The Duty to Decide vs. the Daedalian Doctrine of Abstention

• Publication year: 1977

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 1, No.1FALL 1977

The Duty To Decide Vs. The Daedalian Doctrine Of Abstention

Harlan S. Abrahams(fn*) and Brian E. Mattis(fn**)

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. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. 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. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do, is to exercise our best judgment, and conscientiously to perform our duty.

-Chief Justice John Marshall, in

Cohens v. Virginia, 19 U.S. (6

Wheat.) 264, 404 (1821).

I. Introduction

How unfortunate it is that Congress must enact legislation to impress upon the federal judiciary that it meant what it said over one hundred years ago when it passed the Civil Rights Act of 1871! And yet, in response to what Justice Brennan calls "a series of decisions [which] has shaped the doctrines of jurisdiction, justiciability, and remedy, so as increasingly to bar the federal courthouse door in the absence of showings probably impossible to make,"(fn1) Congress indeed is finding itself prompted to reassert its "belief . . . that the Federal Government-not the individual States-[is] the primary protector of our basic constitutional freedoms."(fn2)

On January 10, 1977, Senators Mathias and Brooke initiated their response to "such judicial doctrines as comity, standing, federalism, abstention, and the exhaustion of State judicial remedies, [by which] the Court has significantly curtailed the availability of the Federal courts as a forum,"(fn3) by introducing a bill entitled The Civil Rights Improvements Act of 1977.(fn4) Congressman Mitchell of Maryland introduced the same bill in the House on March 4, 1977.(fn5) Principal features of the Civil Rights Improvements Act would expand the definition of "person" under United States Code section 1983(fn6) to include states, municipalities, and all their political units and governmental agencies, would render inapplicable the doctrine of abstention in section 1983 actions, and would embody the circumstances within section 1983 when a federal court can interfere in a pending state criminal proceeding.(fn7)

Although the thrust of this article is not a detailed analysis of the particulars of this proposed legislation, the utility of a brief description of the bill, by way of prefacing this article's thesis, cannot be gainsaid, for the sentiments of the bill's sponsors coincide with the subject of this article: the closing of federal courthouse doors in the face of the federal judiciary's duty to decide those cases where Congress has created jurisdiction and provided a cause of action.

The degree to which the bill directly addresses certain recent pronouncements by the Supreme Court is extensive.(fn8) As explained by Senator Mathias's remarks upon the bill's introduction,(fn9) the Civil Rights Improvements Act would follow the Court's cue in Fitzpatrick v. Bitzerw (fn10) by exercising Congress's power to make the states amenable to civil rights suits. In Fitzpatrickthe Court paved the way for Congress to amend section 1983 to provide for suits against State and State officials. The Court held that the 11th amendment and the doctrine of State sovereignty were limited by the enforcement provision of section 5 of the 14th amendment, and thus justified congressional authorization of suits which would be constitutionally impermissible in other contexts.(fn11)

The bill, in section 2(e), also sweeps aside the judicial doctrine of abstention in section 1983 actions and replaces it with several legislative provisions which considerably restore the civil rights plaintiffs access to federal courts. With respect to pending state criminal proceedings, the bill's section 2(e)(3)(A) generally continues the prohibition on federal intervention in accord with Younger v. Harris,(fn12) but modifies the Younger rule in at least one crucial respect. Whereas Younger allowed only one narrow, restrictive exception to abstention upon a showing that the state criminal proceeding was accompanied with bad faith harassment, one of those "showings probably impossible to make,"(fn13) Congress is being asked to add a second exception to nonintervention where the civil rights plaintiff alleges, and the district court finds, that the criminal statute forming the basis of the state proceeding is unconstitutional on its face and is likely to deter the exercise of protected first amendment rights. In effect, this second exception would reinstate the holding of Dombrowski v. Pfister,(fn14) a holding discredited by the Court in Younger. And this important change in the abstention doctrine results from only the narrowest reading of section 2(e)(3)(A) of the bill. For the wording of that section actually allows federal intervention whenever the plaintiff alleges, and the district court finds, "that extraordinary circumstances exist justifying such intervention including"(fn15) the two exceptions just discussed. A broader, and more sound, reading of the bill thus would treat the two legislatively-mentioned exceptions as merely illustrative of "extraordinary circumstances . . . justifying . . . intervention"-not as limitations on what federal courts may deem to be "extraordinary circumstances." The two exceptions are simply included within the concept of "extraordinary circumstances"-they do not define the limits of that concept.

Moreover, the Civil Rights Improvements Act would reverse legislatively two unfortunate extensions of the Younger doctrine. With respect to state criminal proceedings, section 2 (e)(3)(C) would repudiate the Supreme Court's holding in Hicks v. Miranda(fn16) that Younger mandates abstention even if the state proceeding is initiated after the filing of the federal complaint, so long as no "proceedings of substance on the merits have taken place in federal court."(fn17) As Senator Mathias recognizes, echoing the dissent by Justice Stewart in Hicks,(fn18) "this is a particularly troublesome rule-one that invites State prosecutors to file a State suit to preclude Federal jurisdiction."(fn19) Accordingly, the troublesome rule is replaced in section 2(e)(3)(C) with one explicitly stating that the general nonintervention provision does not apply if the state criminal proceeding is commenced after the filing of the federal complaint.

The bill also "rejects the expansion of . . . Younger to civil proceedings first clearly enunciated in Huffman"(fn20) by explicitly stating in section 2(e)(3)(B) that the prohibition on intervention does "not apply where the pending proceeding is civil in nature, even if such proceeding is in aid of and closely related to the enforcement of a criminal statute."(fn21) The Court's further expansion of Younger and Huffman to the civil area in its March 22, 1977, decision in Juidice v. Vail(fn22) and its May 31, 1977, decision in Trainor v. Hernandez (fn23) makes this rejection even more essential.

Those, then, are some of the features of the proposed Civil Rights Improvements Act. Its proponents astutely observe that the bill addresses Supreme Court cases which, despite their frequent invocation of constitutional concepts such as federalism, more accurately are viewed as reflecting "the concerns of the Court's new majority-especially the growing problem of overburdened Federal courts."(fn24) And the bill's sponsors seek to issue a most appropriate response to those concerns: "Congress cannot fail to heed the concern expressed by the Supreme Court regarding the need to ease the growing burden on the Federal court system,"(fn25) but also when Congress creates jurisdiction and provides causes of action, the federal judiciary cannot fail to perform its assigned duties. Accordingly, the federal judiciary should perform its tasks by fulfilling its duty to decide cases, while Congress should perform its responsibilities by "provid[ing] legislation to help expedite justice in our Federal courts."(fn26) And even if such legislation is not as forthcoming as the courts would wish, then nevertheless by "reaffirm[ing] Congress's commitment to the vigorous enforcement of our civil rights laws,"(fn27) it is telling the judiciary to exercise its powers and duties while awaiting congressional solution to the problem of overburdened dockets.(fn28)

Only by adherence to such a response can both the courts and Congress legitimately maintain their respective entitlements to serve the sovereign People of the United States. For only by adherence to the Constitution which governs both branches can they acquire the legitimacy required of them in the performance of their duties as assigned to them by their ultimate masters, the People. And it cannot be forgotten that the Constitution, that governing document, warmly embraces the principle of fraction-alized, separated powers, and that a failure to perform the duties assigned via the separation of powers is as repugnant to the principle as the encroachment of one branch of...