Birdsong has a question for all you Constitutional Law students out there — how much do you know about the Abstention Doctrine?
If the answer is you never heard of it. You had better read some of the following Birdsong article before you take your Con Law final exam!
Here is the article:
COMITY AND OUR FEDERALISM IN THE
TWENTY FIRST CENTURY: THE ABSTENTION
DOCTRINES WILL ALWAYS BE WITH US –
GET OVER IT!!
By: Leonard Birdsong**
II. THE CLASSIC ABSTENTION CASES…………………………………………………………………..3
A. PULLMAN ABSTENTION………………………………………………………………………4
B. BURFORD ABSTENTION……………………………………………………………………….7
C. COLORADO RIVER ABSTENTION…………………………………………………………8
D. YOUNGER ABSTENTION…………………………………………………………………….10
III. SOME CRITICISMS OF THE ABSTENTION DOCTRINES………………………………….13
IV. THE ABSTENTION DOCTRINE IN THE TWENTY FIRST CENTURY……………….20
B. PULLMAN IN THE TWENTY FIRST CENTURY……………………………………21
C. BURFORD IN THE TWENTY FIRST CENTURY……………………………………37
D. COLORADO RIVER IN THE TWENTY FIRST CENTURY……………………..47
E. YOUNGER IN THE TWENTY FIRST CENTURY…………………………………..56
V. THE TALLY ON ABSTENTION IN THE TWENTY FIRST CENTURY…………………68
In the United States we are blessed – or cursed – with a legal system that contemplates
parallel judicial processes. We have a federal court system and each state has a separate state
court system. Since 1941 there has been considerable recognition of circumstances under which a federal court may decline to proceed though it has jurisdiction under the Constitution and federal statutes.1 The cases in which this has been recognized are usually referred to as the “abstention doctrine.”2 The abstention doctrine prohibits a federal court from deciding a case within its jurisdiction so that a state court can resolve some or all of the dispute.3 The purpose of such doctrine is to preserve the balance between state and federal sovereignty.4 This constitutional balance is often referred to as federalism or comity.5 Scholars have come to refer to not one, but a number of various types of cases which reflect various notions of comity for purposes of abstention. In practice it is more precise to refer to the “abstention doctrines”. These abstention doctrine cases reflect a complex of considerations designed to avoid friction between federal and state courts.6
Although integral to the workings of state and federal courts, the abstention doctrines have come under a legion of criticism from scholars over the years. Such criticisms are unwarranted. We need abstention in our parallel system of courts for the times that the interests of various states must outweigh federal adjudications. There is not an overabundance of such cases. The purpose of this article is to review the theories of the various classic abstention doctrines cases and their criticisms. The article will then review and analyze the abstention cases decided by the U.S. Circuit Courts since the beginning of our new century in order to determine whether they follow the dictates of the classic abstention cases. Such analysis will reveal that in our parallel court system comity and federalism demand that the abstention doctrines should always be with us. Abstention is not just a way for federal courts to shirk responsibility when it actually has jurisdiction. The critics of abstention must accept this – they must get over notions that the abstention doctrines must be, in some way, neutralized or abolished through legislation. In the twenty first century the federal courts are doing a fine job, on a case by case basis, of recognizing and implementing the need or lack of need for abstention.
II. THE CLASSIC ABSTENTION DOCTRINE CASES
Scholars and courts often refer to at least four distinguishable lines of abstention doctrines cases.7 These cases involve different factual situations, different procedural consequences, different support in the decisions of the Supreme Court, and different arguments for and against their validity.8 For the purpose of this article we will examine cases involving four different types of abstention doctrines that have appeared the most often in recent cases. These four are Pullman-type abstention; Burford-type abstention; abstention to avoid duplicative litigation, frequently referred to as Colorado River-type abstention.9 And, finally, Younger v Harris abstention which teaches that federal courts must refrain from hearing constitutional challenges to state actions under certain circumstances in which federal action is regarded as an improper intrusion on the right of a state to enforce its laws in its own courts.10 Let us review the classic cases from which the various abstention doctrines derive in order to understand criticism of the various doctrines, as well as obtaining an analytical framework to appraise the abstention cases decided in the twenty first century.
A. PULLMAN ABSTENTION
With Pullman abstention federal courts avoid decisions of federal constitutional questions when the case may be disposed of on questions of state law.11 The doctrine grows out of the now famous 1941 Supreme Court case Railroad Commission of Texas et al. v. Pullman Co.12 The opinion was written by Justice Frankfurter and involved an order by the Texas Railroad Commission that no sleeping car could be operated on any railroad line in Texas unless the cars were in charge of an employee having the rank of Pullman conductor.13 This new order had strong racial overtones. The Court found in those sections of Texas where the local passenger traffic was slight trains carried only one sleeping car. Such trains, unlike trains having two or more sleepers were without a Pullman conductor. Such sleeper was in charge of a Pullman porter.14 In 1941 all the Pullman conductors were white and all Pullman porters were black.15 Upon learning of the new Texas order the Pullman company brought action in federal district court to enjoin the Railroad Commission’s order.16 The Pullman company assailed the order as unauthorized by Texas laws, as well as violative of the Equal Protection, the Due Process Clause, and the Commerce Clause of the Constitution.17 The Pullman Porters, through their union, were allowed to intervene in the suit and objected to the order on the ground that it discriminated against African Americans in violation of the Fourteenth Amendment to the Constitution.18
The federal court convened a three judge panel which enjoined the enforcement of the order. The case went directly to the Supreme Court from the decree of the three judge panel.19 The Court found that the complaint of the Pullman porters tendered a substantial constitutional issue. Yet, the Court held that the issue was a sensitive one that touched on social policy upon which the federal courts ought not enter unless no alternative to its adjudication was open.20 The Court held that constitutional adjudication could be avoided if a definitive ruling on the state issue would terminate the controversy.21 The court then turned to a consideration of questions under Texas state law. Under Texas law the Court found a statute that maintained, in relevant part, “It is common ground that if the order is within the Commission’s authority its subject matter must be included in the Commission’s power to prevent unjust discrimination* * * and to prevent any and all abuses in the conduct of railroads.”22 The Supreme Court found that even though three federal judges had looked at the statute the federal courts could not be the final word on Texas law.23 The last word on the meaning of the Texas statute, and therefore, the last word on the authority of the Railroad Commission belonged to the Texas Supreme Court. The Court reasoned that the reign of law was not promoted if an unnecessary ruling of a federal court could be supplanted by a controlling decision of a state court.24 The Court further reasoned that the resources of equity were equal to an adjustment that would avoid the waste of a tentative decision as well, as the friction of a premature constitutional adjudication.25
The Supreme Court remanded the case to the district court with directions to retain the case pending a determination of the state proceedings.26 The Court here reasoned that if there was “no warrant in state law for the Commission’s assumption of authority there is an end to the litigation [and] the constitutional issue does not arise.”27 On the other hand if there were difficulties in the way, the issue of state law could be settled by appropriate action on the part of the State to enforce obedience to the order.28 The Court held that in the absence of any showing
that these methods for securing a definitive ruling in the state courts cannot be pursued with the full protection of the constitutional claim, the district court should exercise its wise discretion by staying it hands.29 The classic Pullman abstention case dictates that the federal court stay, but not dismiss the action while the state court makes its determination in resolving the issue of state law.
B. BURFORD ABSTENTION
Burford abstention is, also, recognized by federal courts. The doctrine is utilized to avoid
needless conflict with the administration by a state of its own affairs.30 The doctrine grew out of the case of Burford et al. v. Sun Oil Company.31 Burford like Pullman was a Texas case involving the Texas Railroad Commission. In the case Sun Oil attacked the validity of an order of the Texas Railroad Commission granting petitioner Burford a permit to drill four oil wells on a small plot of land in East Texas.32 The proceeding was brought in federal district court and was based on diversity of citizenship of the parties, and because of Sun Oil’s contention that the order denied them due process of law.33 The district court refused to enjoin the order of the Railroad Commission. The Court of Appeals reversed the finding. The case went to the Supreme Court where the district court’ s original decision was affirmed.34
The Supreme Court, in an opinion delivered by Justice Black, reasoned that abstention would be appropriate in this type of case. They held “that the questions of regulation of the industry by the State administrative agency, whether involving gas or oil prorating programs or Rule 37 cases, so clearly involves basic problems of Texas policy that equitable discretion should be exercised to give the Texas courts the first opportunity to consider them.”35 The Court held further that the “state provides a unified method for the formation of policy and determination of cases by the Commission and by the state courts * * * if the state procedure is followed from the Commission to the State Supreme Court, ultimate review of the federal questions is fully preserved.36 The Court concluded that under such circumstances, a sound respect for the independence of state action requires the federal equity court to stay its hand.37 Unlike Pullman
which allows the district to stay the proceedings while state court action is pursued, under Burford the federal action is dismissed.
C. COLORADO RIVER ABSTENTION
The Colorado River abstention doctrine is sometimes invoked to avoid duplicative
litigation, either in two different federal courts or in parallel proceedings in state and federal
courts. This abstention doctrine derives from the case of Colorado River Water Conservation
District v. United States.38 In Colorado River the United States brought suit in district court in its
own behalf and on behalf of two Indian tribes seeking a declaratory judgment as to its rights to waters and their tributaries in the Colorado water division No. 7.39 Shortly after the federal suit
was commenced, one of the defendants in the suit filed an application in the state court for Division 7 seeking an order directing service of process on the United States in order to make it a party to the proceedings in the state court for the purpose of adjudicating all of the government’s claims – both state and federal.40 Several defendants and intervenors in the federal proceeding then filed a motion in the federal district court to dismiss on the ground that the federal court was without jurisdiction to determine water rights.41 The district court dismissed the case on the theory that the doctrine of abstention required deference to the state court proceedings.42 On appeal the Tenth Circuit reversed.43
The Supreme Court in an opinion written by Justice Brennan recognized the general rule that “the pendency of an action in the state court is no bar to proceedings concerning the same matter in the federal court having jurisdiction.”44 The Court also considered whether the district court’s dismissal was appropriate under the doctrine of abstention. They found that the situation presented in Colorado River did not fit into the recognized abstention doctrines under Pullman, Burford or Younger v. Harris.45 Nevertheless the Court held that “the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention. The former circumstance, though exceptional do nevertheless exist.”46
The exceptional circumstances found warranting dismissal of the federal suit in Colorado River were: (a) the apparent absence of any proceedings in the federal district court, other than the filing of the complaint, prior to the motion to dismiss; (b) the extensive involvement of state water rights occasioned by this suit naming 1,000 defendants; (c) the 300 mile distance between the district court in Denver and the state court in division 7; and (d) the existing participation by the Government in state court proceedings in water Divisions 4,5, and 6.47
Colorado River reveals that the factual situation in that case was so unusual and the rule that only “exceptional circumstances” would permit dismissal in parallel proceedings was so strong, that the case argues against, rather than for, the use of this type of abstention in routine cases.48
D. YOUNGER ABSTENTION
The doctrine of abstention that grew out of the case of Younger v. Harris49 is known as “Our Federalism”. This doctrine teaches that federal courts must refrain from hearing constitutional challenges to state action under certain circumstances in which federal action is regarded as an improper intrusion on the right of a state to enforce its laws in its own courts.50
In Younger, the appellee, John Harris, Jr. was indicted in a California state court charged
with violation of a law known as the California Criminal Syndicalism Act.51 Harris then filed a complaint in federal district court asking the court to enjoin Younger, the District Attorney of Los Angeles County, from prosecuting him on the grounds that such prosecution would be a violation of his rights to free speech and press guaranteed under the First and Fourteenth Amendments.52 The district court convened a three judge panel that held the California Criminal Syndicalism was void for vagueness and overbredth in violation of the First and Fourteenth Amendments.53 The court issued an injunction restraining the District Attorney from further prosecution of the pending state action against Harris.54
The Supreme Court in an opinion delivered by Justice Black reversed the decision of the
district court.55 The court held that relief was barred because of “the fundamental policy against federal intervention with state criminal proceedings”56 and the “absence of factors necessary under equitable principles to justify federal intervention.”57 The Younger doctrine holds that “a federal court should not enjoin a state criminal prosecution begun prior to the institution of suit except in very unusual situations where necessary to prevent immediate irreparable injury.58 Of course, there is ordinarily no irreparable injury if the threat to the plaintiff’s federally protected rights can be eliminated by the defense of a single criminal prosecution, and “even irreparable injury is insufficient unless it is both great and immediate.59 The Supreme Court did, however, make clear that a federal injunction could run against a pending state criminal prosecution on a “showing of bad faith, harassment, or other unusual circumstance that might call for equitable
The Supreme Court gave the name “Our Federalism” to the concept of comity at the heart of the decision in Younger. “Our Federalism” was to be a doctrine of abstention that grew out of a “notion of comity, that is, a proper respect for the state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the
belief that the national Government will fare best if the States and their institutions are left free to
perform their separate functions in their separate ways.”61
Younger abstention has been expanded by the Supreme Court to apply to more than state criminal proceedings. In Samuels v. Mackell62 the Court held that in cases where the state criminal proceedings was begun prior to the federal suit the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in deciding whether to issue a declaratory judgment.63 If an injunction would be impermissible under these
principles, declaratory relief should ordinarily be denied as well.64 In 1975 The Supreme Court
expanded Younger to encompass quasi-criminal cases with their decision in Huffman v. Pursue,
In the classic sense the three main factors a federal court must analyze in determining
whether Younger abstention is warranted are: 1) would the federal proceedings interfere with an
ongoing state judicial proceeding 2) that implicates important state interests, and 3) affords an
adequate opportunity to raise federal claims.68
III. SOME CRITICISMS OF THE ABSTENTION DOCTRINES
Commentators and scholars criticize the abstention doctrines on a variety of grounds.
