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Conover v. Montemuro


decided: December 20, 1972.



McLaughlin, Adams and Gibbons, Circuit Judges. Adams, Circuit Judge, concurring.

Author: Gibbons


GIBBONS, Circuit Judge.

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 court held, nevertheless, that those cases mandated a dismissal as to the entire class. It reasoned:

"The procedure challenged affects persons only when they are brought into the juvenile court process. When this process has begun, the Younger and Samuels cases say, the federal courts must not interfere. . . . What plaintiffs' argument really means is that the named plaintiffs are no longer proper representatives of the class.

Plaintiffs argue that this action may nevertheless proceed with some redefinition of the class. I disagree. As to those persons who are now in the juvenile intake process and those who will be in the future, the principles set forth in the cited cases clearly apply. As to those who have been through the juvenile process, the issues presented are either moot (if the proceedings were terminated in favor of the juvenile) or they can be raised in federal court only through a petition for a writ of habeas corpus. Under the latter procedure, state remedies must be exhausted before the federal courts may pass on the merits of the constitutional claim. 28 U.S.C. § 2254(b)." 328 F. Supp. at 995.

Almost all of this reasoning is inconsistent with our subsequent decision in Lewis v. Kugler, supra. Since the decision of the Supreme Court in Mitchum v. Foster, supra, our conviction that Lewis v. Kugler was correctly decided has been reinforced. From those cases, from the Younger v. Harris group of cases and from other relevant authorities these rules of general application may be deduced:

A. When an action is brought under the Federal Civil Rights Acts raising federal constitutional claims, prior resort to the state courts, even where there may be an available state remedy, is not required. E.g., Zwickler v. Koota, 389 U.S. 241, 19 L. Ed. 2d 444, 88 S. Ct. 391 (1967); Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). There is no doctrine of exhaustion of state remedies applicable to the federal courts' jurisdiction under 28 U.S.C. § 1343. E.g., Wilwording v. Swenson, 404 U.S. 249, 30 L. Ed. 2d 418, 92 S. Ct. 407 (1971)(per curiam); McNeese v. Board of Education, 373 U.S. 668, 672, 10 L. Ed. 2d 622, 83 S. Ct. 1433 (1963); Rodriguez v. McGinnis, 456 F.2d 79 (2d Cir.), cert. granted sub nom. Oswald v. Rodriguez, 407 U.S. 919, 32 L. Ed. 2d 805, 92 S. Ct. 2459 (1972) (71-1369).

B. The Civil Rights Act of 1871, 42 U.S.C. § 1983, is an express exception to the anti-injunction statute, 28 U.S.C. § 2283, Mitchum v. Foster, supra ; Cooper v. Hutchinson, 184 F.2d 119 (3d Cir. 1950). Thus the pendency of a state court proceeding does not deprive a federal court of equity of jurisdiction to issue an injunction in cases brought on the authority of 42 U.S.C. § 1983.

C. A federal court may as a matter of discretion abstain in favor of an available state court adjudication if there is an unresolved question of state law which only the state courts can authoritatively construe and which may by virtue of such an authoritative construction avoid the decision of a federal constitutional issue.*fn2 For convenience we refer to such abstention as Pullman*fn3 type abstention. Such abstention involves no decision on the merits of the claim or even on the appropriateness of injunctive relief and is availed of as a device whereby a federal court may avoid a premature decision of a federal constitutional issue.

D. Weighed against the undesirability of a premature decision of the federal issue is the mandate from Congress in the Civil Rights Acts passed pursuant to the fourteenth amendment that federal courts will afford a prompt remedy for violations of that amendment and that such remedy includes federal fact finding.*fn4 See Mitchum v. Foster, supra. Thus, if abstention in face of a state court adjudication would be likely to cause delay or if the evidentiary and ultimate facts on which the fourteenth amendment claims depend are in dispute the federal court should exercise its discretion against Pullman type abstention.

