that reason, the Panel requested the parties to be prepared to address jurisdictional issues at oral argument.
The Panel has jurisdiction to hear appeals from final judgments of bankruptcy courts. 28 U.S.C. §§ 158(a)(1), (b)(1), and (c)(1).
The Supreme Court has held that in a civil case, an order disqualifying an attorney is not a final order. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S. Ct. 2757 (1985). The Supreme Court had previously reached this same result for an order denying a motion to disqualify an attorney. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S. Ct. 669 (1981). The Supreme Court has further held that the same result applies to an order disqualifying the defendant’s attorney in a criminal case. Flanagan v. United States, 465 U.S. 259, 104 S. Ct. 1051 (1984).
In the bankruptcy context, the Sixth Circuit has held that an order denying an application to appoint counsel is not a final order. Taunt v. Vining (In re M.T.G., Inc.), 403 F.3d 410 (6th Cir. 2005).
Based on this authority, the Panel must conclude that the order from which King & Spalding LLP appeals is not a final order. Therefore, the Panel lacks jurisdiction.
Accordingly, the appeal is DISMISSED.