Charles Alan Wright reminds us that the price of Pullman- type abstention is not cheap.69 In a
number of cases it has led to delays of many years before the case was finally decided on its merits or limped to an inconclusive end.70 Wright also bemoans the fact that with Pullman-type abstention many federal litigants would not get their day in court. In Pullman the Supreme Court ordered the trial court to retain jurisdiction of the case while parties sought a state ruling on the state issues.71 The Court held that the federal constitutional objections must be presented to the state court, so that it may consider state law in the light of the constitutional claims.72 Wright notes, however, with such procedure if the state court should decide the federal issue, on ordinary principles of res judicata this would be a binding determination, subject to review only in the Supreme Court, and there would be nothing left for the federal court to decide in the exercise of
jurisdiction it had retained.73 Since the Supreme Court cannot hear every case tendered to it, this would mean that many litigants never would have a hearing in a federal court even though they
were asserting claims based on federal law.74
The scholars Lee and Wilkins argue that the wisdom of abstention doctrines is as questionable as its constitutional footing.75 They argue that Under Article III of the Constitution, Congress created the lower federal courts and specified their jurisdiction. In this regard they note that the courts of the United States are bound to proceed to judgment and to afford redress to suitors before them in every case to which their jurisdiction extends.76 They cannot abdicate their authority or duty in any case in favor of another jurisdiction. But despite this well established principle, Lee and Wilkins argue that the abstention doctrines permit federal courts to decline the exercise of congressionally conferred jurisdiction.77 They raise the question whether the judiciary has the authority to ignore the dictates of valid jurisdictional statutes.78 They agree with those who argue that abstention doctrines could be characterized as judicial usurpation of legislative authority in violation of the principle of separation of powers.79
Lee and Wilkins further argue that legislation is needed since the federal courts have usurped traditional legislative prerogatives legislation with the creation of the abstention doctrines. They propose federal legislation that would direct when abstention could properly be invoked and which would minimalize cost to litigants.80 The legislation they propose to accomplish these ends appears rather simple.81 However, since their 1990, article Congress has proposed no legislation to codify the use of the abstention doctrines and probably never will.
Lee and Wilkins should be reminded that Congress has already passed some such legislation. Congress’ original statute passed in 1793, known as the Anti-Injunction Act, prohibits a federal court from issuing a writ of injunction to stay proceedings in any court of a state.82 That statute has been updated and now is codified as 28 U.S.C. § 2283.83 The statute as originally written and in its present form was “calculated to prevent needless friction between state and federal courts and represented Congress’ considered judgment as to how to balance the tensions inherent in a dual system of courts.”84 The United States Supreme Court, however, has held that actions brought under 42 U.S.C. § 1983 are specifically excepted from the Anti-Injunction Act, and the statute has been interpreted as to not ban federal courts from enjoining enforcement of a state court order.85
A review of the cases undertaken later in this article demonstrate the competence and thoroughness of the federal circuit courts in recognizing whether they must accept jurisdiction and when comity would counsel a wise staying of the courts’ hand. Despite Lee and Wilkins proposals legislation is not needed with respect to abstention. The federal courts are doing what needs to be done with respect to abstention and there certainly appears to be no abuse to litigants.
Another scholar James C. Rehnquist contends that the abstention doctrine should be reoriented to reflect the Constitution’s fundamental forum neutrality.86 It is Rehnquist’s thesis that a federal court’s abstention is justified only when a duplicative suit is first filed in state court and provides the litigant with an adequate opportunity to raise their federal claim.87 He posits a “first filed rule.”88 Rehnquist’s rule of abstention provides: “A federal court should abstain if, and only if, the federal plaintiff has an adequate opportunity to litigate his federal claim in a duplicative suit already pending in state court.” 89
Rehnquist himself acknowledges the main problem with such a rule. He writes: “as with all general rules, the edges of this one beg many questions. What does “duplicative” mean? When is a case “pending”? How can state courts be made to abide by the principle of functional equivalence? What is an “adequate opportunity to litigate?”90 If these questions can be answered Rehnquist argues that his “first filed rule” would provide a simpler, cleaner and theoretically superior abstention doctrine. However, it is doubtful that various federal or state courts will be able to reach consensus as to what “duplicative” mean; or when a case is “pending”; or what is an adequate “opportunity to litigate.” What court would buy such “first filed rule”?
A more practical argument is made by Theodore B. Eichelberger who recognizes that there are strong policy reasons underlying Pullman-type abstentions.91 He recognizes, further, that the doctrine invariably causes delay – delay which can effectively deny a plaintiff his constitutional rights. Eichelberger argues that federal courts could avoid such difficult decisions and at the same time reduce delay by using a certification procedure, rather than abstention, for resolution of the uncertain state law questions.92 He, also argues that delay could be further reduced if the certification statutes required that state court gave priority on their dockets to certified questions in fundamental rights cases.93
He reminds us that certification to state high courts of doubtful state law questions are a relatively recent development. Until 1965, only Florida had an established certification procedure.94 By 1984 Eichelberger found that twenty four states and Puerto Rico have certification procedures.95 Today 44 states, the District of Columbia and Puerto Rico have certification statutes.96 Although certification statutes vary among the states, Eichelberger found that the majority of those states permit certification by the federal trial and appellate courts.97 He also found that most such state statutes require that the certified question be such that it could be determinative of the case.98 Nevertheless, not all of the states have adopted a certification statute.
In sum, the commentators and the scholars decry the abstention doctrine for a number of reasons including Wright’s complaint about cost, delay and uncertainty; Lee and Wilkins’ questions concerning judicial usurpation of legislative authority; Rehnquist’s arguments for a “first filed rule” to obviate the need for formal abstention doctrines; and Elchelberger’s argument for the increased use of certification statutes to obviate the need for abstention.
Yet, despite the protestations and suggestions by the scholars it appears that the abstention doctrines are still with us. Despite the cost and the delay that the doctrine may sometimes bring there has been no federal legislation to codify abstention and take it away from the federal courts. We already have an anti-injunction statute in force. The Courts will never be able to agree on a “first filed rule.” And even with forty four states now having certification statutes abstention sometimes fall between the cracks of how such statutes may be written. It is now the twenty first century and federal courts are still churning out decisions which demonstrate the need for abstention. To the critics of abstention this commentator says – Get Over It! The abstention doctrines will always be with us as long as we continue to recognize the necessity of comity and “Our Federalism” in our parallel judicial system.
Perhaps, it would be better if the commentators and scholars would take a look at the
abstention cases that have been decided since the beginning of the twenty first century. A review of those cases would show them the “sky is not falling” with respect to the use of the abstention doctrine.
The next sections of this article surveys twenty first century abstention doctrine cases and
analyzes them against the backdrop of their classical underpinnings. Such a review will show the critics that as a result of the need for comity and “Our Federalism” the sky is, truly, not falling with respect to abstention.
IV. THE ABSTENTION DOCTRINES IN THE
TWENTY FIRST CENTURY
A search of the federal case law on abstention since the year 2000, revealed that 163 federal cases made some mention of abstention.99 Ninety three of the cases involved
abstention as a major issue in the opinion. Approximately seventy five of these cases were reported decisions. This article surveys only those abstention doctrine cases that are reported in the West Federal Reporter Series. Abstention doctrine cases were reported in all circuits, except for the District of Columbia and Federal Circuit. This in itself shows, anecdotally, that Abstention is still well with us into the twenty first century.
The search of the case law revealed no Supreme Court cases deciding an abstention question in the twenty first century. The only Supreme Court decision found to even mention abstention was Stenberg v. Carhart,100 which involved a constitutional challenge to the State of Nebraska’s statute banning “partial birth abortion.” In an opinion written by Justice Breyer the Supreme Court held the statute unconstitutional because it lacked any exception for the preservation of the health of the mother and was over broad.101 In answer to the Nebraska Attorney General’s argument that the Supreme Court should accept a narrowing interpretation of the partial birth abortion statute or certify the question to the Nebraska Supreme Court, Justice Breyer wrote:
Finally, the law does not require us to certify the state-law question to the Nebraska Supreme Court ** ** ** Even if we were inclined to certify the question now, we cannot do so. Certification of a question (or abstention) is appropriate only where the statute is “fairly susceptible” to a narrowing construction …. We believe it is not.102 (Emphasis added).
Not much wisdom from the Supreme Court on abstention in the twenty first century. The action with respect to abstention was in the circuits. Let us review how the circuits handled the various types of Pullman, Burford, Colorado River, and Younger abstention cases.
B. PULLMAN IN THE TWENTY FIRST CENTURY
In reviewing Pullman abstention in the twenty first century we must be mindful of the general rule of Pullman. That is, Pullman counsels abstention by federal courts in order to avoid decisions of federal constitutional questions when the case may be disposed of on questions of state law.103 Courts often explain that in order for Pullman abstention to be appropriate the case must involve (1) a federal constitutional challenge to a state action and (2) an unclear issue of state law that, if resolved, would make it unnecessary for a federal court to rule on the federal constitutional claim.104
Since the turn of the twenty first century Pullman abstention was found to be a major issue in twelve reported cases. Pullman abstention was found appropriate in four of such cases. Those four cases originated in the First, Fifth and Eleventh Circuit Courts. In these cases we will see the classic Pullman situations concerning constitutional questions and unclear state law.
What will appear “unclassic” about these four cases is the number of times that the circuit court is the first to raise, sua sponte, abstention as an the deciding issue in the case.
In the first of these cases, Ford Motor Company v. Meredith Motor Company, Inc,105 the First Circuit held that Pullman abstention was warranted. The facts reveal that Meredith Motor Company filed a protest with the New Hampshire Motor Vehicle Industry Board pursuant to that State’s Motor Vehicle Franchise Act,106 following Ford Motor Company’s decision to relocate a competing dealer into Meredith’s market area.107 While that proceeding was pending, Ford filed an action in federal district court seeking a declaratory judgment that the Franchise Act was not retroactive and in the alternative, that retroactive application of the Franchise Act would violate the Contract and Due Process Clauses of the Constitution of the United States.108
The Board found Ford in violation of the Act.109 Shortly thereafter, the federal district court issued an order declaring that the Franchise Act was intended to be applied retroactively and that such act was constitutional.110 The First Circuit declared that “because the constitutional questions raised in the appeal rested on questions of state law that may be resolved by the New Hampshire state courts, we hold that Pullman abstention is proper in this proceeding”111
The circuit court observed in their opinion that “although the district court did not address the issue of abstention, we note that it was raised in the pleadings below and at oral argument … a court may raise the issue of abstention sua sponte.”112 The court, in assessing the appropriateness of abstention had to determine (1) whether there was substantial uncertainty over the meaning of the of the state law at issue; and (2) whether a state court’s clarification of the law would obviate the need for a federal constitutional ruling.113 The court found both factors. First, with respect to state law, the court found that the “applicability of the state statute that contracts formed before its passage was unclear … [and] this issue forms the crux of the dispute between Ford and Meredith and neither party has pointed to an authoritative New Hampshire decision that resolves the ambiguity.”114 Secondly the court found that Ford’s federal claim turned entirely on its statutory claim; the Contracts and Due Process clauses are implicated only if the state law was found to be retroactive. Consequently, the court reasoned that “a dispositive state court interpretation of this
issue could eliminate entirely the need to address the constitutional issue.115
Finally, the court took into consideration the federalism concerns supporting abstention. In particular the court alluded to “the implications of granting Ford its required relief would be to declare that the Board lacked jurisdiction to hear the protest in the first instance, an outcome that would disrupt substantially the review proceedings then pending before the [state] court.”116 The court here reasoned that the avoidance of needless friction between the federal and state proceedings carried weight in its decision to abstain.117 The First Circuit vacated the judgment of the district court and remanded the case with an order for the district court to retain jurisdiction pending final review of the Board’s decision in the New Hampshire state courts.118 These actions make for the classic Pullman scenario.