E. In determining whether or not, in a case in which it has undoubted power to act, a federal court should on equitable principles enjoin a state court criminal prosecution, the federal equity court must take into account the available remedy at law of raising the federal constitutional claim in the pending state proceeding. That available remedy at law in the state court, when weighed with the comity due to a court of a coordinate sovereignty, will, in the absence of additional exceptional circumstances, always militate against the issuance of an injunction halting or interfering with the state prosecution. For convenience we refer to this rule as Younger type nonintervention. It is not abstention in the Pullman sense because it involves a decision on the merits of the claim for equitable relief that there is an adequate remedy at law in the state courts and that therefore federal equitable relief is inappropriate. The issue is not one of power or jurisdiction in this instance but simply of the appropriateness of equitable relief.

F. When the issuance of a declaratory judgment will have the same practical effect on a pending state prosecution as the issuance of an injunction, the same Younger considerations govern the appropriateness of that relief. Samuels v. Mackell, supra.

G. Even if a state prosecution is pending, injunctive or declaratory relief against state officers with respect to violations of federal constitutional rights not amounting to an injunction which will halt or substantially interfere with a pending prosecution may still be available. Lewis v. Kugler, supra at 1349. The award of either declaratory or injunctive relief may not present any problem of the comity due to a court of a coordinate sovereignty and will be governed by general legal or equitable considerations. If the requested declaratory relief against state officers would, however, adjudicate an issue such as the lawfulness of a search and seizure which on the basis of collateral estoppel might affect the state prosecution, then the federal court should not grant such relief.

H. The exhaustion requirement of the habeas corpus statute, 28 U.S.C. § 2254(b), does not apply to proceedings brought under 28 U.S.C. § 1343 and 42 U.S.C. § 1983. Until the state court proceeding produces a judgment of the state courts resulting in confinement, 28 U.S.C. § 2254(b) does not apply by its terms even to federal habeas corpus jurisdiction. It is simply not relevant to the Civil Rights Act. Wilwording v. Swenson, supra ; Rodriguez v. McGinnis, supra.

The district court decision did not correctly apply these rules. First, it assumed that the Younger principle applied to those class members against whom an actual proceeding had not yet commenced. As we made clear in Lewis v. Kugler, supra, that principle operated only against those persons then actually enmeshed in the toils of a state criminal proceeding. Next, it assumed that the exhaustion requirement of 28 U.S.C. § 2254(d) was in some manner applicable to an action brought under 42 U.S.C. § 1983. As to those class members who have not yet been confined as a result of a state court judgment, 28 U.S.C. § 2254(d) is inapplicable by its terms. As to those class members who are confined as a result of a judgment finding them to be delinquent, there is no authority which warrants engrafting the requirements of 28 U.S.C. § 2254(d) upon an action brought pursuant to 42 U.S.C. § 1983. Wilwording v. Swenson, supra ; Rodriguez v. McGinnis, supra.

The district court acted solely on the authority of Younger v. Harris, supra, and Samuels v. Mackell, supra. Thus we are not aware of that court's views as to the substantiality of the fourteenth amendment claims alleged on behalf of the class as to the possibility of a construction by the Pennsylvania courts of Pa. Stat. Ann. tit. 11, § 246 which would avoid a decision on those claims, or as to the availability of any Pennsylvania procedure which would provide the opportunity for such a construction. On the record before us, the original and the intervening plaintiffs have been processed through the Family Court Division of the Philadelphia Court of Common Pleas apparently without any opportunity to obtain an adjudication of their claims with respect to the intake procedures. Assuming the legal sufficiency of the petition that they be adjudged delinquent, and assuming the sufficiency of the evidence of their delinquency, we know of no Pennsylvania procedure whereby they may test the legality of the steps leading to a decision to file a formal petition against them. Such a procedure may exist, but it has not been called to our attention. Nor have the defendants called to our attention any civil remedy, outside the scope of the Pennsylvania Juvenile Court Act, by which the class members might obtain a construction of the Pennsylvania statute which would avoid a decision by the federal courts on the fourteenth amendment claims. Moreover, defendants have suggested no likely construction of Pa. Stat. Ann. tit. 11, § 246 (1965) which would avoid the claim that the probation officers in the intake process exercise virtually unbridled discretion. In such circumstances we may not, on the appellate level, affirm on the basis of a Pullman type abstention which the district court did not consider. At the same time, since the district court made no findings of fact, we cannot at this stage of the case rule out the possible propriety of such an exercise of the district court's discretion.

