a state law question as required by a statute or precedent conserves state judicial resources yet re-affirms the authority of the state government.
These general principles are easier to state than to apply. One difficulty is determining whether the state law is "clear". Another problem is balancing the policies of the abstention doctrine against other policies and equities, for example, the policy favoring prompt adjudication of civil rights claims.
If clarity is a borderline question, we should ask whether the dispute involves a sensitive area of state or local interest. Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970), (fishing rights in Alaska); Reid v. Board of Education, 453 F.2d 238, 243 (2nd Cir. 1972), (educational services for handicapped children). We must be especially scrupulous before concluding that the law is clear if the matter would otherwise be decided by a forum with particular expertise. Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943). The absence of judicial construction does not, by itself, render a statute unclear. On the other hand, inconsistent interpretations by different state courts and by executive officers are best resolved in the state appellate courts. Harris v. Moore, 420 U.S. 77, 95 S. Ct. 870, 43 L. Ed. 2d 32, 43 U.S.L.W. 4233 (1975). The abstention doctrine is less favored when the plaintiff has alleged the violation of a fundamental right. Compare Reetz, supra, and Askew v. Hargrave, 401 U.S. 476, 91 S. Ct. 856, 28 L. Ed. 2d 196 (1971), with Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971).
In Conover v. Montemuro, 477 F.2d 1073 (3rd Cir. 1973), the Third Circuit Court of Appeals held that abstention was not proper in a class action suit challenging intake procedures in the state juvenile court system. More precisely, the court said that the district court's abstention was improper because it did not take into account certain factors, namely, the need for prompt resolution of claims under the Civil Rights Act,
and the possibility that the district court was telling the plaintiffs to pursue state remedies that might not exist.
The three-judge court which decided Pennsylvania Association of Retarded Children v. Commonwealth of Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972), hereafter P.A.R.C., also rejected an argument that it should abstain. The motion was made by a co-defendant at an unusual juncture in the case -- the court was about to approve a consent agreement that had been drawn up primarily by the parties to the suit, with the active participation of the Attorney General, the Secretary of Education, and the Secretary of Welfare. The decree resolved several sensitive and difficult questions about the meaning of the Education Code. However, it would not create friction between the state and federal branches of government, said the Court, because these state officials affirmatively requested its adoption.
The P.A.R.C. court emphasized that abstention is an equitable doctrine, and in accordance with that observation it noted that a district court could, within its sound discretion, adopt flexible procedures to best reconcile the underlying policies of the Pullman doctrine with other important interests affected by a case. An example of this flexibility would be to abstain on one issue in a case, and adjudicate another.
A similar path was taken in New York State Association for Retarded Children, Inc., v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973). The court found that certain claims which had been thoroughly tried before the court required immediate attention, lest the plaintiffs suffer irreparable harm, 357 F. Supp. at 767, but that "the defendants appear to be making a substantial effort to comply with the requirements of the [new law]" 357 F. Supp. at 768. It concluded:
"For these reasons, the court will not abstain, but will restrict its relief. . .." 357 F. Supp. at 768.