In Cruz v. Melecio119 the First Circuit, also, sua sponte120 invoked abstention in a case involving members of a new political party seeking declaratory and injunctive relief against members of Puerto Rico’s Election Commission. Cruz and another member of the party challenged the constitutionality of certain provisions of Puerto Rico law regulating access on the part of political parties.121 Cruz and the Partido Accion Civil (the Party) sought to register their party on a commonwealth wide basis in order to have its candidates appear on the November 2000 general election.122 In order to do so they learned that they would have had to file notarized petitions with the Election Commission showing signatures for 100,000 registered voters within a seven day period.123
Viewing such hurdles as nearly insurmountable the Party filed for declaratory and injunctive relief in Puerto Rico’s federal district court.124 The Party argued that the notarization requirement and the seven day deadline, separately and in combination, was a violation of the First and Fourteenth Amendment rights to free speech, and associations and in violation of the right to participate meaningfully in the political process to vote and to enjoy equal protection of the law.125 Melecio, the defendant and the Election Commission chairman, moved for dismissal of the federal action.126 The Puerto Rico Attorney General intervened and joined Melecio’s motion to dismiss on the ground that the Party’s actions were barred by res judicata.127 The reference to res judicata related to an earlier action filed by the party in a commonwealth court challenging the same ballot access requirements.128 The Party had lost in the trial court and had also lost in the court of appeal.129 The commonwealth action was on appeal to the Puerto Rico Supreme Court awaiting a decision at the time of the federal suit.130
The district court “elected neither to delve into the intricacies of the res judicata defense nor to address the appellants’ prayer for preliminary injunctive relief. Instead it went straight to the heart of the case and dismissed the action on its merits.”131 The First Circuit Court of Appeals held that because courts must view severe restrictions on party ballot access skeptically, dismissal for failure to state a claim was unwarranted.132 The court further held that the fact specific nature of the inquiry obviated a resolution of the case on the basis of the complaint alone.133 The court could have ordered remand of the dismissal. Instead, the court recognized that considerations of federalism, comity, and sound judicial administration prompted the path of abstention.134 The court found that the distinguishing circumstance was the fact that appellants filed suit in federal court while still pursuing an appeal from a disposition of the same claims through the commonwealth Courts.135
The First Circuit realized that appellants, already in the jurisdiction of the state court, had then filed an action in federal court. Such actions sought to bring about an “unseemly conflict between two sovereignties which the doctrines of comity and abstention are designed to avoid.”136 The factors which convinced the court that abstention was appropriate in this case included: (1) the notion that federal courts should exercise their equitable powers with discretion, that is, just because an equitable remedy was available that it did not have to be used;137 (2) the fact that the commonwealth suit had not been filed first, but that it progressed much further than the federal case;138 (3) the case before the Puerto Rico Supreme Court was more comprehensive than the newer federal case because it covered both commonwealth and federal constitutional claims: as a result there was a real possibility that the Puerto Rico Supreme Court would decide the case on state law grounds in a way that altogether avoided the necessity for federal constitutional adjudication;139 and finally, (4) the court realized that the Puerto Rico Supreme Court stood poised to enter a judgment on the merits that would probably carry full preclusive effect under Puerto Rico law.140 The dismissal was reversed and the case remanded to the district court with orders to stay the proceedings pending outcome of the Puerto Rico Supreme Court decision.141 Again, a classic Pullman out come.
In Nationwide Mutual Insurance v. Unauthorized Practice of Law Committee142 the Fifth Circuit Court of Appeals, also, found that Pullman abstention was warranted. Nationwide, an insurance company, sued Texas’s Unauthorized Practice of Law Committee (the UPLC) in federal district court.143 Nationwide sought a declaration that Texas law did not prohibit it from employing salaried staff attorneys to represent insureds in policy-related cases.144 Nationwide also sought a declaration that the Texas State Bar Act, as interpreted by the UPLC, violated the federal constitution’s Due Process Clause and First Amendment. The district court found that the State Bar Act’s unauthorized practice of law provisions to be unclear and abstained from exercising its jurisdiction under the Pullman doctrine.145
The Fifth Circuit upheld the district court. The court found that Nationwide employed staff attorneys, duly licensed under state law, to conduct discovery, draft and file court documents, and to appear in court to represent its insureds.146 The only difference between these staff attorneys and outside counsel was that the staff attorneys were salaried employees of Nationwide; they were not independent attorneys paid on a per case basis.147
The court also found that prior to filing suit, Nationwide had learned that the UPLC had sued Allstate Insurance Company in a Texas state court, alleging that Allstate’s employment of staff attorneys the unauthorized practice of law.148 A number of other insurance companies had intervened in the Allstate litigation. Nationwide had chosen not to intervene but went directly to federal court seeking a declaratory judgment.149 Nationwide averred in its
complaint that there was no disciplinary rule, ethical opinion, or any case law in Texas prohibiting
an insurance company from using staff attorneys to defend its insureds.150
The circuit court reasoned that abstention was warranted under Pullman because there was (1) a federal constitutional challenge to a state action – the UPLC was a state agency attempting to prohibit Nationwide from employing staff attorneys; 151 and (2) the court found no Texas cases that prohibited an insurance company staff employees from representing insureds.152 In light of these facts the court held that the law would be fairly susceptible to a reading that would permit Nationwide to employ staff counsel.153 The court further held that “while the Texas courts may decide that Nationwide’s staff attorneys are engaged in the unauthorized practice of law…. the state law is uncertain enough on this issue that we should abstain from ruling on its federal constitutionality.”154 The court held, further, that “given that the strictures of the Pullman doctrine were satisfied in light of Texas’s interest in policing its state bar, the district court did not abuse its discretion in applying Pullman in this case.”155 Another classic Pullman decision.
In DeJulio v. Georgia156 the Eleventh Circuit Curt of Appeals found that Pullman abstention was warranted in a voting rights action. This case involved the enactment of local
legislation by the Georgia General Assembly.157 Due to the volume of such local legislation the House and Senate of the General assembly adopted a scheme whereby local delegations were formed to consider passage of such local legislation.158 Each county, municipality, or other jurisdiction had a local delegation and any legislator whose district encompassed territory within any specific city or county was a member of the local delegation for that entity.159 The local delegations made recommendations to the House and Senate Standing committees which then recommended local legislation to the entire body.160 If local legislation received the requisite number of signatures of representatives and senators it ordinarily passed on an uncontested basis as a matter of courtesy. For local legislation to become law the Governor of Georgia must sign it within forty days from the end of the legislative session.161
Plaintiffs DeJulio and Galambos (Voters) filed a voting rights action in federal district court pursuant to 42 U.S.C. § 1983, the Fourteenth Amendment of the Constitution and the Voting Rights Act of 1965, as amended, alleging that the procedures for enactment of local legislation of the General Assembly violated the “one person, one vote” standard.162 The district court granted summary judgment to the State of Georgia after determining that (1) the one person one vote standard did not apply to the local legislative delegations and (2) the changes in internal rules and procedures by which the General Assembly enacted local legislation was not violative of the Voting Right Act.163 The Voters appealed.
The Eleventh Circuit reversed in part and affirmed in part and remanded the case to the district court. The court reversed the dismissal on the grant of summary judgment reasoning that “because this issue is better determined by the state the district court should have invoked Pullman abstention…. by abstaining in such cases federal courts ‘avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on state law, and premature constitutional adjudication’.”164 The court noted that it was raising abstention sua sponte.165 The court reasoned that the two criteria had been established for the application of the Pullman doctrine: (1) the case presented an unsettled question of state law in that whether the local delegations perform governmental functions which subjected them to the “one person, one vote” requirement was appropriate only for the state court to decide166 and (2) on the question of whether state law must be dispositive of the case or would materially alter the constitutional question presented the court found that the relief sought by Voters regarding the validity of the house and Senate rules may have been available under Georgia law, thus the district court should not have decided the merits of the federal constitutional claims.167 The court held that it would be speculation to conclude that the Georgia courts were not, capable of resolving the instant dispute.168 The court further held that principles of federalism limit the power of federal courts to intervene in state elections.169 The court affirmed the district court’s ruling that the procedural changes to the internal Rules of the General Assembly were not subject to the Voting Rights Act.170
It is evident that the First, Fifth, and Eleventh Circuit Courts of Appeals followed the classic dictates of Pullman in finding abstention appropriate in the foregoing cases. Ford Motor,171 Cruz,172 Nationwide Mutual173 and DeJulio174 all involved constitutional challenges to state laws that were unclear. The Circuit Court in each case deferred to the state to first resolve their state law while the feral courts stayed its hand. It is surprising that the circuit courts granted Pullman abstention sua sponte in three of the four such cases where Pullman was found appropriate. This includes Ford Motor, Cruz, Mutual and DeJulio, two cases from the First Circuit and one from the Eleventh Circuit. Does such fact indicate the poor quality of the lawyering in not recognizing the need for abstention, or could it have been a legal strategy to avoid abstention in an effort to cap cost. Or, were the district courts just asleep at the switch in failing to recognize that abstention, as a doctrine, was surprisingly still alive in the twenty first century?
Before we leave the workings of Pullman abstention in the twenty first century, perhaps, it would give us a better appreciation of the work of the circuit courts with respect to Pullman abstention if we were to briefly compare some of the cases wherein Pullman abstention was found not warranted. Pullman abstention was found to be not warranted in eight cases decided by the circuit courts since the beginning of the new century. Among the more interesting of these cases are decisions from the First, Second, Third, Sixth, and Ninth Circuit Courts of Appeals.
The First Circuit found Pullman abstention was not warranted in the case of Bonas v. Town of Smithfield.175 Therein four registered voters in North Smithfield, Rhode Island sought declaratory and injunctive relief in federal district court to compel the holding of a town election in 2001.176 Defendants argued, among other defenses, that the townspeople had ratified a referendum in 1998, designed to transition the town from an odd-year election cycle to an even-year cycle beginning in 2002.177 The defendants contended this referendum obviated the need for a 2001 election.178 The district court found the town charter still authorized a 2001 election and ordered that the election be held.179 The Circuit Court confirmed this ruling holding that the decision not to hold the election was deliberate and if allowed to stand would deprive all citizens of the town of their right to vote.180 The court further held Pullman abstention was not appropriate because the relevant charter provisions of the town were clear in and, thus, there was no ambiguous state or local law.181
In Vermont v. Sorrell,182 the Second Circuit upheld the district court’s ruling that Pullman was not warranted. That case involved the Vermont Right To Life Committee’s § 1983 against state officials seeking declaratory judgment that sections of Vermont’s campaign finance laws establishing disclosure requirements for mass media expenditures was facially unconstitutional under the First Amendment of the Constitution.183 The Second Circuit ruled that district courts must “exercise particular caution before abstaining where a plaintiff has raised a facial constitutional challenge and the attendant delay would work to inhibit exercise of the First Amendment freedoms injured by the statute’s existence.”184 The court further held that “In the context of First Amendment claims, Pullman abstention has generally been disfavored where state statutes have been subjected to facial challenges.”185
In Planned Parenthood of Central New Jersey v. Farmer,186 the Third Circuit upheld a district court’s ruling that New Jersey’s “partial birth abortion” law was unconstitutionally vague and an undue burden on a woman’s right to obtain an abortion.187 Planned Parenthood and several physicians had brought a § 1983 action against the Attorney General of New Jersey the day the state’s “partial birth abortion” ban law became effective.188 The district court, after a hearing permanently enjoined enforcement of the new law.189 The Third Circuit found the law unconstitutional and found no reason that the district court should have abstained.190 The court held that “the district court had carefully considered whether it should abstain under Pullman and concluded that abstention was not warranted because the Act was so vague that it was not susceptible to a state court interpretation which would render unnecessary, or substantially limit,
the federal constitutional question.”191
The Sixth Circuit in Associated General Contractors of Ohio v. Drabnik,192 also, upheld a district court’s decision and found Pullman abstention unwarranted. The facts therein reveal that several general contractor associations in the state of Ohio brought an action against state officials seeking declaratory judgment that a section of Ohio’s Minority Business Enterprise Act (MBEA) providing for racial and ethnic preferences in state construction contracts was unconstitutional on Equal Protection grounds.193 The district court agreed and permanently enjoined the state from awarding any construction contracts thereunder.194 The Sixth Circuit agreed that the provision violated Equal Protection since it was not narrowly tailored to meet compelling government interests.195 The court also held that there was no need to abstain under Pullman in the case because a “federal court owes no duty abstain in deference to a state court when a federal constitutional question is at issue,196 as in the instant case.