However, even if a Pennsylvania remedy exists, the district court cannot abdicate its responsibility as an article III court to determine facts which are of constitutional significance. Even with Younger type nonintervention the federal court must make the factual determination whether extraordinary circumstances exist which would take the case outside the ordinary rule that the state remedy at law is adequate. As Justice Holmes noted:

"The determination as to their rights turns almost wholly upon the facts to be found. . . . When those are settled the law is tolerably plain. All their constitutional rights we repeat, depend upon what the facts are found to be. They are not to be forbidden to try those facts before a court of their own choosing, if otherwise competent." Prentis v. Atlantic Coast Line, 211 U.S. 210, 228, 53 L. Ed. 150, 29 S. Ct. 67 (1908).

The purpose of Congress in enacting the Civil Rights Acts was to provide a federal forum for the enforcement of federal rights. See Mitchum v. Foster, supra at 241. Where an adjudication of those rights rests heavily on a factual determination, the ultimate responsibility for making this determination lies with the article III courts.

There is in the district court's opinion the suggestion of mootness. This suggestion is erroneous. Completion of the juvenile court proceedings did not remove Conover and Myers from membership in the class defined in the order which made the class action determination. They still were juveniles in Philadelphia who might in the future be subjected to the challenged intake procedures. They continued to press their objections to that procedure in an adversary context. See Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970); Flast v. Cohen, 392 U.S. 83, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968); Shannon v. HUD, 436 F.2d 809 (3d Cir. 1970). Indeed, even if their own claims had become moot, and they had not, see, e.g., Sibron v. New York, 392 U.S. 40, 50-58, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968); numerous class members remained whose claims were very much alive. See Moore v. Ogilvie, 394 U.S. 814, 23 L. Ed. 2d 1, 89 S. Ct. 1493 (1969). Conover and Myers remained adequate representatives of the entire class. See Gatling v. Butler, 52 F.R.D. 389, 395 (D. Conn. 1971); Adens v. Sailer, 312 F. Supp. 923 (E.D.Pa. 1970).

Finally there is the narrow issue whether, even as to class members actually before the Family Court Division of the Philadelphia Court of Common Pleas, the ruling in Samuels v. Mackell, supra, would preclude declaratory relief of some kind. Lewis v. Kugler, supra at 1349, is relevant here. That case suggests that if an actual proceeding is pending, as to those class members against whom those proceedings are pending certain types of declaratory relief will be inappropriate. It holds that the federal court should not foreclose the merits of the issue of legality of a search or seizure by granting a declaratory judgment. Such a determination would in effect substitute federal court fact finding for that already available in the state court on an issue going to the ability of the state to prove its charge. See e.g., Stefanelli v. Minard, 342 U.S. 117, 96 L. Ed. 138, 72 S. Ct. 118 (1951). This case does not present the same kind of issue. Declaratory relief with respect to the intake procedures will not necessarily hinder the eventual adjudicatory process of the Court of Common Pleas or substitute federal fact finding in any case in which a petition for adjudication of delinquency may be tried. Thus Lewis v. Kugler, supra, is not authority for the withholding of declaratory relief, even as to those class members presently before the Pennsylvania courts. In that case we pointed out that in the exercise of its broad equitable powers, a district court could fashion a remedy which would prevent deprivation of constitutional rights while at the same time avoiding unnecessary encroachment on state and local government functions, 446 F.2d at 1351-2. Since a remedy with respect to the intake procedures would not necessarily interfere with the adjudication functions of the Commonwealth's juvenile court, it is therefore not necessarily precluded by Younger v. Harris, supra, or Samuels v. Mackell, supra.

