(D.C. Civil Action No. 69-765). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
McLaughlin, Adams and Gibbons, Circuit Judges. Adams, Circuit Judge, concurring.
This is an appeal from an order of the district court dismissing a class action which challenged on due process and equal protection grounds the intake procedures of the Family Court Division of the Philadelphia Court of Common Pleas. The action has had an unfortunately complex procedural history, a recitation of which is necessary for an appreciation of the exact issues presented to this court for review.
The action was filed originally by the plaintiff Conover, on his own behalf and on behalf of all others similarly situated, on April 8, 1969. Conover, a juvenile, alleged that he had been arrested on three occasions and had on each occasion been subjected to an "intake interview" by probation officers employed by the Philadelphia Juvenile Court. These probation officers, he alleged, in an essentially standardless procedure, or at least a procedure employing standards in no way related to the purposes of the Pennsylvania Juvenile Court Law of 1933, decide whether to file a petition, pursuant to section 4 of that law, Pa. Stat. Ann. tit. 11, § 246(1965). That complaint referred to the provision of the juvenile court law prohibiting preliminary hearings in juvenile cases, Pa. Stat. Ann. tit. 11, § 246(3)(1965), and contrasted the treatment of adult offenders, who under Pennsylvania law have a right to a preliminary hearing and to indictment by a grand jury. Pa. Const. art. 1, § 10. Named as defendants were Honorable Frank J. Montemuro, Jr., Administrative Judge, Family Court Division, Philadelphia Court of Common Pleas, Arlen Specter, District Attorney of Philadelphia*fn1 and Leonard Rosengarten, Director, Juvenile Probation, Family Court Division, Philadelphia Court of Common Pleas. The complaint sought both injunctive and declaratory relief, but not money damages. It invoked jurisdiction under 28 U.S.C. §§ 1331 and 1343 and under 42 U.S.C. § 1983. It sought class action treatment pursuant to Fed. R. Civ. P. 23, requested the convening of a three-judge district court pursuant to 28 U.S.C. § 2281 et seq., and asked for the issuance of a temporary restraining order. The request for a temporary restraining order was brought on for hearing on April 9, 1969.
The district court, after a hearing, declined to issue a temporary restraining order. An appeal from that denial was taken to this court, but after oral argument that appeal was dismissed by stipulation.
The district court, pursuant to 28 U.S.C. § 2284, requested then Chief Judge Hastie to convene a three-judge court. Judge Hastie declined to do so on the ground that although the complaint nominally challenged the constitutionality of Pa. Stat. Ann. tit. 11, § 246 (1965), its substance was that the persons charged with the administration of the statute are exercising their power in an improper way, and not that the statute, properly construed, required the allegedly improper practices. The case thereafter proceeded before a single district court judge.
On April 18, 1969 Gerald Myers, another juvenile, filed a motion for leave to intervene on his own behalf and as a class representative, asserting a fear that settlement discussions between Conover, the original plaintiff, and the named defendants, might result in the withdrawal of prosecution in the juvenile court and an attempt by Conover to withdraw the action prior to an adjudication of the rights of the class of which Myers was a member. By an order dated May 2, 1969 Myers was permitted to intervene as plaintiff. At this time no class action determination had been made by the district court. See Fed. R. Civ. P. 23(c)(1).
Meanwhile, on April 26, 1969 the named defendants filed an answer and a motion to dismiss the complaint. Judge Montemuro and Mr. Rosengarten moved for a dismissal on the grounds (1) that the district court lacked jurisdiction, (2) that they were immune from suit, and (3) that the federal court should abstain. In a detailed opinion and order filed on September 24, 1969 Judge Fullam considered and rejected each of these contentions. Conover v. Montemuro, 304 F. Supp. 259 (E.D. Pa. 1969). He denied the defendants' motion to dismiss the declaratory judgment action on jurisdictional or immunity grounds, and reserved until trial their motion to dismiss the action for an injunction.
After this interlocutory opinion and order was filed the plaintiffs Conover and Myers made a motion for an order pursuant to Fed. R. Civ. P. 23(c)(1) that the action, brought as a class action, be so maintained. The district court gave the defendants an opportunity to file any objections to the confirming of the class action, and after a hearing, over such objections, on October 8, 1970 entered the following order:
"And Now, this 8th day of October, 1970, it appearing that the class plaintiff has described in his complaint falls within the requirements of Fed. R. Civ. P. 23(b)(2), it is ORDERED that this action may be maintained as a class action on behalf of all juveniles in Philadelphia, Pennsylvania, who have been or will be affected by action of the defendants alleged in the complaint."
No other findings were made with respect to the class action determination. See Interpace Corporation v. City of Philadelphia, 438 F.2d 401 (3d Cir. 1971).