Fireman’s Fund Insurance v. City of Lodi, California,197 was an complicated case wherein various insurers brought actions for declaratory and injunctive relief against Lodi, California.198 The complaint alleged that the local Comprehensive Municipal Environmental Response and Liability Ordinance (MERLO), which permitted the city to investigate and remediate the hazardous waste contamination of its soil and groundwater was preempted by federal and state law.199 The district court dismissed the claims on the grounds that Pullman abstention was appropriate.200 The Ninth Circuit Court of Appeals reversed the abstention ruling but affirmed other parts of the decision.201
The circuit court found abstention not warranted because there was (1) no sensitive area of social policy that was best left to the states to address in the case and (2) there was no uncertain state law issue in the case that should have been decided by the state court.202 In essence the court ruled that the local MERLO ordinance was not an issue best left to the states because federal government had definitely entered the field of hazardous waste remediation and state court determination of the issue would not relieve the federal court of its duty to resolve constitutional issues.203
It is not surprising that Pullman was found to be inappropriate in these cases. None of them fit the classic mold for Pullman abstention. In each of these cases either the state law in question was clear; or there was no question of state law at issue; or there was federal question; or there was federal preemption. In such cases there is no need for comity and, thus, no need for abstention.
C. BURFORD ABSTENTION IN THE TWENTY FIRST CENTURY
Burford abstention is utilized by the federal courts to avoid needless conflict with the administration by a state of its own affairs.204 As stated earlier in this article, the doctrine grew out of the case of Burford et al. v. Sun Oil Company.205 In that case Sun Oil attacked the validity of an order of the Texas Railroad Commission granting petitioner Burford a permit to drill four oil wells on a small plot of land in East Texas.206 The proceeding was brought in federal district court and was based on diversity of citizenship of the parties, and because of Sun Oil’s contention that the order denied them due process of law.207
The Supreme Court reasoned that abstention would be appropriate in this type of case,
holding “that the questions of regulation of the industry by the State administrative agency * * *
so clearly involve[d] basic problems of Texas policy that equitable discretion should be exercised
to give the Texas courts the first opportunity to consider them.”208 The Court concluded that under such circumstances, a sound respect for the independence of state action requires the federal equity court to stay its hand.209 Unlike Pullman which allows the district court to stay the proceedings while state court action is pursued, under Burford the federal action is dismissed.
With this understanding of the Classic Burford case, let us examine the Burford situations the federal courts have considered in the twenty first century. The federal circuit courts have considered Burford arguments in twelve cases. Such cases have arisen in most of the circuits, except for the Third, Fifth, Seventh, Eighth and the District of Columbia circuits. Burford abstention was found appropriate in three cases arising in the First, Second and Third circuits. Although all three were decided under Burford, the 1996 case of Quakenbush v. Allstate Ins. Co.,210 would have an effect on whether these cases could be dismissed outright as in the classic Burford case.
In Dunn v. Cometa211 a case from the state of Maine, the First Circuit upheld the district
court’s dismissal of portions of a case based on Burford abstention. In Dunn a father acting on
behalf of himself and his brain damaged son brought suit for money damages alleging tort claims
arising from the former wife’s care of the son.212 At the time of the suit Cometa, the wife had
obtained a divorce from Dunn. The dismissed counts of the suit charged intentional infliction of emotional distress, negligent infliction of the same, and malice growing out of Cometa’s alleged mismanagement of his care and insurance and by her conduct relating to her romantic association
with a third party during Dunn’s incapacitation.213
The district court dismissed the aforementioned charges on abstention grounds on the rationale that they “implicate murky, cutting-edge area of Maine public policy.” Other counts of the suit were dismissed on the grounds that they fell within the domestic relations exception to federal court jurisdiction. Still, other claims in the suit were dismissed on grounds that they failed to satisfy the jurisdictional amount requirement.214 The circuit court did not agree with the district court’s dismissal of part of the suit on grounds of the domestic relations exception but did uphold the use of abstention finding that in “certain circumstances, the abstention principles developed in “Burford .. might be relevant in a case involving elements of the domestic relationship even when the parties do not seek, alimony, or child custody. This would be so when a case presents ‘difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar’.”215 The court held that the case fit squarely within Burford and that abstention made good sense as a means to “soften the tensions”216 of the dual federal-state court system. The court, also, held that the claims were 1) based upon purely state law claims; 2) the claims were based upon conduct in a family context; and 3) the legal framework for such claims had not been fully developed in state law.217 The court further held that if state law were clear there would be no reason to abstain in the case.218
In the end the First circuit departed from the classic Burford model of dismissal of the case as a remedy under the holding of a 1996 case Quakenbush v. Allstate Ins. Co.,219 wherein the Supreme Court held that dismissal of a common law damage action is not allowed under Burford
abstention where money damages were sought instead of injunctive or other discretionary relief.220 Neither side below had called to the district court’s attention the Quakenbush holding. The circuit therefore remanded the case with an order to stay the proceedings.221
In 767 Third Avenue Associates v. Consulate General of Socialist Federal Republic of Yugoslavia222 the Second Circuit considered a case brought by landlords who had leased space to the former Socialist Federal Republic of Yugoslavia (SFRY), which had ceased to exist beginning in 1991.223 The landlords brought suit against successor states, seeking determination that these successor states were liable for the debts incurred by SFRY.224 The district court determined that the action presented nonjusticiable political questions225 and stayed all matters in the case and placed it on the suspense calendar.226
The circuit court agreed that the case was nonjusticiable and supported the district’s court reliance on the doctrine of Burford abstention “where a federal court abstains ‘on grounds of comity with the States where… federal review of the question … would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern’.”227 The court further supported the district court’s reasoning that its deference to resolution of the dispute by international negotiations or by the Executive228 was akin to the “principles of comity and federalism” that support a stay of federal action until state proceedings have been concluded.229 Nevertheless, the court believed that the entry of the stay order in this case was inappropriate because the case would never be ripe for a judicial determination.230 The court, thus, vacated the stay and remanded the case with an order to dismiss the action.231 Thus, a classic Burford decision.
In Johnson v. Collins Entertainment,232 the Fourth Circuit denied a petition for rehearing
with a suggestion for rehearing en banc in a case which had arrived in federal district court on removal by defendants.233 The defendants in the case were operators of video poker machines in
South Carolina. Having successfully removed the case to federal court, a group of the video poker operators then argued that federal jurisdiction was inappropriate.234 A panel of Fourth Circuit judges had agreed and had held that the district court should have abstained under Burford instead of issuing an injunction.235 At issue was whether the video poker operators violated South Carolina’s statutorily-imposed $125 limit on payouts from video machines, and, if so, whether this constituted a “special inducement” or an unfair trade practice under South Carolina law.236
On the petition for rehearing with suggestion of rehearing en banc the court, again, held the case appropriate for Burford abstention and not an injunction. They held that the case was “dominated by unsettled questions of state law … these state law issues bear on policy problems of substantial public importance… at the heart of the state police power.”237 The court also found that the state courts had been addressing the questions of payout limit interpretation and the application of state unfair competition law to the payout statute at the very time the district court had rendered its pronouncements.238 The court concluded “Burford abstention is rooted in the law of remedies being ‘derived from the discretion historically enjoyed by courts of equity.’…The premise underlying abstention is that federal courts should not exercise expansive remedial powers when to do so would damage principles of federalism and comity … To condone the district court’s action …. would be to endorse broad federal equitable sway over the most basic state regulatory functions.”239 Again, this was a classic Burford decision.
In nine other cases the federal circuit courts found that Burford abstention was not appropriate.240 A few of the more interesting such cases include Gross v. Weingarten.241 In Gross the Fourth Circuit reviewed a case brought by a deputy receiver of an insolvent insurer against directors of the insurer and stockholders in the insurer’s parent company. Summary judgment had been granted to defendants in the case.242 On appeal the deputy receiver argued for dismissal of the matter on abstention grounds pursuant to Burford. The court rejected this argument and stated: “federal courts frequently have relied on the abstention doctrine to avoid disruption of state insurance insolvency proceedings … We find, however, that dismissal on abstention grounds is inappropriate on the facts of this case.”243 The court found that the defendant’s legal claims for money damages could not be dismissed under the equitable doctrine
of abstention.244 They also found one of the defendant’s claims was subject to exclusive federal
jurisdiction under § 10(b) of the Securities Exchange Act of 1934 – and thus could not be dismissed.245
In Johnson v. Rodrigues,246 Tenth Circuit reversed the district court dismissal of claims and held that Burford abstention and related theories did not apply to an alleged father’s constitutional claim seeking invalidation of Utah adoption statutes.247 The court reasoned that the alleged father’s constitutional claim did not depend on the status of the parties and it did not present difficult questions of state law bearing on policy problems of substantial public import.248 The court held that the plaintiff’s constitutional claim only required the district court to determine whether a Utah statute violated plaintiff’s federal constitutional rights.249 Thus, the claim only asked the district court to act within its area of expertise rather than to invade the province of the state.250
The case of Seigel v. Lepore251 grew out of the disputed Presidential election of 2000. In Seigel the Eleventh Circuit found abstention under Burford was inappropriate wherein registered voters sued election canvassing boards in four Florida counties to enjoin manual recounts of ballots cast for President.252 The district court denied a preliminary injunction.253 The defendants, on behalf of the Democratic candidate, Vice President Gore, argued that the federal courts should abstain from hearing the case under Burford. 254 The circuit court disagreed and held that “a central purpose furthered by Burford abstention is to protect complex state administrative processes from undue federal influence.”255 The court found that case did not threaten to undermine all or a substantial part of Florida’s process of conducting elections and resolving election disputes. Instead the court found that plaintiff’s 1) claims in the case targeted only certain discrete practices set forth in a particular state statute concerning elections;256 and
2) that the case did not threaten to undermine Florida’s uniform approach to manual recounts.257 Abstention under Burford was not necessary. The court upheld the district court’s denial of the preliminary injunction.258
Review of the cases reveal that in the twenty first century the Burford abstention doctrine decisions have strayed a bit from the classic case of Burford v. Sun oil,259 wherein the Supreme Court mandated dismissal of the action. In Dunn260 the First Circuit found Burford abstention appropriate because the case implicated a “murky, cutting -edge area of Maine public policy.261 Yet the court decided that the case could not be dismissed pursuant to the 1996 holding by the Supreme Court in Quakenbush.262 So in Dunn we have an important state interest that the state and not the federal court should regulate. However, since the plaintiffs sought money damages the court must stay the proceedings until a state court decides a number of issues. In 767 Third Avenue Associates263 the Second circuit reasoned that the district court was correct in finding Burford abstention appropriate in order that the executive branch of the government might decide the issue of whether successor states were liable for unpaid rents. However, the circuit court chided the district court for putting the case on the suspense calendar. Classic Burford and the facts of this case demanded dismissal. The case would never be ripe for judicial determination. Finally, in Johnson v. Collins Entertainment264 the Fourth Circuit on rehearing took the classic Burford route finding abstention appropriate and dismissing a case where there were unsettled questions of state law concerning payout limits on video poker gaming machines.
In the circuit cases where Burford abstention was found not to be appropriate the reasons for such decision are clear. In Gross265 only money damages were at issue and the case could not be dismissed because of Quakenbush. Moreover, the court found that one of the defendant’s claims was subject to exclusive federal jurisdiction mandated by the Securities and Exchange Act of 1934. In Johnson v. Rodrigues266 the court found that the father’s constitutional question did not present a difficult question of state law but instead was one well within the province of a federal court to answer. That court also found that their was no difficult question bearing on a policy problem that was of substantial public import. Thus, no need for Burford. Finally, in Seigel,267 the election case, the court found abstention inappropriate the federal suit did not threaten to undermine all or part of Florida’s process of conducting elections and resolving election disputes. There was no need for Burford because the federal case was not one in which federal influence would harm a complex state administrative process.
D. COLORADO RIVER ABSTENTION IN
THE TWENTY FIRST CENTURY
The Colorado River abstention doctrine is based on principles of federalism, comity, and conservation of judicial resources.268 It represents an “extraordinary and narrow exception” to the virtually unflagging obligation of the federal courts to exercise jurisdiction given them”269 Colorado River abstention may be appropriate in situations involving the contemporaneous exercise of concurrent jurisdiction by state and federal courts. However, the Supreme Court warns that “the circumstances permitting dismissal of a federal suit due to the presence of a concurrent state proceedings for reasons of wise Judicial administration are considerably more limited than circumstances appropriate for abstention and should be ‘exceptional’ to justify deferral to the state court.”270
As a result of the “exceptional circumstances” required for Colorado River abstention, one might suppose that there may have been very little such use of the doctrine in the early part of the twentieth century.
The cases prove this supposition correct. There have been a total of sixteen cases reported in the circuits wherein Colorado River abstention was considered or discussed. Only in two of those cases did the circuit courts find the exceptional circumstances warranting Colorado River abstention. However, these exceptional circumstances do not quite fit with the
classic case of Colorado River, nevertheless the circuit courts reasoned it was best to abstain. Let us look a those two cases and contrast them with a few of the cases wherein Colorado River abstention was found to be inappropriate.
