Sorting out federal and state judicial roles in state institutional reform: abstention's potential role.

• Author: Wise, Charles R.

INTRODUCTION

The Kansas City School District will move vigorously to raise achievement levels of its students after a federal judge dismissed what had become one of the costliest desegregation cases ever, Superintendent Benjamin Demps has vowed. Demps hailed the decision Wednesday by U.S. District Judge Dean Whipple to free the district from federal court supervision in a case that had dragged on 22 years and cost the state $2 billion. In dismissing the case, Whipple said further court involvement would only get in the way of the district's efforts to improve student achievement. He said court involvement over the years had probably contributed to turmoil in the district--citing infighting on the school board and the revolving door that led to 18 superintendents in 30 years. Whipple praised the district for its attempts to meet federal court orders since a lawsuit was filed in 1977 seeking to desegregate the district through an exchange of students on both sides of the state line. Despite those positive steps, Whipple refused to overturn the state Board of Education's decision Oct. 21 to strip the district of accreditation beginning in May. The board found that the district failed to meet 11 performance standards used by the state to measure student achievement. Whipple said the district's appeal of that decision was the latest example of how the district had used the court to shield itself from accountability for the continued performance of its students. (1) If a plaintiff sues a state or local institution for violating constitutional or federal statutory rights, when should federal courts intervene, and when should they defer to state courts? Federal courts must consider many factors when framing a remedy designed to reform a state or local institution. The consistent application of these factors has proven particularly troublesome for federal courts in situations where institutional reform is sought.

Institutional reform remedies involve not only social, economic, and political factors, but also complex organization and management issues intertwined with considerations of policy and science-issues federal courts often have little familiarity with. Courts have, for example, been attempting to sort out the findings of social studies and discern their meaning for remedial policies in desegregation cases. (2) Judicial decrees that involve budget allocations and taxations have forced courts to repeatedly revisit their decisions in the face of changing economic, macro-budgetary, and cost conditions. Remedial options are further complicated by the existence of state common law and statutes already governing state or local institutions. Superimposed on these complexities are the actions of state officials and state courts, who may already be addressing the very problems the plaintiff has brought to federal court. The result is a vexing dichotomy of competing imperatives. On one hand, state courts are responsible for overseeing state and local agencies and applying federal and state laws to their operations. On the other hand, federal courts are fundamentally responsible for ensuring the vindication of federal rights.

The U.S. Supreme Court has attempted to sort out these competing imperatives by according federal courts the authority to abstain from hearing certain cases. This doctrine has never been fully articulated and, as a result, has led to confusion among federal courts. Further, state courts and institutions lack sufficient clarity to foresee when, and under what conditions, a federal court will defer to their judgment.

The ambiguity surrounding the abstention doctrine in institutional reform cases hinders the effective reform of state and local institutions. (3) Such ambiguity also threatens the legitimacy and effectiveness of federal courts and their role in safeguarding individual rights. (4) Abstention has the potential to play an increasingly useful function in sorting out the roles of state and federal courts in institutional reform litigation. That potential will only be realized, however, if the requirements for abstention are better articulated and if a clear rationale, grounded in sound law and administration, is supplied. This piece attempts to do exactly that: to clarify the abstention requirements and provide a clear rationale for the doctrine.

Part I of this piece discusses the origin and development of the abstention doctrine, focusing specifically on Burford abstention, a kind of abstention particularly salient to institutional reform cases. Part I also illustrates the inconsistencies inherent in the application of the abstention doctrine in its current form. Parts II and III propose that federal courts, in considering whether to grant Burford abstention, should analyze three requirements: judicial capacity, federalism, and administrative responsibility. This piece concludes that all three requirements play a significant role in achieving a reasonable division of labor between federal and state courts and can assist policymakers in initiating institutional reforms in agencies implicated in rights violations.

1. ABSTENTION

   1. Roots of Abstention

      The abstention doctrine permits federal judges, at their discretion, to decline to decide cases otherwise properly before the federal courts. (5) Abstention is grounded in principles of comity and federalism. (6) It is based on the notion that federal courts should not intrude in sensitive state political and judicial controversies unless absolutely necessary. (7) Proponents of abstention feel such controversies should instead be settled by state courts. (8)

      The debate surrounding the abstention doctrine, in existence for seventy years, is by no means settled. Some would greatly limit abstention's potency by emphasizing the word "virtually" in the Supreme Court's depiction of a "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." (9) Abstention's supporters emphasize Justice Frankfurter's statement of federalism in Railroad Commission of Texas v. Pullman Co. that "[f]ew public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies." (10)

      Abstention, as a doctrine, owes its heritage to the seminal cases Railroad Commission of Texas v. Pullman Co. (11) and Burford v. Sun Oil Co. (12)

   2. Pullman

      On March 3, 1941, the Supreme Court gave its first articulation of the abstention doctrine: Pullman abstention. (13)

      The plaintiffs in Pullman, the Pullman Railroad Company and its porters, attacked a Texas Railroad Commission order forbidding sleeping cars from being operated on Texas railroads unless controlled by Pullman conductors (not porters). (14) The Pullman Company argued the order violated Texas law and the U.S. Constitution's Equal Protection, Due Process and Commerce Clauses. (15) The Company's protest centered on the fact that, in many cases, a train would carry only one Pullman passenger car. (16) The Company felt, in such cases, a Pullman porter was sufficient to attend the car. (17) The Pullman porters, who were black, echoed the Company's objections but mainly objected to the order as racially discriminatory under the Fourteenth Amendment. (18)

      Although the Supreme Court recognized the presence of significant constitutional questions, (19) the Court abstained from judgment for several reasons. The Pullman Court's decision was couched in terms of a duty of judicial economy. (20) The Court noted the tradition of federal courts avoiding constitutional adjudication if the controversy could be resolved by ruling on a state issue. (21) The Court also rationalized its decision to abstain out of a respect for the independence of state governments. (22) Pullman abstention, then, allows federal courts to abstain so that state courts can settle an underlying issue of state law and, in so doing, avert the need for a federal court to solve the federal constitutional question.

   3. Burford v. Sun Oil Co.

      Burford abstention arose in the Supreme Court in 1943, approximately two years after Pullman. Burford involved the validity of the Texas Railroad Commission order granting the defendant Burford a permit to drill four wells in an East Texas oil field. (23) Federal jurisdiction was sought on the basis of the diversity of citizenship, and because of Sun Oil's contention that the Commission's order granting Burford the drilling permit denied Sun Oil its right to due process concerning its interest in the oil. (24) Pertinent to Burford's background is that Texas,

      [w]ith full knowledge of the importance of the decisions of the Railroad Commission both to the State and to the oil operators ... ha[d] established a system of thorough judicial review by its own state courts. The Commission orders may be appealed to a state district court in Travis County, and are reviewed by a branch of the Court of Civil Appeals and by the State Supreme Court. (25) Despite having proper federal jurisdiction, the Burford Court abstained from decision. Unlike Pullman, where the federal district court was given jurisdiction while the issue of state law was being decided by a state court, the Burford Court entirely dismissed the case. (26) The reason for dismissal defines the core of Burford abstention:

      [Q]uestions of regulation of the industry by the state administrative agency ... so clearly involves [sic] basic problems of Texas policy that equitable discretion should be exercised to give the Texas courts the first opportunity to consider them. `Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies....' (27) In essence, the Burford Court abstained to prevent federal judges from interfering with complicated state administrative schemes. (28)

   4. Ensuing Abstention Doctrines

      In the years following Pullman and Burford, additional decisions added texture to general...