If the district court was in error in rejecting the defendant's claims to judicial immunity, 304 F. Supp. at 262, we would be required to affirm the dismissal of the complaint on that basis even though we did not agree with the grounds on which the court acted. See Riley Co. v. Commissioner, 311 U.S. 55, 85 L. Ed. 36, 61 S. Ct. 95 (1940); Helvering v. Gowran, 302 U.S. 238, 82 L. Ed. 224, 58 S. Ct. 154 (1937). Thus it is appropriate to comment that we agree with Judge Fullam's interpretation of Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967), and Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966), which distinguishes, for purposes of judicial immunity, actions for damages from actions for injunctive relief.*fn5 Our leading case of Cooper v. Hutchinson, supra, was an action for an injunction against a state court judge. It was neither limited nor overruled by Bauers v. Heisel, supra. See also Mitchum v. Foster, supra. Compare Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971) with Cooper v. Hutchinson, supra; cf. Magaziner v. Montemuro, 468 F.2d 782, 788 n. 5 (3d Cir. 1972).

The case will be remanded to the district court for findings of fact and conclusions of law. The parties have suggested at oral argument that because of some procedural changes in the intake procedures of the Family Court division of the Philadelphia Court of Common Pleas it may be appropriate to supplement the record. Our ruling does not preclude such action if the district court concludes that it is appropriate. If the district court concludes that what we have referred to as Pullman type abstention is appropriate it should inform us what possible narrowing constructions of the Pennsylvania Juvenile Court Law have been suggested, how these constructions would avoid the decision of the fourteenth amendment claims asserted on behalf of the class and what Pennsylvania procedure is available to class members for raising the issues. If it concludes that such abstention is inappropriate it should proceed to the merits of the fourteenth amendment claims, under the Pennsylvania Juvenile Court Law as applied and to the fashioning of an appropriate remedy if any is found to be necessary, consistent with the principles set forth in this opinion.

ADAMS, Circuit Judge, concurring.

Since the beginning of our constitutional history, the scope of authority properly exercisable by federal courts of equity has been circumscribed by a policy generally inhibiting interference with state criminal proceedings.*fn1 Resting upon principles of equity jurisprudence and federal -state comity, this policy of non-intervention posits the existence of dual sovereignties in our system of government and recognizes the value in permitting each to perform its own separate functions without interference from the other. This fundament forecloses a federal court from acting, except in narrow circumstances, to enjoin state criminal proceedings when the plaintiff has an adequate remedy at law and will not suffer irreparable harm as a result of federal court inaction.

Requiring, in part, a determination of the contours of this policy of federal non-intervention, the present case may be thought to implicate basic values of our constitutional scheme of government and thus to require a sensitive adjudicative touch. In resolving the issues raised, we must be mindful that our judicial power extends only to deciding the specific case presented to us. While attempting to maintain the essential role of federal courts both in preserving a healthy relationship between the nation and the states and in protecting constitutional rights, the federal judiciary must be alert to the dangers inherent in deciding cases more broadly than required by the precise issues presented. The goal must be reasoned, principled results based solely upon grounds necessary to the disposition of the controversy.

Since the majority opinion may be thought to stand for more than the narrow decision appropriate in light of the facts of this case, I feel constrained, in concurring in the result, to state the reasons for my position.

This suit was brought in the federal district court on April 8, 1969. On September 24, 1969, the district court, in an opinion and order relying upon the Supreme Court's decision in Zwickler v. Koota,*fn2 rejected the argument that it should abstain, and denied defendants' motion to dismiss the complaint. It permitted the suit to proceed as a class action and, after extensive pre-trial preparation, held a hearing on the merits on April 13, 1971.

Prior to the district Court hearing the Supreme Court had handed down, on February 23, 1971, a series of cases defining in some detail the authority of federal courts to enjoin, or to issue a declaratory judgment effectively terminating, pending state criminal proceedings.*fn3 On the basis of those decisions, the district court concluded that it was interdicted from granting the declaratory or injunctive relief requested by the plaintiffs, and dismissed the complaint on July 12, 1972. Whether that dismissal was improper is the question this Court must now decide.


Before analyzing the applicability of the recent Supreme Court cases limiting federal equity power, it is appropriate to state the reasons for my agreement with the majority's position that this controversy is not moot and can properly be maintained by the named plaintiffs.