The First Circuit Court of Appeals found that Colorado River abstention was appropriate in Currie v. Group Insurance Commission,271 a case decided April 1, 2002. In that case Currie, a Massachusetts state employee with schizophrenia, sued, in federal district court, the Group Insurance Commission which provided long-term disability benefits to state employees.272 The suit alleged that the one year limitation on benefits for noninstitutionalized individuals with mental disabilities violated the Equal Protection Clause, Due Process Clause, and the Americans with Disabilities Act (ADA).273 The employee also initiated a similar suit in the state courts of Massachusetts several months later. Both the federal court and the state court granted summary judgment to the insurance company.274 Currie appealed both the federal action and the state action.275
The First Circuit ultimately decided to invoke abstention pursuant to Colorado River but not for the exceptional circumstances factors the Supreme Court outlined in Colorado River and its subsequent decision in Moses H. Cone Memorial Hospital v. Mercury Construction Corp.276 The court analyzed the facts of Currie’s case against the factors set out for Colorado River abstention and did not find that the case absolutely mandated abstention.277 What the court did find, however, was a federal statutory question intertwined with a complex issue of state law pending in Currie’s state law case.278 The court found the situation more like a Pullman abstention matter where a federal court is faced with the prospect of being required to resolve complicated state law problems.279 Significant to the court’s decision to grant abstention was the fact that Currie herself who had originally filed in federal court had asked the First Circuit to abstain in favor of the state court.280 The court reasoned “because the plaintiff is the same in both this case and the parallel state case, there is no danger that the plaintiff will be prejudiced by ineffective prosecution…nor would the defendant be prejudiced by our staying the action: whatever uncertainty exists as to outcome…also exists as to the state court litigation.”281 Not exactly the Colorado River reasoning one might expect but probably the right decision in light of comity.
In Missouri v. Prudential Health Care Plan, Inc.,282 the Eighth Circuit Court of Appeals,
also, found that Colorado River abstention was appropriate. The case involved two federal suits by the State of Missouri alleging the same violation against the same insurer. That is, the state filed two actions against Prudential pertaining to a single contract dispute.283 The federal district court dismissed the first suit because of a defective complaint, pursuant to Fed,. R. Civ. P. 12(b)(6).284 The action brought against Prudential alleged that Prudential had failed to comply with a federal requirement that children receiving medical services be tested for lead poisoning.285 Missouri appealed the dismissal of the first suit.286 The circuit court, pursuant to Colorado River, found the appealed case duplicative of the second case and dismissed it.287
In arriving at its decision to abstain the court noted that Colorado River abstention applied to concurrent state- federal proceedings.288 The court noted further, however, that the Supreme Court opinion in Colorado River had discussed concurrent federal litigation as well.289 And that the Supreme Court had identified a general policy that duplicative litigation in federal courts should be avoided.290 In dismissing the case on abstention grounds the court also noted that both economic and jurisprudential grounds guided their decision in upholding the principle that a plaintiff may not litigate two federal actions against the same defendant involving the same controversy.291 Again, this was not classic Colorado River reasoning.
As one might expect, in many cases where Colorado River abstention was argued, the federal courts found no “exceptional circumstances” warranting the federal court to abstain because of parallel proceedings in a state or other federal suit. A total of fourteen such cases have been reported since the year 2000, and included cases in the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth circuit courts of appeals.292
Representative of such cases was Bass v. Butler293 wherein the Third Circuit found the abstention question moot. Dianne Bass who had been denied Worker’s Compensation benefits in the state of Pennsylvania brought a § 1983 action in federal district court against the state and state officials wherein she alleged that denial of her claim was unconstitutional.294 The district court without analysis dismissed her case reasoning that under Colorado River it should abstain because Bass had not exhausted her remedies in the state court .295 On appeal to the Third Circuit that court opined that the lower court had not done sufficient analysis to determine whether abstention had actually been warranted.296 Nonetheless, the Third Circuit found that abstention of jurisdiction was no longer applicable and that Bass’ appeal was moot because by the time of the appeal all of the state court proceedings had been completed.297 There were no longer parallel proceedings.
The Fifth Circuit Court of Appeals reversed a district court grant of abstention in Black Sea Investment, Ltd. V. United Heritage Corporation.298 Black Sea had bought shares of stock from United Heritage. Black Sea then brought suit against United heritage seeking injunctive and declaratory relief with respect to a contract dispute over the ability of Black Sea to sell the stock within a certain time period. United Heritage filed suit in Texas state court.299 Black Sea then filed a diversity action in federal district court.300 The district court abstained under the Colorado River doctrine. The Fifth Circuit found the district court should not have granted abstention because all of the exceptional circumstance factors301 of Colorado River were either neutral or counseled against abstentions.302 Among the factors the court enumerated were 1) that the case did not involve any res or property over which either the state or federal court had control; 2) there was no inconvenience of forums – both the state court and the federal court were in the same part of the state; 3) there was no federal law at issue in the case; and 4) there was no indication that Black Sea’s interests would not be adequately protected in the state court.303
Similarly, the Third Circuit, in PaineWebber, Inc v. Cohen,304 undertook an analysis of the factors and found that an investment firm’s action to compel arbitration following a state court fraud action against the firm’s manager did not warrant Colorado River abstention.305 Among the factors the court pointed out were 1) the state court did not assume Jurisdiction over any res or property (where no property is at issue it supports federal court jurisdiction); 2) there was no convenient forum argument because the state and federal court houses in this case were in the same city; 3) the law at issue was federal law – interpretation of the Federal Arbitration Act; and finally 4) the state court action had not progressed very far, even though the state action had been filed two days before the federal action.306
In AAR International, Inc. v. Nimelias Enterprises S.A.307 the Seventh Circuit reversed a
district court grant of abstention under Colorado River. In the case AAR, a lessor of an airplane
sued lessees and sublessees for breach of the lease.308 Nimelias sought abstention on grounds that there were pending related actions on the lease in question in the courts of the country of Greece.309 The circuit court, after a thorough analysis of the Greek cases and the lease, found that the Greek cases were not a parallel suit for purposes of Colorado River because on the “facts presented it did not appear substantially likely that the Greek actions would dispose of all the claims presented in the federal suit.”310 There were no actual parallel proceedings – thus, there was no need for Colorado River abstention.
Neither of the two cases wherein Colorado River abstention was found appropriate quite fit the classic factors and analysis of the seminal case of Colorado River Water Conservation District v. United States.311 In Currie312 there were parallel proceedings in state and federal suits involving duplicative litigation. This seems classic. Yet, the First circuit, after their analysis, did not believe that the case absolutely mandated abstention. Although Currie herself had asked for abstention based on the Colorado River doctrine, the court viewed the case more of a Pullman situation because there were complicated state law problems at issue. As a result of the parallel proceedings the court did abstain, pursuant to Colorado River. The court noted that Currie herself had asked for such abstention and the court believed there would be no prejudice to her. This was not classic Colorado River analysis, but probably the best result in light of the notion of comity with respect to parallel suits in state and federal court.
Missouri v. Prudential313 differs from the classic Colorado River case in that it involved two federal suits on the same claim. Instead of traditional Colorado River doctrine analysis the Eighth Circuit relied on dicta from Colorado River Water Conservation District v United States314 to decide that on both economic and jurisprudential grounds that such duplicative cases should not proceed and one should be dismissed. Since this matter does not involve comity between the state and federal system should we really call it a Colorado River abstention case. The answer is yes. Though not a classic Colorado River doctrine decision it is apparent the Supreme Court believed that there should not be parallel federal suits on the same claim. The Eighth Circuit rightly followed the Supreme Court’s thinking on the matter.
In the cases discussed which found Colorado River not appropriate one could argue that they fit the classic pattern of inappropriateness. In Bass v. Butler315 there could be no issue of abstention because at the time of the federal suit all state court proceedings had been completed. In Black Sea316 all of the exceptional circumstances were either neutral or counseled against abstention. Also, there was no federal law at issue in the case. In PaineWebber317 there was no need for abstention because the law at issue was all federal – interpretation of the Federal Arbitration Act. And, finally, we saw the correct decision in AAR International318 wherein the court found that there existed no true parallel proceedings with respect to the actions in the Greek courts. Thus no need for Colorado River abstention.
E. YOUNGER IN THE TWENTY FIRST CENTURY
The Younger abstention doctrine teaches that federal courts must refrain from hearing
constitutional challenges to state action under certain circumstances in which federal action is
regarded as an improper intrusion on the right of a state to enforce its laws in its own courts.319
As explained earlier Younger abstention has been expanded by the Supreme Court to apply to more than state criminal proceedings.320 In 1975 The Supreme Court expanded Younger to encompass quasi-criminal cases with their decision in Huffinan v. Pursue, Ltd.321 In the 1980’s Younger abstention was extended to quasi-judicial proceedings.322 In 1987, the Supreme Court extended the Younger abstention to civil proceedings.323
The classic situation for Younger abstention requires that a federal court refrain from hearing an action over which it has jurisdiction “when the federal proceedings would 1) interfere with an ongoing state judicial proceeding 2) that implicates important state interests, and 3) affords an adequate opportunity to raise federal claims.”324
In this section we will explore a number of the Younger abstention cases decided in the twenty first century to determine how they compare to the classic case of Younger v. Harris and its progeny. Since the turn of the new century the circuit court of appeals have visited Younger abstention in twenty nine cases. The circuit courts have upheld the Younger abstention doctrine in thirteen cases. Interestingly, in an almost equal number of cases, sixteen such cases, the circuit courts found that Younger abstention was not appropriate. A brief review of the cases in which all three of the classic factors of Younger abstention obtained exhibit a wide variety of situations. There are no real surprises with these cases. They all fit the classic Younger pattern.
The First Circuit Court of Appeals in In re Justices of the Superior Court Department of the Massachusetts Trial Court325 invoked Younger when defendants filed a pretrial federal habeas corpus petition in federal court.326 The defendants had already been charged in Massachusetts state court with insurance fraud and were set to go to trial. The court held that “with notable exceptions of cases involving double jeopardy and certain speedy trial claims, federal habeas relief, as a general rule, is not available to defendants seeking pretrial review of constitutional challenges to state criminal proceedings, and this case does not present the kind of ‘special circumstances’ which might require a different result.”327 The court found that their constitutional claims could be adequately adjudicated in the state case.
Kirschner v. Klemons328 was a Second Circuit decision upholding Younger abstention. Kirschner was a dentist upon whom state disciplinary sanctions had been imposed.329 He sought declaratory relief and money damages against members of the state sanctioning board.330 The court found that the state agency hearing the disciplinary charges involve[d] important state interests and that there were no special circumstances or bias that would prevent the federal case being dismissed pursuant to Younger.331 The important state issue, of course, was the obligation of a state to license, regulate, and discipline, when necessary, dentists or other health care professionals. The Second Circuit also upheld the use of Younger abstention in Grieve v. Tamerin.332 In that case a father, Grieve, had brought action against his former wife, Tamerin, who had filed for custody of their child in New York state court.333 The couple had once been permanent residents of Israel.334 The father brought his action against the mother under the Hague Convention on civil Aspects of International Child Abduction relating to then pending state custody proceedings.335 The court upheld abstention under Younger in this case on the grounds “that abstention was proper because of New York State’s strong interest in domestic matters generally and child custody questions in particular…. and because Grieve would have a full and fair opportunity to litigate his federal claims under the Hague convention.”336
More recently the Second Circuit reversed a district court’s finding that there existed
circumstances sufficient to trigger exception to the Younger doctrine. In Diamond D Construction Corp. v. McGowan,337 a road construction contractor had brought a § 1983 action against the New York state Department of Labor (DOL) alleging Due Process violations in connection with an investigation into contractors compliance with prevailing wage law.338 Although the federal district granted Diamond D the requested injunction, the DOL appealed.339 The circuit court reversed because they found no bad faith on the part of the DOL. The court held “to invoke this exception, the federal plaintiff must show that the state proceeding was initiated with and is animated by a retaliatory, harassing, or other illegitimate motive”340 The court found no such motive in the case, instead, it found “a prosecution motivated principally by a ‘straight forward application of the laws of New York’.”341
In Zahl v. Harper,342 a medical doctor sought a federal injunction when the New Jersey State Board of Medical Examiners instituted disciplinary proceedings against him for Medicare fraud.343 The federal district court abstained under Younger and dismissed his case. The Third
Circuit affirmed the district court’s grant of abstention. On appeal the doctor, Zahl, argued that the New Jersey administrative action for Medicare fraud allegations was preempted by federal law and that he had a constitutional challenge which the federal court should address.344 The circuit court found an ongoing state proceeding, found that the state had a compelling interest to over see the discipline of medical doctors, and agreed that Zahl’s claim raised a constitutional question.345 Yet such claim could not defeat the need for abstention. The court reasoned that Zahl could readily “assert his preemption claim in the administrative proceeding itself, and if necessary he could have that decision reviewed by the New Jersey Appellate Court.”346 This satisfied the third prong of the classic Younger test.
