Comity and Our Federalism in the Twenty-first Century: the Abstention Doctrines Will Always Be With Us - Get Over It!!

Publication year2001


Creighton Law Review

Vol. 36



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."(fn1) "The cases in which this has been recognized are usually referred to as the 'abstention doctrine.'"(fn2) "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."(fn3) The purpose of such doctrine is to "preserve the balance between state and federal sovereignty."(fn4) "This constitutional balance is 'often' referred to as federalism or comity."(fn5) 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 doctrines cases reflect complex considerations designed to avoid friction between federal and state courts.(fn6)

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 United States Courts of Appeals 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.


Scholars and courts often refer to at least four distinguishable lines of abstention doctrines cases.(fn7) 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."(fn8) For the purpose of this article we will examine cases involving four different types of abstention doctrines that have appeared most often in recent cases. These four are the Pullman-type abstention; the Burford-type abstention; abstention to avoid duplicative litigation, frequently referred to as Colorado River-type abstention,(fn9) and finally, Younger 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."(fn10) 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.


With Pullman abstention, federal courts avoid decisions of federal constitutional questions when the case may be disposed of on questions of state law.(fn11) The doctrine grows out of Railroad Commission

v. Pullman Co.,(fn12) the now famous 1941 Supreme Court case. 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.(fn13) This new order had strong racial overtones. The Court found that 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.(fn14) In 1941, all the Pullman conductors were white and all Pullman porters were black.(fn15) Upon learning of the new Texas order, the Pullman Company brought an action "in federal district court to enjoin the Railroad Commission's order."(fn16) The Pullman company "assailed the order as unauthorized by Texas law, as well as violative of the Equal Protection, the Due Process [Clause], and the Commerce Clause[s] of the Constitution."(fn17) 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 United States Constitution.(fn18)

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.(fn19) 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 is open."(fn20) The Court held that constitutional adjudication could "be avoided if a definitive ruling on the state issue would terminate the controversy."(fn21) The Court then turned to a consideration of questions under Texas state law. Pursuant to Texas law, the Court found a statute that maintained, in relevant part, "[i]t 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."(fn22) 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.(fn23) 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."(fn24) 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."(fn25)

The Supreme Court remanded the case to the district court with directions to retain the case pending a determination of the state proceedings.(fn26) The Court there reasoned that if there was "no warrant in state law for the Commission's assumption of authority there [was] an end to the litigation [and] the constitutional issue [did] not arise."(fn27) 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."(fn28) 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."(fn29) The classic Pullman abstention case dictates that the federal court stay but not dismiss the action while the state court resolves the issue of state law.


Burford abstention is also recognized by the federal courts. The doctrine is utilized "to avoid needless conflict with the administration by a state of its own affairs."(fn30) The doctrine grew out of the case of Burford v. Sun Oil Co.,(fn31) which, 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.(fn32) The proceeding, brought in federal district court, was based on diversity of citizenship of the parties because of Sun Oil's "contention that the order denied them due process of law."(fn33) 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.(fn34)

The Supreme Court, in an opinion delivered by Justice Black, reasoned that abstention would be appropriate in this type of case. The Court held "that the questions of regulation of the industry by the State...

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