For 180 years, the federal courts, powerless to issue advisory opinions,*fn4 have decided only those questions affecting the rights of litigants before them. Federal judicial power exists to adjudicate only those cases that are "definite and concrete, touching the legal relations of parties having adverse legal interests. . . . It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."*fn5 A jurisdictional concept,*fn6 the requirement that federal courts not decide moot cases serves to keep the exercise of federal judicial power within constitutional bounds.

The standing doctrine seeks to insure that the parties before the court have sufficiently adverse interests in the outcome of the litigation so that the issues will be fully, adequately, and concretely presented.*fn7 Although closely related, the mootness concept and the standing doctrine often reflect different concerns. Mootness raises the question whether the litigation itself is of such a character as to fall within the "case or controversy" limitation imposed upon the judicial power of Article III of the Constitution, whereas standing tests whether the particular litigant is the proper party to raise the issues involved.

In cases of the kind presented here, the mootness concept and the standing doctrine are often difficult to separate. For example, because the named plaintiffs are not presently being subjected to the procedure they claim to be unconstitutional, it might be argued that, as to them, the case is moot. Neither declaratory nor injunctive relief could correct the alleged past wrong. At the same time, it might be contended that the named plaintiffs lack standing to challenge the Pennsylvania procedure of detaining juveniles without a prompt preliminary hearing on probable cause, because the asserted wrong is past and only a presently detained juvenile would be a proper party to litigate the issue.

Whichever contention is pressed -- mootness or standing -- each is predicated, in this particular case, on the ground that this suit, looking solely to future relief, is not properly maintainable since the named plaintiffs have suffered only a past wrong. These arguments are without merit to the extent they overlook that this suit is a class action, as the district court permitted, on behalf of "all juveniles in Philadelphia, Pennsylvania, who have been or will be affected by action of the defendants alleged in the complaint."

In Washington v. Lee,*fn8 for example, Negro citizens brought a class action seeking a declaratory judgment and injunction against Alabama officials concerning their rights, and those of others similarly situated, not to be segregated by the state penal system. Although the named plaintiffs were in jail when the complaint was filed, they had been released by the time of trial. In answer to the defendants' argument that the named plaintiffs lacked standing to challenge the Alabama statutes and practices involved, the three-judge federal district court first noted that another court had stated in a similar case*fn9 that to have standing plaintiffs must show past use and a right to and a reasonable possibility of future use of the facilities in question. Instead of following that rule, the three-judge court held that, as to future use, the named plaintiffs did not have to demonstrate an intention to violate the law in such manner as to subject themselves in the future to imprisonment. The three-judge court held that to acquire standing, the plaintiffs must show that the operation of the jails "'permit[s] the recurrence of comparable violations.'"*fn10 The Supreme Court affirmed per curiam.*fn11

Analyzing a similar question in terms of the mootness concept, not the standing doctrine, another court has come to the same conclusion. In Gatling v. Butler,*fn12 plaintiff, an indigent juvenile, sought review of her delinquency adjudication, but was prevented by defendants, state officials, who would not docket the appeal without payment of a filing fee as required by Connecticut statute. Alleging that application of the statute deprived her and others similarly situated of equal protection and due process, the plaintiff requested the convening of a three-judge district court to determine her case on the merits and asked for injunctive and declaratory relief. The court was informed that a state court hearing had been scheduled for consideration of plaintiff's earlier application for waiver of filing fees. It therefore reserved decision pending outcome of the state court hearing. When the state court later granted plaintiff leave to file her appeal without payment of the filing fee, defendants urged the district court to dismiss the complaint on the ground, inter alia, that the state court had eliminated any controversy. The court held that the suit was not moot as to other class members even on the assumption that plaintiff's own case was moot,*fn13 and that the named plaintiff could continue to litigate the issues as representative of the class.

Thus, whether the present case is analyzed in terms of mootness or standing, the result is the same: it is properly maintainable by the named plaintiffs, if, as will be discussed infra, they are not otherwise barred by the doctrine enunciated in the Younger line of cases.