In Cooper v. Parrish,347 the Sixth Circuit reviewed a case brought by owners and employees of nightclubs offering nude dancing in Memphis Tennessee.348 The clubs had been seized and temporarily closed pursuant to a state nuisance statute. The owners and operators sued the state court judge and state prosecutors in federal court asserting § 1983 and state claims.349 The district court dismissed the action pursuant to Younger abstention.350 The circuit court believed that there were important state issues in the case concerning exposing and prohibiting promotions of prostitution and illegal obscene live performances which would warrant the upholding of Younger.351 Yet, the court remanded the case to the district court to determine whether there was actually a state court proceeding pending when Cooper filed his federal complaint. Cooper argued that no such proceedings had been pending. The district attorney argued that state proceedings involving obscenity and prostitution charges were still pending when Cooper filed his federal complaint.352 The court reasoned that if no such charges were pending the first element of Younger would not be satisfied and abstention would not be warranted.353
The Seventh Circuit Court of Appeals held that the federal district court should have
abstained pursuant to Younger in the case of Green v. Benden.354 Green was an African American psychologist in Chicago whose license was suspended by the Illinois Department of Professional Regulation (DPR) for practicing clinical psychology without a license.355 Green filed federal suit under § 1983 seeking declaratory judgment and damages for the violation of his civil rights. The district court dismissed several of his claims and granted summary judgment to the DPR.356 On appeal the circuit court ruled that the district court should have abstained.357 The court found that the state court administrative review action was judicial in nature and still pending when he filed in federal court.358 The court further held that the state action implicated important state interests in regulating and licensing of health care professionals.359 The court held further that the state court administrative review of the DPR proceedings allowed Green adequate opportunity to raise his review constitutional claims.360
The Eighth Circuit found that abstention was warranted in the case of Cedar Rapids Cellular Telephone, L.P. v. Miller.361 In this case various cellular telephone providers brought a federal action against the State of Iowa relating to notice from Iowa’s Attorney General that charging liquidated damages on canceled term service agreements of customers was violative of Iowa consumer law.362 On the same day the cellular company filed its federal suit seeking a declaratory judgment the Iowa Attorney General filed a civil enforcement action against the company in state court. The federal district court dismissed the case on several abstention theory
grounds.363 The circuit court upheld the dismissal and ruled that Younger abstention required
dismissal of the case on grounds of comity.364 The court reasoned, among other factors, that the
State of Iowa had an important state interest in enforcing its consumer protection statues in an
effort to protect the public against deceptive business practices.365
The Ninth Circuit Court of Appeals in Green v. City of Tucson366 also upheld a federal district court’s grant of abstention under the Younger doctrine. In 1961, the Arizona legislature had enacted a statute which provided that a territory within six miles of an incorporated city or town having a population of five thousand or more could not be incorporated without the consent of that city or town.367 In 1997 the state legislature passed a two year suspension of the statute in Pima County, Arizona.368 The City of Tucson which was in Pima County filed an action in state court alleging that the suspension of the statute was unconstitutional. The state appeals court declared that the statute was unconstitutional.369 The case was remanded to the trial court for further proceedings.370 While the case was still pending on remand Green and other plaintiffs filed a § 1983 action in federal district court alleging that the suspension statute unconstitutionally infringed upon their rights under the Fourteenth Amendment.371 The district court dismissed the case on abstention grounds.372 The circuit court ruled that abstention was warranted under Younger v. Harris.373 The court reasoned that there was an ongoing state action that implicated an important state interest – municipal interests in land use regulation.374 The court also held that the state proceedings allowed the plaintiffs adequate opportunity to intervene and raise their federal claims. 375 In two other cases the Ninth Circuit Court of Appeals, also, found that Younger abstention was warranted.376
The Tenth Circuit also found abstention was warranted in the case of Joseph A. v. Ingram.377 The court, in a rehearing of the case, reasoned that Younger abstention was warranted in a class action suit in which minor wards of the State of New Mexico alleged that they were denied meaningful access to adoption services.378 The court found that there were ongoing state court proceedings in the New Mexico courts that implicated an important state interest. In this case, the important state interest was the welfare of abused and neglected wards of the state.379
As indicated there have been no surprises with respect to situations in which the circuit courts found Younger abstention appropriate. They all fit the classic Younger formula. The first circuit found no special circumstance warranting upholding a federal habeas corpus action to
company and ordered abstention of the federal claim for injunctive relief. The Younger factor of important state interest” was well spelled out in the cases of Kirschner,382 Zahl,383 Cooper,384 Green v. Benden,385 Cedar Rapids Cellular,386 and Green v. Tucson.387 In Grieve v. Tamerin388 the court found that the father would have a full and fair opportunity to litigate his federal claims in state court under the dictates of the Hague Convention.
In an effort to determine what factor or factors make Younger inappropriate we will briefly compare a few of the cases wherein the circuit courts found Younger abstention inappropriate.389 The answer is fairly simple in most cases.
The Second Circuit Court of Appeals in Rivers v. McLeod390 found that Younger abstention was inappropriate therein because the litigant sought money damages for an alleged
violation of § 1983. The court reiterated the rule that Younger abstention is appropriate for injunctive and declaratory relief but not money damages.391 In Rivers a grandfather brought the §1983 action against a state judge and a social services organization providing foster boarding care for his grandson. In his federal suit he alleged that the organization failed to provide the grandson adequate medical care in violation of the Fourteenth Amendment.392 In this case the circuit reversed the Younger abstention dismissal by the lower district court.
In Midwestern Gas Transmission v. McCarty,393 the Second Circuit determined that there was no reason to abstain where there was dual federal state jurisdiction over an activity. The activity at issue in Midwestern Gas was the sale and distribution of natural gas. The court found that when the federal proceeding before the Federal Energy Commission which overlapped the state proceeding reached completion while the state proceeding was still pending there was no need to abstain. The court held that “principles of comity and federalism do not require that a federal court abandon Jurisdiction it has properly acquired simply because a similar suit is later filed in a state court.”394
The Tenth Circuit found Younger abstention was not appropriate in Southwest Air Ambulance v. City of Las Cruces395 because the municipal court stayed its criminal proceedings in deference to the federal suit that was subsequently filed. In this case an air ambulance service had brought a federal suit challenging the legality and enforcement of a municipal ordinance setting fees at the Las Cruces Airport in New Mexico.396 Thus, the court reasoned that there was no need for Younger abstention when there was no interference with an ongoing state judicial proceeding. Especially when the state court had deferred to the federal court
Finally, there is the case of For Your Eyes Alone Inc. v. City of Columbus Georgia.397 Therein the Eleventh Circuit found that Younger abstention was not required because the federal district court held a full evidentiary hearing on a TRO on May 4, 1998. Yet the litigant, in this case, Pennza, was not arrested on criminal charges until May 5, 1998.398 The case involved a constitutional challenge by a manager of a lingerie modeling studio of the constitutionality of a city ordinance prohibiting private modeling sessions at adult entertainment clubs.399 In this case there had been no ongoing criminal prosecution until after the federal district court had moved quite far into its case. The circuit court ruled that the federal suit had progressed beyond a point at which Younger could be invoked.400
Again, no surprises with respect to the representative cases discussed here where Younger abstention was found to be inappropriate. In Rivers401 the grandfather had sought only money damages, thus no abstention. In Midwestern Gas402 there was dual federal and state jurisdiction. No problems with respect to comity there. The court reasoned in Southwest Air Ambulance there was no reason to abstain when the state court defers in favor of the federal action. And, Finally, in For Your Eyes the federal case had proceeded too far to invoke Younger.
V. THE TALLY ON ABSTENTION IN THE TWENTY FIRST CENTURY
Having now completed review of the abstention doctrine cases decided in the twenty first century what is the tally? The raw numbers show abstention mentioned or considered in 163 federal appellate cases. Ninety three of the cases involved abstention as a major issue in the case. Approximately seventy five403 of these cases were reported decisions. This article only discussed or cited those cases that are reported in the West Reporter system. With respect to Pullman abstention there were a total of twelve cases. Pullman abstention was found appropriate in only four of those cases. Burford abstention was, also, an issue in twelve cases. Burford abstention was found appropriate in only three such cases. The issue of Colorado River abstention arose in sixteen cases, and, as might be expected, such abstention was found appropriate in a small number cases. Colorado River abstention was found appropriate in only two such cases. Younger abstention was at issue in 29 cases. There was an almost even split in these cases. Younger was found to be appropriate in thirteen such cases and inappropriate in sixteen of the cases.
The raw numbers reveal that there were far fewer situations in the twenty first century where abstention was found to be appropriate than the situations where abstention was not appropriate. Out of seventy one cases discussed or cited in this article abstention was granted in only twenty two cases – approximately one third of the cases reported. In light of the hundreds of federal cases reported since the beginning of the twenty first century abstention has been found appropriate in a minuscule number. One wonders whether the critics of abstention might be mollified when they learn the small number of times abstention may really be necessary. That is, where there is a genuine tension between the federal and state court systems and the federal system must for reasons of comity abstain.
Yet, the raw numbers in themselves mean nothing. The question to be addressed to the critics of abstention is whether the rationale for comity and “Our Federalism” found in the classic abstention doctrines cases have been followed rigorously and analytically by the circuit courts. The answer? Of course it has, as have the analyses of the cases reviewed herein reveal.
Still critics may argue the raw numbers do not reveal the delay and costs that litigants may suffer when their federal case is stayed or dismissed because of abstention. All litigation is costly and expensive. Learning the costs of litigating the cases reviewed herein are far beyond the kin of this author. However, we might look at the issue of delay in two of the cases. A strong criticism of Pullman abstention is that it causes delay to the litigants. Is the delay inordinate? Federal court dockets are always full and few obtain their day in court as soon as they might wish.
Let us, again examine two of the twenty first century Pullman decisions to determine the time the cases consumed. In Ford Motor Company v. Meridth, Inc,404 we find Meridth filed its protest with the New Hampshire Motor vehicle Industry board sometime after January 15, 1998. Ford filed its federal action seeking declaratory relief on September 28, 1999.405 On August 16, 2000, the New Hampshire court reached its decision. Eight days later the federal court entered judgment for Meridth.406 Ford appealed shortly thereafter. The First Circuit heard oral argument on May 9, 2001,407 and rendered its sua sponte decision invoking Pullman abstention on August 6, 2001.408 The matter was resolved in just under three years of litigation. For Ford the federal portion of the matter lasted two years. Was there delay for Ford? Yes, but it does not appear inordinate given today’s federal court dockets.
In Cruz v. Melecio409 the timing was as follows: The “Party” filed its state suit seeking to register their party for the November 2000 election on October 16, 1998. Summary judgment was granted for defendants on January 21, 1999.410 The Party appealed the state court dismissal and the appeals court upheld the dismissal on March 25, 1999.411 The state case was pending before the Puerto Rico Supreme Court at the time of the federal appeal. The Party had filed their federal complaint on March 23, 1999. The federal suit was dismissed July 7, 1999.412 The Party appealed shortly thereafter. The First Circuit heard argument on the case on December 6, 1999. On February l7, 2000,413 the court sua sponte ruled that it must abstain in light of the pending state action. This case appears to have flown through the system very speedily, but after all it was a voter registration matter with a well defined deadline that had to be met. There appears to be little delay in this Pullman abstention case. At least not with respect to the federal action. We can make no determination whether there may have been inordinate delay in the other two cases upholding Pullman because the written decisions do not provide enough specificity with respect to procedural dates. Yet, the point is made. The critics may decry the delay and cost of Pullman abstention but given federal court dockets the delay does not appear to be inordinate. This author’s personal experience with cases in federal court indicate that even the most routine federal court case, even without abstention, will have a pendency of at least eighteen months or better, if not dismissed earlier on summary judgment grounds.
