Everything You Wanted To Know About the Abstention Doctrine

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^**

© 2002

 

 

                        I. INTRODUCTION…………………………………………………………………………………………………..1

 

                        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

                                        A. OVERVIEW………………………………………………………………………………………….21

                                        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

 

                        VI.. CONCLUSION…………………………………………………………………………………………………76

 

 

      I. INTRODUCTION 

            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

relief.⁶⁰

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,

Ltd.⁶⁵  In the 1980’s Younger abstention was extended to quasi-judicial proceedings.⁶⁶  In 1987, the Supreme Court extended the Younger abstention to civil proceedings.⁶⁷

            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. OVERVIEW

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

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^**

© 2002

 

 

                        I. INTRODUCTION…………………………………………………………………………………………………..1

 

                        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

                                        A. OVERVIEW………………………………………………………………………………………….21

                                        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

 

                        VI.. CONCLUSION…………………………………………………………………………………………………76

 

 

      I. INTRODUCTION

 

            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

relief.⁶⁰

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,

Ltd.⁶⁵  In the 1980’s Younger abstention was extended to quasi-judicial proceedings.⁶⁶  In 1987, the Supreme Court extended the Younger abstention to civil proceedings.⁶⁷

            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. OVERVIEW

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