Even assuming that the case is moot as to the named plaintiffs, as the district court suggested, mootness as to them does not necessarily imply mootness as to the class represented.*fn14 Indeed, at least as to some members of the class -- those picked up and detained but who have not yet been discharged or given a preliminary or adjudicative hearing -- it is clear that there is a "real and substantial controversy," "touching the legal relations of parties having adverse legal interests."*fn15 Under these circumstances, the case is not moot and may properly be maintained by the named plaintiffs at least as class representatives.*fn16


Federal injunctive relief as a remedy for alleged unconstitutional action by state officials is neither novel nor noteworthy. In Ex Parte Young,*fn17 a federal court, having preliminarily enjoined railroads from complying with a Minnesota statute reducing their rates, adjudged Young, the state attorney general who had been enjoined from enforcing the statute, in contempt after he filed a state court petition to order the railroads to conform to the statute. The Supreme Court affirmed the judgment of contempt, holding that the suit was not barred by the 11th Amendment. It did not question the existence of federal power to enjoin a state official.

The legislative response to the apparent shift in the distribution of power between nation and state wrought by Ex Parte Young included the enactment of statutory curbs upon the scope of federal jurisdiction.*fn18 Not all limitations on federal judicial power, however, came from the Congress. The courts themselves began to develop self -imposed limitations on the exercise of federal power to enjoin state officials.

A. The Abstention Doctrine

Railroad Commission v. Pullman Co.,*fn19 though perhaps not the birthplace of the abstention doctrine, is at least the case that secured its foundations. In an action to enjoin an order of the Texas Railroad Commission that sleeping cars must be in the charge of conductors (white) not porters (black) as unauthorized by Texas law and as violative of the equal protection, due process, and commerce clauses of the Constitution, Mr. Justice Frankfurter, speaking for a unanimous Court, held that the district court should have exercised its equity discretion and abstained. First, because the case touched "a sensitive area of social policy" and because decision of constitutional questions should be avoided if possible, the Court thought it best for such cases to be decided on the basis of the state law questions involved "if a definitive ruling on the state issue would terminate the controversy."*fn20 Second determination by the federal court of the state law question would be unwise: "No matter how seasoned the judgment of the district court may be, it cannot escape being a forecast rather than a determination."*fn21 However, the court noted another factor of importance:

"Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies. . . ."*fn22

As a technique for refusing to exercise federal jurisdiction when the case's result might turn on issues of state law, the abstention doctrine rests fundamentally upon a reluctance to decide avoidable, federal constitutional questions. Of course, a policy of eschewing unnecessary constitutional decisions cannot by itself justify abstaining. Instead, when underlying and determinative state law issues are present, the federal court could satisfy the policy of avoiding constitutional decision by deciding the case itself on the basis of state law.*fn23 That federal courts are not inherently powerless or incompetent to resolve state law issues is clear: in diversity cases, for example, they must often do so.*fn24 But, because of the presence of state law questions, the fact that a federal decision regarding them cannot be determinative, and the kind of disruption that an erroneous federal decision pertaining to state law may cause to state policy, federal abstention in favor of at least a preliminary state court adjudication is justified.

Application of the abstention doctrine, however, must be predicated upon the presence of a state law question capable of making constitutional decision unnecessary.*fn25 The absence of such a state law question in the present case precludes refusing to adjudicate this controversy on abstention grounds.

Unlike the Pullman case, where the authority of the Railroad Commission under Texas law to issue the challenged order was unclear, here there is little question regarding the authority as a matter of Pennsylvania law to detain juveniles during the intake process without a preliminary hearing on probable cause. Pennsylvania explicitly prohibits preliminary hearings in juvenile proceedings.*fn26 Under these circumstances, a state court decision would not render unnecessary a determination of the federal constitutional issue raised by plaintiffs. And, as the cases make clear, absentention is not justified to afford the state courts an opportunity to pass upon the federal constitutional question presented.*fn27

B. Strict Adherence to Prerequisites of Equity -- The Younger Line of Cases

In addition to developing the abstention doctrine to counteract to some degree the shift in federal-state relations threatened by the implicit rationale underlying Ex Parte Young, the federal courts have taken special precautions, in suits to enjoin state officials, to insure that federal interference occur only when necessary to protect the plaintiff's rights. To determine whether the exercise of equitable power is necessary, the courts have focused upon whether the plaintiff has an adequate remedy at law and whether he will suffer irreparable injury as a result of federal court inaction.