As noted earlier, Charles Wright has criticized abstention and particularly, Pullman abstention on grounds of delay, and also on grounds that it denies litigants a hearing in federal court on claims based on federal law. This author finds such criticism unpersuasive. Wright’s argument, in full, on this point provides:
That with Pullman-type abstention many federal litigants would not get their day in court. In Pullman the Supreme Court ordered the trial court to retain jurisdiction of the case while parties sought a state ruling on the state issues. The Court held that the federal constitutional objections must be presented to the state court, so that it may consider state law in the light of the constitutional claims. However, with such procedure if the state court should decide the federal issue, on ordinary principles of res judicata this would be a binding determination, subject to review only in the Supreme Court, and there would be nothing left for the federal court to decide in the exercise of jurisdiction it had retained. Since the Supreme Court cannot hear every case tendered to it, this would mean that many litigants never would have a hearing in a federal court even though they were asserting claims based on federal law.414
This author finds such argument unconvincing in light of experience and in light of the raw numbers of appeals filed to the Supreme Court. It is almost axiomatic that whether in a Pullman case or any other type of federal litigation one’s chance of getting to the Supreme is remote. The numbers alone show that in 2001 – 2002, the U.S. Supreme Court received 9,176 appeals. Only eighty eight of these cases were argued and disposed of by the Court.415 Most were not even accepted for review. Very few cases will be heard by the Supreme Court. This does not mean that a litigant will be denied rights by not having his federal claims heard by a federal court. This author decries the notion that a state court, faced with a federal claim, can not properly apply federal law. As every student and teacher of Federal Jurisdiction understands federal law is enforceable in state court. There may then be an appeal from the state trial court to the state supreme court which is also Constitutionally bound to enforce federal law. An appeal from the state supreme court to the U.S. Supreme Court is also possible, even though the numbers of cases accepted are small.
The larger point here from this author’s point of view as a former federal court practitioner and one who teaches Federal Jurisdiction is that a litigant can well have his federal claims fairly adjudicated in a state court. In my class on Federal Jurisdiction I am fond of reminding my students of the Supreme Court’s axioms on this point:
Federal law is enforceable in state courts not because Congress has determined that federal courts would otherwise be burdened or that state courts might provide a more convenient forum — although both might well be true – but because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature. The Supremacy Clause makes those laws “the supreme law of the Land,” and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure. The laws of the United states are laws in the several states and just as much binding on the citizen and courts thereof as the State laws are… The two together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent.416
Again, and for the reasons outlined above, Wright’s notion that a litigant may not get his federal claims heard before a federal court because of Pullman abstention is unpersuasive in light of the operation of our dual court system of jurisprudence. Such litigant can get his federal claims heard before a court, even a state court that can decide federal claims. Justice can be so served.
As stated earlier in this article, the scholars Lee and Wilkins argue that the abstention doctrines permit federal courts to decline the exercise of congressionally conferred jurisdiction417 and they question whether the judiciary has the authority to ignore the dictates of valid jurisdictional statutes.418 They believe that abstention doctrines could be characterized as judicial usurpation of legislative authority in violation of the principle of separation of powers.419 They propose federal legislation that would direct when abstention could properly be invoked.420 As this author points out Congress has proposed no legislation, and probably, never will propose legislation to codify the use of the abstention doctrines. Congress is too busy wrestling with issues concerning homeland security, prescription medicine payments for seniors, a possible war with Iraq, and its next biennial election to consider codifying the abstention doctrines. One can argue after this review that there are far too few cases each year invoking abstention for Congress to make this a major legislative initiative.
Moreover, Congress could probably not be convinced to pass a federal abstention doctrine law which would authorize federal courts to certify state law questions to the appropriate state court since the concept of certification has been a creature of state law. There would be no need for Congress to preempt this area of state law. Forty four out of fifty states already have such certification statutes. This fact taken together with the relatively modest number of abstention cases decided each year militates against such legislation. At present under the Uniform Certification of Questions of Law Act, passed in 1967 and amended in 1996, the highest court of a state may answer questions of law certified to it by various federal courts, including a U.S. District Court, Court of Appeals, and the U.S. Supreme Court.421
If Congress would examine the abstention doctrine cases considered and decided in the twenty first century and reviewed in this article they would come to the conclusion that federal circuit courts are doing a wonderful job to balance the need for comity within our dual system of courts. There has been no abuse and the courts have been thoroughgoing in their analyses. The system with respect to abstention ain’t broke – there is no need for legislation to fix it.
The overall paucity of abstention cases in the twenty first century in regard to the total number of federal cases decided in the same time frame should also convince the critics that there is little likelihood that Congress is ever going to take up legislation, beyond the Anti-Injunction statute, to codify rules concerning abstention. As the twenty first century progresses we may witness a refining of the certification statutes and the adoption of such statutes in all of the fifty states. Yet, it must be remembered that certification is not abstention. A federal court may not properly ask a state court if it would care to rewrite a statute. It would also be inappropriate for a federal court to certify an entire constitutional challenge to the state court, for certified questions should be confined to uncertain questions of state law.422
This review of the abstention doctrine cases decided in the twenty first century and their comparison with the classic abstention doctrine cases should show the critics that abstention is not something to be reviled or legislated out of existence. There will be times that though a federal court might have jurisdiction, such federal court may be wise to stay its hand on grounds of comity. In only one third of the overall cases where abstention was an issue did the circuit courts find abstention appropriate. Such small numbers reveal the prudence and wisdom of the federal circuit courts with respect to abstention. Because the United States has two parallel systems of courts, state and federal, there will sometimes be tensions. As a result, the need for notions of comity and “Our Federalism” are still with us in the twenty first century. It is likely that abstention will always be with us – the critics should get over it.
This Birdsong Article was originally published in the Creighton Law Review, Volume 36, No. 3 (2003).
*Leonard Birdsong is an Associate Professor of law at Barry University School of Law, Orlando, Florida. He received his B.A. (Cum Laude) at Howard University and his J.D. from Harvard Law School. He served as an Assistant U.S. Attorney for the District of Columbia, and later as a Special Assistant U.S. Attorney for the U.S. virgin Islands. He teaches Federal Jurisdiction, Criminal law, White Collar Crime and Evidence. He has also appeared as a legal analyst and commentator for Fox News, Court TV, and MSNBC. Professor Birdsong wishes to thank reference librarians Warren McEwen and Alan Diefenbach, of the Barry Law School Library fro their research assistance in preparation of this article. Also, special thanks to Professor Stephen Leacock of Barry Law School, a colleague and mentor who read the draft of this article and provided insightful and helpful editorial comments.
1Charles Alan Wright et al, Law of Federal Courts § 52, at 325 (6th ed 2002).
3James C. Rehnquist, Taking Comity Seriously: How To Neutralize The Abstention Doctrine, 46 Stan. L. Rev 1049, 1049 (1994).
4Mathew D. Staver, The Abstention Doctrine; Balancing Comity With Federal Court Intervention, 28 Seton Hall L. Rev. 1102, 1102 (1998).
6Wright, supra note 1.
7Wright supra at note 1 cautions: The Supreme court, the lower courts, and the commentators differ on how many abstention doctrines there are. Respectable support can be found for classifying the cases into two, three, four, or five categories. The number is of little significance, since the division is a mere organizational convenience. See, § 52, p 325 note 3.
8See, Wright supra.
10See, Wright supra at § 52A at 341-342.
12312 U.S. 496 (1941).
13Pullman, 312 U.S. at 497-98.
22Id. at 499
26Id. At 501-02.
27Id. At 501.
30See, Wright, supra at p 325.
31319 U.S. 315 (1943)
32Id. at 316
34Id. at 334.
35Id. at 332
36Id. at 333-34.
37Id. at 334.
38424 U.S. 800 (1976)
39Id. at 805-806.
40Id. at 806.
44Id. at 817.
45Id at 813-817.
46Id. at 818.
47Id. at 820.
48Wright supra at 339.
49401 U.S. 37 (1971)
50Wright supra at 341-342.
51401 U.S. 37 at 38.
52Id at 39.
54Id at 40.
55Id. at 55.
56Id. at 46.
57Id. at 54.
58See Wright supra at p 345 quoting Samuels v. Mackell, 401 U.S. 66 at 76 (1971), decided the same day as Younger v. Harris, supra.
59Younger, supra 401 U.S. at 46.
60 Younger, supra 401 U.S. at 49.
61Id. at 44.
62 Supra at note 58.
63See, Staver, The Abstention Doctrines, supra note 4 at p 1121.
65420 U.S. 592 (1975)
66See, e.g. Middlesex County Ethics Commission v. Garden State Bar association 457 U.S. 423 (1982); Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).
67 See, e.g. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987)
68See, Joseph A. V. Ingram, 275 F.3d 1253, 1267 (19th cir. 2002), citing J.B. v. Valdez, 186 F.3d 1291.
69See, Wright supra at 327
70Id, citing Spector Motor Service v. O’Connor, 340 U.S. (1951) (seven years); England v. Louisiana State Bd. Of Medical Examiners, 384 U.S. 885 (1966) (nine years); U.S. V. Leiter Minerals, Inc. 381 U.S. 413 (1965) (dismisses as moot eight years after abstention ordered)
71Id. at 328.
74Id. at 329.
75See, Rex E. Lee and Richard G. Wilkins, An Analysis of Supplemental Jurisdiction and Abstention With Recommendation for Legislative Action, 1990 B.Y.U.L. Rev 321 (1990) at 336.
79Id. at 337
80Id at 362-63.
81See, Id. at364, 366, 368 and 372 for the various legislative proposals.
82Wright supra at § 47 p 299.
83§ 2283 Provides: A court of the United States may not grant an injunction to stay proceedings in a state court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.
84Wright supra at p 299.
Staver, The Abstention Doctrine, supra at note 4 at p 1103.
86See, James C. Rehnquist, Taking Comity Seriously: How To Neutralize The Abstention Doctrine, 46 Stan. L. Rev. 1049.
87Id at 1049.
88Rehnquist, supra at note 86 p 1069.
89Id. at 10687.
90See, Id at footnote 109.
91See, Theodore B. Eichelberger, Certification Statutes: Engineering A Solution To Pullman Abstention Delay, 59 Notre Dame L. Rev. 1339 (1984) at 1349.
96See, Westlaw ULA database, Uniform Certification of Questions of Law (ACT) (RULE) (1995) 1995 ACT, General Notes at p.4
97Eichelberger, Certification supra note 91at p 349
99An online search of such cases was initiated by Reference Librarian Warren McEwen of the Barry University School of Law during April of 2002.
100530 U.S. 914 (2000)
101Id at 937-38.
102Id. at 945.
103Wright, supra at note 10 citing § 52A at 341-342.
104See, Nationwide Mutual Insurance v. Unauthorized Practice of Law Committee, 283 F.3d 650 (5th Cir. 2002)
105257 F.3d 67 (1st Cir. 2001).
106The relevant portions of the Franchise Act for purposes of this case provides:
I. All written or oral agreements of any type between a manufacturer, or distributor or motor vehicle dealer shall be subject to the provisions of this chapter, and provisions of such agreements which are inconsistent with this chapter shall be void as against public policy and unenforceable in the courts of this state.
II. Before any new selling agreement or amendment thereto involving a motor vehicle dealer and such party become effective, the manufacture, distributor, distributor branch or division, factory branch or division, or agent thereof shall 90 days prior to the effective date thereof, forward a copy of such agreement or amendment to the attorney general and to the dealer.
III. Every new selling agreement or amendment made to such agreement between a motor vehicle dealer and a manufacture or distributor shall include; and if omitted, shall be presumed to include the following language: “If any provision herein contravenes the valid laws or regulations of the state of New Hampshire, such provision shall be deemed to be modified to conform to such laws or regulations; or if any provision herein, including arbitration provisions, denied or purports to deny access to the procedures, forums, or remedies provided for by such laws or regulations, such provisions shall be void and unenforceable; and all other terms and provisions of this agreement shall remain in full force and effect. Id at 69
107Id. at 68
112See, id. At 71 footnote 3 citing as authority Pustell v. Lynn Pub. Schs, 18 F.3d 50 at 51 n.1 (citing Bellotti v Baird 428 U.S. 132, 143 n.10 (1976).
113Id. at 71.
115Id. at 72.
116Id. at 73.
119204 F.3d 14 (1st Cir. 2000)
120See, id. at 22, footnote 7.
121Id. at 17.
126Id. at 18.
132Id. at 22.
136Id. at 23.
138Id. at 24
140Id. On this point the court said “From the standpoint of federalism and comity, there is something particularly offensive about hijacking a case that is pending on the docket of a state’s highest tribunal.
141Id. at 25.
142See, Nationwide supra at note 104.
143See, Nationwide supra at note 104, 283 F. 3d at 651.
151Id. at 653.
152Id. at 654.
153Id.a t 655.
156276 F.3d 1244 (11th Cir. 2001).
157Id. at 1246. This local legislation was legislation that applied to a specific city, county, or special district, and comprised a large part of the bills introduced and enacted by the General Assembly each year.
161Id. at 1247.
162Id. at 1247. The court noted at n. 9 “Voters’ argument is based on the undisputed population data for Georgia’s 159 counties broken down according to the House and Senate Districts located in those counties. Voters allege that a House or Senate member with constituents in the county has one vote on local legislation while another House or Senate member with fewer constituents in the county also has one vote on local legislation affecting the county.”
