AuthorBedell, James

"It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should.... With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution."

--Chief Justice John Marshall (1)

INTRODUCTION I. ABSTENTION IN FEDERAL COURTS A. Pullman Abstention for Unclear State Law B. Thibodaux Abstention for Unclear State Law with Diversity Jurisdiction C. Burford Abstention for Unclear State Law with Complex State Administrative Procedures D. Younger Abstention to Avoid Interference with Pending State Court Proceedings E. Colorado River Abstention to Avoid Duplicative Proceedings II. ABSTENTION FACILITATES INEFFICIENCY A. Abstention Places an Undue Burden on Litigants B. Abstention Can Have a Chilling Effect on Individual Rights C. Lower Courts Are Not Clear on When to Apply Abstention D. Current Mechanisms Are Inadequate III. SOLUTIONS AND CONSEQUENCES TO CHANGES IN ABSTENTION A. Expand the Use of Certified Questions B. Additional Requirements for Pullman and Burford Abstention C. Abolish Thibodaux and Younger Completely D. Expand Colorado River Abstention IV. PROPOSED ABSTENTION LAW CONCLUSION INTRODUCTION

On November 24, 2014, a state official allegedly lied to the public, and the law barred those with knowledge from revealing the truth. Within six weeks, a whistleblower filed a federal complaint to challenge the state statute that silenced her and to vindicate her First Amendment rights. She claimed that the November 24 statement of St. Louis County Prosecuting Attorney Robert P. McCulloch--describing a grand jury's purportedly "collective" decision, based on all possible evidence, not to indict Darren Wilson, the police officer who had shot and killed Michael Brown three months earlier in Ferguson, Missouri--was profoundly misleading and should be corrected with facts from the grand jurors themselves. (2) Under the name "Grand Juror Doe," she filed a complaint on January 5, 2015, in the United States District Court for the Eastern District of Missouri under 42 U.S.C. [section] 1983, alleging that Missouri's statute criminalizing a grand juror's disclosure of the evidence or proceedings violated the First Amendment. (3)

To this day, the merits of this challenge to Missouri law have not been addressed except by an elected state judge. The federal district court, on May 5, 2015, decided to abstain from hearing the case, citing the so-called Pullman (4) abstention doctrine as its justification. (5) Grand Juror Doe appealed the decision, and the United States Court of Appeals for the Eighth Circuit upheld the abstention on June 20, 2016. (6) Grand Juror Doe was forced to bring her action under the federal Constitution to Missouri state court, and the case was dismissed with prejudice on December 13, 2016. (7) Almost exactly one year later, on December 12, 2017, the Missouri Court of Appeals affirmed the trial court's dismissal. (8) As of this writing, her motion for a transfer to the Supreme Court of Missouri is pending. (9)

After exhausting her state-court appeals, pursuant to Pullman abstention and an England (10) reservation, Grand Juror Doe may ultimately return to the Eastern District of Missouri at the conclusion of all state court proceedings. This will occur no sooner than 2018, for a case that could have been decided three years prior. Potentially, Pullman abstention will have resulted in the chilling or silencing of constitutionally protected speech for an extended period of time while Grand Juror Doe bore the expense of years of litigation before her day in federal court to decide a federal question about the scope of the First Amendment.

Abstention is a collection of doctrines that largely create enormous waste and that overwhelm the perceived benefits of their implementation. Inefficiency in the judicial system leaves litigants with high transaction costs from added proceedings, extended delay in reaching a resolution, and a potentially elongated chilling effect on constitutional rights. Not only does abstention create unnecessary obstacles for litigants, but this Note also argues that abstention is needlessly complicated, leading to situations in which litigants are further burdened by judicial error. This Note proposes legislation to codify the entirety of abstention in federal courts so as to streamline judicial efficiency and promote clarity within the doctrines.

Part I of this Note will examine the various abstention doctrines used in the United States. Part II will address the issues that arise from the use of these abstention doctrines. Part III will introduce potential solutions to the problems created by abstention, along with the possible consequences from adopting the solutions. Part IV will focus on the proposed abstention legislation, and how it can improve the judicial system. (11)


    Abstention is not one specific doctrine, but a collection of common law doctrines addressing situations in which a federal court has jurisdiction over a case but decides not to exercise that jurisdiction. Courts generally apply abstention to facilitate a stable relationship between state courts and their federal counterparts. (12) This can sometimes take the form of an unclear issue of state law, a parallel proceeding in state court, or a complex state administrative structure, to name a few examples.

    Depending on which doctrine the court uses to justify its decision to abstain, the result is typically a stay of federal proceedings, although sometimes it can be outright dismissal. A stay is issued when there remains a federal interest aside from the state interest in the case, and the litigants are invited to continue in federal court at a later time if necessary.

    1. Pullman Abstention for Unclear State Law

      Pullman abstention was "[d]esigned to avoid federal-court error in deciding state-law questions antecedent to federal constitutional issues." (13) This particular doctrine, which was created in the case of Railroad Commission of Texas v. Pullman Company, (14) generally allows a federal court to decline to exercise jurisdiction because of an unclear issue of state law as to which a particular resolution could render the federal issue moot. (15)

      At the time of the case, the Pullman Company manufactured sleeper cars that could be coupled to trains for overnight travel. Railroad companies would operate and staff the train generally, while the Pullman Company staffed and operated the sleeper cars under the general control of the railroad companies where applicable. (16) Employee positions at the Pullman Company were divided by race. African Americans held the position of porter, while whites held the position of Pullman conductor. Some trains carried one sleeper car, while others carried two or more. (17) In situations where a train had only one sleeper car, no Pullman conductor was utilized, and the porter would operate the Pullman car under the control of the train's conductor. (18)

      The Texas Railroad Commission ruled that a Pullman conductor was necessary for the operation of a sleeper car, regardless of the number of sleeper cars on the train. (19) The Pullman Company sued the Railroad Commission in the U.S. District Court for the Western District of Texas, claiming the order violated both Texas law and the U.S. Constitution. The porters intervened in the suit, and challenged the commission's order as a violation of the Fourteenth Amendment. (20)

      The three-judge district court noted that the commission had the power to pass regulations that would correct abuses. (21) The district court then determined that the commission only had the power to correct an "abuse which has been defined by the law." (22) The court ruled in favor of the plaintiffs on the grounds that the commission lacked the authority for its order; the court did not address any other issues. (23)

      Citing a desire to avoid ruling on the sensitive constitutional issue of racial discrimination, the Supreme Court stated that the case must be viewed solely through the lens of Texas law. (24) Instead of actually grappling with state law, however, the Court announced that the Texas Supreme Court should hold the final word on the meaning of the Texas statute. (25) Although the Court noted the district court judges' experience with Texas law, it also characterized the Court as "outsiders without special competence in Texas law," and stated its lack of confidence in any decision it could render on the issue. (26)

      In carving out Pullman abstention, the Court stated:

      In this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication. The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court. The resources of equity are equal to an adjustment that will avoid the waste of a tentative decision as well as the friction of a premature constitutional adjudication.... [Prior Supreme Court decisions] reflect a doctrine of abstention appropriate to our federal system whereby the federal courts, "exercising a wise discretion," restrain their authority because of "scrupulous regard for the rightful independence of the state governments" and for the smooth working of the federal judiciary. This use of equitable powers is a contribution of the courts in furthering the harmonious relation between state and federal authority without the need of rigorous congressional restriction of those powers. (27) The Pullman doctrine was created as a response to a lack of guidance from the Texas Supreme Court in an effort to harmonize the state and federal court systems. (28) But...

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