Greenspan v. Klein

¶1(concurring).

¶2I am in complete agreement with the per curiam opinion and I write only on the issue of abstention reached by Judge Fisher. I cannot see why we should consider staying our hands in this matter and defer to some state tribunal before which nothing now pends.

¶3The plaintiff has been suspended, and the fact that he “could have immediately tested the constitutionality of the statutes and regulations here under attack by taking advantage of a variety of state procedures” is for me beside the point. Of course, the plaintiff could have sued in the state court, but he chose not to. If the mere existence of a state forum in which a private individual may sue the state were to preclude the individual from suing in federal court, no one could ever sue a state in federal court. The doctrine of Younger v. Harris was not designed to force plaintiffs to elect state rather than federal forums; it was designed to protect the jurisdiction of state courts where a plaintiff seeks to litigate identical issues in federal courts.

¶4Furthermore, the interest with which the State of New Jersey views the outcome of the pending lawsuit hardly seems a reason for requiring the plaintiff to choose a state rather than a federal judge to decide the issues when nothing is pending before the courts of either jurisdiction. I do not know how to measure the state’s interest in all of the varied litigations in which it appears in state and federal courts, but even if such a measure could be devised, I fail to see how the degree of state interest in the outcome has any relevance to the forum which is to render the decision.

¶5*865Extension of the Younger doctrine to the situation here would turn comity on its head. By enactment of the Judiciary Act of 1875, 18 Stat. 470, Congress conferred federal question jurisdiction on the lower federal courts. Those courts “ ‘ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States.’ F. Frankfurter & J. Landis, the Business of the Supreme Court 65 (1928).” Steffel v. Thompson, 415 U.S. 452, 464 [94 S.Ct. 1209, 1218, 39 L.Ed.2d 505] (1974).

¶6Nothing in Juidice v. Vail or Trainor v. Hernandez compels abstention. In both of these cases, the federal plaintiff was already embroiled in a state court action prior to instituting federal suit. In sum, I stand by my dissenting opinion in Rite Aid Gorp. v. Bd. of Pharmacy of the State of N. J., 421 F.Supp. 1161, 1180-1181 (D.N.J.1976).

Once it is ascertained that no state proceeding is pending, no doctrine of law or consideration of comity requires plaintiffs to choose a state court rather than a federal court in which to enforce federal rights. The majority reviews a growing body of law in the lower federal courts which suggests that the application of the Younger-Huffman rule rests on some “strong and peculiar relationship to, or interest in, the existing state proceedings” on the part of a state. Ante, at 1166. In finding this questionable addition to the Younger doctrine inapplicable to the facts of this case, though purporting to decline to decide whether the “strong state interest” approach is correct, the Court overlooks the fundamental fact which renders Younger-Huffman wholly inapplicable here: there is no pending state proceeding of any kind. Cf. In re Grand Jury Impaneled January 21, 1975, 541 F.2d 373 (3rd Cir. 1976). If we were to refuse to hear plaintiffs here, we would be sending them away to begin a new suit elsewhere.

In my view, the applicability of the equitable abstention doctrine does not depend upon such labels as civil, criminal, quasi-criminal or “in aid of and closely related to.” Nor do I believe that the Supreme Court would decide such an issue on the basis of some generalized analysis of the “strength” of a state’s interest in the particular statute under challenge. The majority’s own caveat, ante, at 1171, that though it does not “suggest or intimate that New Jersey is unconcerned with the proper regulation of the practice of pharmacy,” the state’s concern is somehow not “strong” enough to warrant our deference, makes clear the deficiency of such an approach. A state is obviously “strongly” concerned, whatever that term may mean, whenever it has enacted legislation. That a state is “concerned,” in this sense, with the outcome of the litigation to which it is a party does not give it the right to compel that litigation to proceed only within its own courts.

It is my view, rather, that the basis of the Younger doctrine lies in the conception of “Our Federalism” enunciated by Mr. Justice Black in that seminal case. 401 U.S. at 44-45, 91 S.Ct. 746. Younger and its progeny are an effort to reconcile the fundamental paradox of two parallel court systems exercising overlapping jurisdiction within the same time and space. The doctrine of equitable abstention is in reality a mere accommodation, designed to smooth the functioning of the judicial branches of both the national and state governments in a federal system. It demands that a federal court stay its hand only when a state court has already assumed jurisdiction over the controversy between the parties. I view the purpose of the doctrine to be the avoidance of needless embarrassment to the state courts from federal litigation which, by virtue of the Supremacy Clause, could cause federal courts effectively to divest state courts of jurisdiction over prior lawsuits.

In the absence of a pending lawsuit, however, I cannot see why a federal plaintiff should be denied a federal forum in which to contend that his federal rights have been violated by state action. Such a conclusion implies no criticism of *866the state courts. On the contrary, there is no question that the state judiciary is as fully capable as the federal to apply the federal constitution to enactments of the state legislature, see, e. g., Stone v. Powell, 465 U.S. 465, 493 n. 35, 96 S.Ct. 3037, 3051 n. 35, 49 L.Ed.2d 1067 (1976). That alone, however, is no reason for federal courts to decline to exercise jurisdiction over federal questions once a plaintiff has elected to seek his relief here. In the absence of a pending state proceeding raising the same claim between the same litigants, we ought not to send him to the state courts merely because the state has an “interest” in the outcome of the litigation. Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). Cf. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972); Cottrell v. Virginia Electric & Power Co., 363 F.Supp. 692, 696 (E.D.Va.1973). A state has an interest whenever its statutes are challenged as violative of federal law. That interest, no matter how strong, does not give the state the right to have the issue decided in the forum of its choice.1