When requested to interfere with state criminal proceedings, the federal courts have been particularly strict in applying equity requirements. In Douglas v. City of Jeannette,*fn28 for example, petitioners, members of Jehovah's Witnesses, brought suit in federal court to restrain threatened state prosecution of them for violating a city ordinance prohibiting the solicitation of orders for merchandise without first obtaining a license and paying a license tax. The Supreme Court held that the district court, in the exercise of its equity powers, should not "interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent. . . ."*fn29

In the circumstances of that case, the Court found no irreparable injury.

"It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts. Its imminence, even though alleged to be in violation of constitutional guarantees, is not a ground for equity relief since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for an injunction.*fn30

"It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith, or that a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford petitioners any protection which they could not secure by prompt trial and appeal pursued to this Court.*fn31

The Supreme Court has recently re-affirmed the principle of Douglas regarding federal interference with state criminal proceedings. In Younger v. Harris,*fn32 Harris was charged in a state court with violating the California Criminal Syndicalism Act. He then filed suit in a federal district court alleging that the prosecution and the existence of the California statute "chilled" his First Amendment rights, and asked that the district attorney be enjoined from prosecuting him. A three-judge district court issued the requested injunction, after holding that it had authority to restrain the district attorney and that the statute was void for vagueness and overbreadth. The Supreme Court reversed the judgment "as a violation of the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances."*fn33 In Samuels v. Mackell,*fn34 the court held that the same rule applies to declaratory judgment actions.

Revealing a deep concern for federal-state relationships and the delicacy with which cases requesting federal interference with pending state criminal proceedings must be handled, the Younger decision "rests on the absence of the factors necessary under equitable principles to justify federal intervention. . . ."*fn35 As the Supreme Court asserted:

"[the] longstanding public policy against federal court interference with state court proceedings . . . . [rests in part upon] the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief."*fn36

The Court found neither of these equity prerequisites present in Younger. An adequate legal remedy was available in the pending state criminal proceeding where Harris would be able to raise his constitutional claims by way of defense. In addition, denial of federal equitable relief would not, in the Court's view, cause Harris irreparable injury which, for purposes of cases requesting federal interference with state criminal proceedings, the Court defined as having to be "'both great and immediate.'"*fn37

"'No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid.'"*fn38

"'It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith . . . .'"*fn39

As will become apparent, plaintiffs have here presented a case sufficiently distinguishable from the Younger series of cases so as not to require the same result.*fn40

Both Younger and Samuels presented factual situations in which defendants in criminal cases were each attempting to attack the constitutionality of the statute upon which his state prosecution was based.*fn41 In both these cases, because the constitutional challenge was to the very law forming the basis for prosecution, declaratory or injunctive relief, resting upon a holding of unconstitutionality, would effectively have brought the pending state criminal proceeding to a halt. In each of the Younger series of cases, the interest of the state in prosecuting criminal proceedings without interference would have been seriously frustrated by the requested federal court action.

At the same time, in none of the Younger line of cases would federal court interposition have produced a corresponding, appreciable gain for the protection of federal constitutional rights. Younger, Samuels, and Perez v. Ledesma each presented situations in which the prosecuted parties could raise their constitutional assaults during the course of their pending state criminal trials. Moreover, in Boyle v. Landry, none of the plaintiffs had been prosecuted, charged, or even arrested under the particular statute they were challenging.*fn42

The present case, on the other hand, produces a significantly different factual pattern.