After extensive discovery the case proceeded to final hearing on April 13, 1971. In that hearing the plaintiff class representatives attempted to establish:
a. that juvenile defendants were denied equal protection on the ground that Pennsylvania law provides for discharge of adults at a preliminary hearing against whom a prima facie case is not established, but does not provide for the discharge of juveniles at the intake interview against whom a prima facie case of delinquency is not established.
b. that juvenile defendants were denied due process because of the overbroad discretion allowed to the intake interviewer and the vagueness of the standards for his decision whether to file a delinquency petition.
c. that juvenile defendants were denied due process by the arbitrary and irrational choice of cases in which to file delinquency petitions.
d. that juvenile defendants were denied due process because the intake standards were not reasonably related either to probable cause or to the purposes of the Juvenile Court Law.
Plaintiffs' principal legal arguments were based on In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967) and In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). At the completion of the hearing, in which the testimony of eight witnesses was taken and twenty exhibits received in evidence, the defendants renewed their motion to dismiss on the ground that the federal court should abstain. The renewed motion was prompted by the Supreme Court's decisions, on February 23, 1971, long after the district court's denial of the original motion, of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971); Samuels v. Mackell, 401 U.S. 66, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971); Boyle v. Landry, 401 U.S. 77, 27 L. Ed. 2d 696, 91 S. Ct. 758 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971); Dyson v. Stein, 401 U.S. 200, 27 L. Ed. 2d 781, 91 S. Ct. 769 (1971), and Byrne v. Karalexis, 401 U.S. 216, 27 L. Ed. 2d 792, 91 S. Ct. 777 (1971). The district court asked the parties to brief the issues raised by these cases prior to the submission of proposed findings of fact. On July 21, 1971 it filed an opinion and order, 328 F. Supp. 994, dismissing the action without prejudice to the right of the plaintiffs to raise the same issues in an appropriate case on the authority of the Younger v. Harris group of cases. That is the order appealed from.
The July 21, 1971 order was entered prior to and without the benefit of Judge Van Dusen's exegesis for this court of Younger v. Harris and its companion cases in Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971), and without the Supreme Court's refinement of the issues of jurisdiction and federalism in Mitchum v. Foster, 407 U.S. 225, 32 L. Ed. 2d 705, 92 S. Ct. 2151 (1972). Since the district court did not reach the merits it had no occasion to consider whether McKeiver v. Pennsylvania, 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct. 1976 (1971), which deals with another aspect of Pennsylvania Juvenile Court procedures casts any greater light upon the fourteenth amendment issues presented by those proceedings than did In re Gault, supra, and In re Winship, supra.
Although the case comes before us with a full record, the absence of findings of fact by the district court precludes us from reaching the merits of this class action. We are presented only with the alternatives of an affirmance if we conclude that the complaint was properly dismissed or a remand for appropriate findings.
The broad class action determination quoted above placed before the court claimants in these categories:
1. Philadelphia juveniles who have not been, but in the future will be subjected to the intake procedures complained of. As to any specific Philadelphia juvenile it may be said that the likelihood of his being subjected to the intake procedures is so remote as to be speculative. It is a virtual certainty, however, that some Philadelphia juveniles will be subjected to the intake procedures. Thus it is a virtual certainty, not a matter of speculation, that there are some members of the class against whom no actual proceeding is pending but who will be subject in the future to the intake procedures.
2. Philadelphia juveniles who have been subjected to the intake procedures and the detention and interrogation which those procedures entail, and who have been discharged without formal petitions being filed against them. These fall back into category 1, but with the added disability that if they are again subjected to the intake procedures their prior processing may be known to the probation officer administering the intake.
3. Philadelphia juveniles who have been subjected to the intake procedures, against whom petitions for their adjudication as delinquents have been filed, who have proceeded to a hearing, and whose hearing terminated in an adjudication that they were not delinquent.
4. Philadelphia juveniles who have been subjected to the intake procedures, against whom petitions have been filed, who have proceeded to a hearing, and whose hearing is still pending.
5. Philadelphia juveniles who have been subjected to the intake procedures, against whom petitions have been filed, who have proceeded to a hearing, and who have been adjudicated delinquent.
Conover, the original plaintiff, was adjudicated on one of the three petitions pending against him and discharged on the other two. Thus he is in category 5 above. As to Myers, the intervenor, a demurrer was sustained to the petition against him and he was discharged. Thus he is in category 4 above. Since both had been subjected to the intake procedures, and both ran the risk of being subjected to them in the future, they were pressing claims in which they had a concrete interest in an adversary context. The district court recognized as much both when it refused to grant the original motion to dismiss the complaint and when it found them to be adequate class representatives for a class encompassing all five categories of claimants.
Of the five categories of claimants, only those in category 4 are literally claimants against whom a state proceeding is pending. Thus assuming, without deciding, that juvenile court proceedings should be equated to the state criminal prosecutions pending in Younger v. Harris and its companion cases, only that limited category of claimants should have been affected by those cases. The district ...