164Id. at 1248.
165Id. at 1248, n. 10 The court stated “We are raising abstention sua sponte, Bellotti v. Baird (citation omitted) and have determined de novo the propriety of abstention in this case. We join other circuits in this approach. (Citations omitted).”
166Id. at 1249.
170Id. at 1250.
171See, supra at note 105.
172See, supra at note 119.
173See supra at note 104 .
174See, supra at note 156.
175265 F.3d 69 (1st Cir. 2001).
176Id. at 71.
180Id. at 75.
181Id. at 75, see esp. n. 5.
182221F.3d 376 (2d Cir. 200).
184Id. at 385.
185See, id. Citing Bad Frog Brewery, Inc. V. New York State Liquor Auth., 134 F.3d 87, 93-94 (2d Cir. 1998) and City of Houston, Texas v. Hill, 482 U.S. 451, 467 (1987).
186202 F.3d 127 (3d Cir. 2000).
187See and cf., Stenberg v. Carhart, 530 U.S. 914 (2000) supra at n. 100.
188 Planned parenthood, supra. at 131.
190Id. at 148.
191Id. at 149. Cf. Steinberg v. Carhart, supra.
192214 F. 3d 730 (6th Cir. 2000).
195Id. at 737.
196Id. at 740.
197271 F.3d 911 (9th Cir. 2002)
198Id. at 921-22.
199Id. at 918-20.
200Id. at 928.
201Id. at 953.
202Id. at 928.
203Id. at 928-31.
204See, Wright, supra at p 325.
205319 U.S. 315 (1943)
206Id. at 316
208Id. at 332
209Id. at 334.
210See, 517 U.S. 706 (1996)
211238 F.3d 38 (1st Cir. 2001).
212Id. at 39.
213Id. at 40.
214Id. at 40-41.
215Id. at 42, citing Colorado River Water Conservation District United States, 424 U.S. 810, 814 (1976).
216Id. at 43.
219Supra at note 210, 517 U.S. 706.
222218 F.3d 152 (2d Cir. 2000).
223Id. at 155.
225See, id at 160 discussion of the government’s amicus brief wherein it was argued that the executive branch of the government had made an initial policy determination that resolution of issues such as debt allocation among successor to the SFRY must be resolved in an international forum.
227Id at 163.
228 The court indicates that the State Department would be the proper entity of the Executive Branch to oversee the matter.
229 218 F.3d, supra at 163.
232204 F. 3d 573 (4th Cir. 2000).
233Id. at. 574-75
234Id. at 577
235Id. at 575
236Id. at 577
239Id. at 577.
240The author declines to discuss but acknowledges that the following cases, also, found Burford abstention to be inappropriate: Fisher v. King, 232 F. 3d 391 (4th Cir. 2000); United States v. Kentucky, 252 F.3d 816 (6th Cir. 2001); GTE v. Strand, 209 F.3d 909 (6th Cir. 2002); United States v. Moros, 268 F.3d 695 (9th Cir. 2001); City of Tucson v. U.S. West, 2002 WL 543226 (9th Cir. 2002); Boyes v. Shell Oil, 199 F.3d 1260 (11th Cir. 2000)
241217 F.3d 208 (4th Cir. 2000).
242Id. at 211.
243Id. at 223.
245Id. at 223-24.
246226 F.3d 1103 (10th Cir. 2000).
247Id. at 1105.
248Id. at 1112.
251234 F. 3d 1163 (11th Cir. 2000).
252Id. at 1168.
254Id. at 1173.
258Id. at 1179.
259Supra at note 31.
260See, supra at note 211.
261Supra at note 214.
262Supra at note 219.
263See, supra at note 222 .
264See, supra at note 230 .
265See, supra at note 241.
266See, supra at note 246.
267See, supra at note 251.
268Black Sea Investment, Ltd. V. United Heritage Corp., 204 F 3d 647, 650 (5th Cir. 2000).
269Id. at 650 citing Colorado River, 424 U.S. at 813, 817.
270Currie v. Group Insurance Commission, WL 463663, (April 1, 2002) at P 18
271See, Currie, supra. At note 270.
272Id. at p.14.
275Id. at 15.
276See, 460 U.S. 1 (1983). The six factors the Supreme Court set out to be analyzed in Moses Cone included: 1) whether either party has assumed jurisdiction over the res; 2) the inconvenience of the federal forum; 3) the desirability of avoiding piecemeal litigation; 4) the order in which forums obtained jurisdiction; 5) whether federal law or state law controls; and 6) whether the state forum will adequately protect the interests of the parties.
277Currie v. Group Insurance Commission, supra. at pp 18-19
278Id. at 19.
280Id. at 20.
282259 F.3d 949 (8th Cir. 2001)
283Id. at 950.
287Id. at 956.
288Id. at 952.
289Id. citing Colorado River, 424 U.S. at 817.
291Id. at 956.
292The author chooses to discuss in this article only four of the cases in which Colorado River abstention was found inappropriate since the beginning of the twenty first century as representative of the types of cases in which there were no special circumstances warranting application of Colorado River abstention. The author acknowledges that the remaining such cases are: Woodford v. Community Action, 239 F.3d 517 (2d Cir. 2001); Garcia v. Akwesasne, 268 F.3d 76 (2d Cir. 2001); Al-Abood v. El-Shamari, 217 F.3d 225 (4th Cir. 2000); Bank One v. Shumake, 281 F.3d 507 (5th cir. 2002); Bank One v. Boyd, 2002 WL 518633 (5th Cir. April 15, 2002); Safety National v. Bristol Myers, 214 F.3d 562 (5th Cir. 2000); United States v. Kentucky, 252 F.3d 816 (6th Cir. 2001); Dominium v. Emerson, 248 F.3d 720 (8th Cir. 2001); and United States v. Moros, 268 F.3d 695 (9th Cir. 2001).
293258 F. 3d 176 (3d Cir. 2001)
294Id. at 177.
295Id. at 178.
296Id. at 179.
298See, 204 F.3d 647, supra at note 268.
299Id. at 649.
301Those six factors are set out, supra in note 276.
302Black Sea, supra 204 F.3d at 650.
303Id. at 651.
304276 F.3d 197 (6th Cir. 2001).
305Id. at 199 and 209.
306See, id 207-209.
307250 F.3d 510 (7th Cir. 2001).
308Id. at 513.
309Id. at 517.
310Id. at 519.
311See, supra 424 U.S., 800 at note 38.
312See, supra at note 270.
313Supra at note 282.
314Supra at note 290.
315See, supra at note 293.
316 See, supra at note 268.
317See, supra at note 304.
318See, supra at note 307.
319Wright supra at 341-342.
320See, infra this article at p 11-13.
321420 U.S. 592 (1975), supra
322See, e.g., Middlesex County Ethics Commission v. Garden State Bar Association 457 U.S. 423 (1982); Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).
323See, e.g. Pennzoil Co. V. Texaco, Inc., 481 U. S. 1 (1987), supra.
324See, Joseph A. v. Ingram, supra at note 68 at p 1267, citing J.B. v. Valdez, 186 F.3d at 1291.
325218 F.3d 11 (1st Cir. 2000).
326Id. at 14.
327Id. at 18.
328225 F. 3d 227 (2d Cir. 2000).
329Id. at 231.
330Id. at 233.
331Id. at 234.
332269 F.3d 149 (2d Cir. 2001)
333Id. at 151.
336Id. at 154.
337282 F. 3d 191 (2d Cir 2002)
338Id. at 193.
339Id. at 194.
340Id. at 199.
342282 F.3d 204 (3d Cir. 2002)
343Id. at 206.
344Id. at 210.
347203 F.3d 937 (6th Cir. 2000).
348Id. at 942.
350Id. at 944, 954.
351Id. at. 954.
353The Sixth Circuit case of Armco, Inc. v. United Steelworkers of America 280 F.3d 669 (6th cir. 2002), which I have chosen not to discuss, also upheld the use of Younger abstention.
354281 F3d 661 (7th Cir. 2002).
355Id. at 663.
356Id. at 664.
357Id. at 667.
358Id. at 666.
361280 F3d 874 (8th Cir. 2002)
362Id. at 876
363Id. at 877.
364Id. at 879.
365Id. at 879-80
366217 F. 3d 1081 (9th Cir, 2000).
367Id. at 1082-83.
368Id. at 1083.
373Id. at 1083.
376See, Columbia Basin Apartment Assn. v. City of Pasco, 268 F3d 791 (9th Cir. 2001) and H.C., a minor v. Koppel, 203 F.3d 610 (9th Cir. 2000).
377See, 275 F.3d 1253 supra at note 68.
378Id. at 1257-1259
379Id. at 1268.
380See, supra at note 325.
381 See, supra at note 337.
382See, supra at note 328.
383See, supra at note 342.
384See, supra at note 347.
385See, supra at note 354.
386See, supra at note 361.
387See, supra at note 366.
388See, supra at note 332.
389This article will not discuss all sixteen cases decided since the year 2000, wherein Younger abstention was found inappropriate because such review would be overly repetitive. However, a listing of those cases are as follows: United States v. Charles, 213 F.3d 10 (1st Cir. 2000) National Pharmacies v. Feliciano, 221 F.3d 235 (1st Cir. 2000); Stewart v. Abraham, 275 F.3d 220 (3d Cir. 2001); Bass v. Butler, 258 F.3d 176 (3d Cir. 2001): Tindall v. Wayne County, 269 F.3d 533 (6th Cir. 2001); Midwestern Gas v. McCarthy, 270 F.3d 536 (7th Cir. 2001); GTE v. Strand, 209 F.3d 909 (6th Cir. 2002); Montclair Park Owners v. City of Montclair, 264 F.3d 829 (9th Cir 2001); United States v. Moros, 268 F.3d 695 (9th Cir. 2001); Weitzel v. Utah, 240 F.3d 871 (10th Cir 2001); John Roe #2 v. Ogden, 253 F.3d 1225 (10th Cir. 2001); Potawatomi v. Pierce, 253 F.3d 1234 (10th Cir. 2001); Southwest Air Ambulance v. Las Cruces, 268 F.3d 1162 (10th Cir. 2001); For Your Eyes v. Columbus Georgia, 281 F.3d 1209 (11th Cir. 2002)
390252 F.3d 99 (2d Cir. 2001).
391See Kirschner v. Klemons supra at note 328
392 Rivers v. McLeod, supra. at 101.
393 270 F. 3d 536 (7th Cir. 2001) .
394Id. at 537.
395268 F.3d 1162 (2001)
396Id. at 1164.
397281 F.3d 1209 (11th Cir. 2002).
398Id. at 1213.
399Id. at 1210-11.
400Id.a t 1217.
401 See, supra at note 390.
402 See, supra at note 393.
403This article discusses or cites seventy one abstention cases. Four other cases which mentioned abstention were also found. However, the main issue in those cases was the concept of forum nonconvens. The author chose not to discuss those cases.
404See, Ford Motor, 257 F.3d 67, supra at note 105.
405 Id at 69.
408 Id at 70
409See, 204 F.3d 14 supra at note 119.
410 Id. at 17-18
414Id. at page 14.
415 See, 2001 Year-End Report On the Federal Judiciary ,www.supremecourtus.gov/publicinfor/year-end/2001 year-endreport.html.
416 Howlett by Howlett v. Rose, 496 U.S. 356, 367 (1990).
417See, Rex E. Lee and Richard G. Wilkins, An Analysis, supra at pp14-16.
419Id. at 337
420 An example of their statute for Pullman abstention would provide:
(1) A federal district court may, in its discretion abstain from deciding a federal constitutional issue if
(a) Decision of the federal constitutional issue depends upon the construction of state law; and
(b) There is substantial uncertainty regarding the meaning or interpretation of the state law; and
(c) An erroneous interpretation of the state law would disrupt important state policies; and
(d) The state law is fairly subject to an Interpretation that will render unnecessary a ruling on the federal constitutional issue.
(2) In exercising its discretion under subsection (1),the district court must consider
(a) The importance of the constitutional issue
(b) Whether a decision to abstain will effectively preclude a litigant’s access to a federal forum,
(3) If the district court exercises its discretion to abstain under subsection (1), it shall certify the question of state law upon which abstention is order to an appropriate state court for prompt resolution. See, Lee & Wilkins, An Analysis, supra at pp.364-65
421 This may be done when requested by the certifying court if there are involved in any proceeding before the federal court questions of law of the state which (1)may be determinative of the cause then pending in the federal court, and (2) as to which it appears to the certifying court there is no controlling precedent in the decisions of the state highest court or intermediate courts. See, 1 Fed Proc, L Ed § 1:690, Lawyers Cooperative Publishing (1995), citing Uniform Certification of Question of Law Act § 1.
See. 1 Fed Proc. L Ed § 1:685.