First, no one is here attacking the constitutionality of the statute forming the basis for the delinquency proceeding, itself. Plaintiff Conover, for example, is not urging that assault and battery cannot constitutionally be made a delinquency violation or crime, nor is he praying for injunctive or declaratory relief against a pending delinquency adjudication.*fn43 Rather, plaintiffs are here attempting to secure only a federal court judgment that holding juveniles without a preliminary hearing or an equivalent proceeding to ascertain probable cause is unconstitutional.*fn44 Under these circumstances, a federal court's declaration of unconstitutionality or an injunction requiring the officials to institute a preliminary hearing procedure would in no way adversely affect the state's legitimate interest in conducting its delinquency hearings without direct interference. No delinquency hearings would be enjoined. Indeed, the sole effect of giving plaintiffs the relief they seek would be a requirement that, in the future, preliminary hearings or an equivalent proceeding to determine probable cause be held. Simply put, the state would no longer be permitted to detain juveniles without a determination of probable cause for such detention.

The foregoing view, that plaintiffs in the present case are not requesting the kind of federal interference proscribed by Younger and Samuels, is supported by this Court's recent decision in Lewis v. Kugler.*fn45 There, plaintiffs brought suit under § 1983 on behalf of themselves and all others similarly situated and alleged that while travelling upon New Jersey highways, they had been subjected to arbitrary stops and unreasonable searches by state policemen. They sought, inter alia, a declaration that the alleged practice of selective searches is unconstitutional and an injunction against its continuance. At the time suit was filed, ten of the thirty-seven named plaintiffs were subject to pending state criminal proceedings.

Dealing with the recent Younger line of cases, the Court first noted that they "are pertinent . . . only insofar as the complaint seeks relief in the nature of an injunction against state criminal proceedings or declaratory relief which would interfere with state criminal proceedings."*fn46 Because the ten plaintiffs being prosecuted would have an opportunity to raise their constitutional claims in the state proceedings, the Court denied an injunction against prosecution and "a declaratory judgment that the searches and seizures forming the basis of the state criminal proceedings against the 10 are unconstitutional. . . ."*fn47 The Court also held, however, that the federal district court could consider the claims of the ten plaintiffs being prosecuted, along with the claims of the other plaintiffs, in determining whether the practice of selective searches was unconstitutional.

"This case differs from Samuels, however, in that the 10 plaintiffs being prosecuted, in addition to seeking relief against the prosecutorial authorities, also seek relief against the New Jersey State Troopers. As we have noted, that relief is not barred by the Younger and Samuels line of cases. . . ."*fn48

Lewis v. Kugler, then recognizes that the principle of Younger and Samuels applies when the relief sought is against a pending state criminal prosecution. The Court permitted relief by those being prosecuted to the extent such relief would not interfere with pending criminal proceedings. The effect of granting equitable relief in the present case, as in Lewis v. Kugler, will not seriously interfere with or terminate any state adjudications of delinquency.

That equitable relief is not here barred by the Younger line of cases does not imply, of course, that the plaintiffs are necessarily entitled to an injunction or a declaratory judgment.*fn49 Determining the propriety of granting or denying such relief in this case depends upon whether plaintiffs have an adequate remedy at law and whether they will suffer irreparable harm in the absence of a federal equity court's aid. Because the present record is inadequate to enable this Court to make such a determination, I agree with the majority's conclusion that this case should be remanded to the district court for findings of fact and conclusions of law.

The district court may well find, for example, that state habeas corpus*fn50 or declaratory relief is available and adequate to provide a determination of the constitutional claims presented here. Although the availability of relief in the state courts does not, in § 1983 suits, preclude federal court action on exhaustion grounds,*fn51 such procedures may constitute the "adequate remedy at law" barring equitable relief. Moreover, a § 1983 suit for damages in the federal court may or may not be "adequate" to satisfy the claim of plaintiffs and the class they represent.*fn52

In view of the circumstances presented here, this case should be remanded to the district court. If that court decides that plaintiffs have an adequate remedy at law or will not suffer irreparable harm as a result of federal court inaction, dismissal of the case would be in order. On the other hand, if the necessary equity factors are demonstrated, the district court should proceed to adjudicate the matter and award, if plaintiffs prevail on the merits, appropriate relief.*fn53

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