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New Jersey Education Association v. Burke


argued: February 24, 1978.



Adams and Higginbotham, Circuit Judges, and Bechtle, District Judge.*fn*

Author: Adams

ADAMS, Circuit Judge.

Legal precepts tend to expand, inexorably and sometimes imperceptibly. This is so, at least in part, because a broadly-formulated legal principle is by its very nature applicable to a wide range of situations. In any particular case, advocacy impels each party to claim the benefit of a potentially applicable doctrine, and in the absence of countervailing principles, consistency leads courts to decide in accordance with the suggested rule. But as a doctrine travels beyond the circumstances which generated it, the reasons which gave rise to that doctrine grow more attenuated, and the court is progressively more likely to encounter offsetting policies not present in the original application.

The abstention doctrine of Younger v. Harris has undergone such an expansion in recent years, as its equitable barrier to federal intrusion upon pending state prosecutions has been broadened to encompass a variety of other proceedings. In the present case, where we are called upon to review the application of Younger to a civil proceeding in which the state is a defendant, we must determine whether, in this new setting the policies undergirding Younger are sufficiently applicable to warrant further extension of the rule.


On September 15, 1976, the New Jersey State Board of Education amended regulations governing the qualifications of teachers in bilingual/bicultural education programs so as to require that all teachers - whether or not they held tenure - attain fluency in English, even if their teaching is conducted in Spanish. A month later, a statutory appeal from those regulations was filed in the New Jersey Superior Court on behalf of a class consisting of all bilingual/bicultural education teachers in New Jersey.

Upon being assured that no teacher would be terminated as a result of a denial of interlocutory relief, the Superior Court, without prejudice, denied a motion "for Emergency Ad Interim Stay of Enforcement". On November 17, 1976, the Superior Court again denied a motion for interim relief without prejudice.

The class thereupon, on November 22, 1976, filed an action in the New Jersey District Court. The federal action challenged the regulations under 42 U.S.C. § 1983,*fn1 on a number of constitutional grounds, and requested injunctive relief and declaratory judgment. After a hearing held on April 22, 1977, Judge George Barlow dismissed the complaint, on the ground that Younger v. Harris*fn2 interdicted injunctive relief, despite the teachers' offer to dismiss their state court action.*fn3 An appeal from that dismissal was timely filed.

In the interval between Judge Barlow's order and the oral argument before us, there were several relevant developments in the state courts. Thus, on April 25, 1977, the New Jersey Superior Court granted a stay against the operation of the challenged regulation. However, on July 12, 1977, the Superior Court sustained the regulations in a three-page per curiam opinion. That opinion, in addition to rejecting a number of purely state law challenges, held that the regulations were not "arbitrary or unreasonable" and went on to state:

To the extent appellants are concerned with that which they describe as an "irrefutable presumption," disfavored in law . . . we observe that the result in Berger v. Board of Psychologist Examiners, [172 U.S. App. D.C. 396], 521 F.2d 1056 (D.C. Cir. 1975) would unquestionably have been different had Berger there had the opportunity for individual review provided here. . . . We leave the application of the regulations to any individual to the particular record he established in such a case.*fn4

The teachers' request for certification was denied by the New Jersey Supreme Court, and no attempt was made to seek review in the United States Supreme Court.

New Jersey now contends that the appeal from the district court should be dismissed on the grounds of res judicata in light of the New Jersey court's actions.*fn5

Two issues are therefore presented in this proceeding: (1) the propriety of Judge Barlow's dismissal of the federal action on Younger grounds, and (2) the res judicata effect on the federal action of the subsequent state court determination.


1. The Realm of Younger

Judge Barlow decided this case shortly after the Supreme Court handed down Juidice v. Vail.*fn6 Based on the holding in Juidice that Younger forbade an injunction against state contempt proceedings, even though such proceedings arose out of a dispute between private parties, Judge Barlow concluded that "because the plaintiffs have at least some prospect of vindicating their constitutional rights in the state court, this Court will not intervene in the controversy."*fn7

Such a declaration would represent a significant extension of the Younger doctrine. The heart of Younger lay in the area of a pending criminal prosecution. The "traditional reluctance" of courts of equity to enjoin on-going criminal proceedings*fn8 was combined with the somewhat distinct interest of comity, that federal courts not interfere unnecessarily with a state's attempts to enforce its criminal law in its own courts.*fn9 The result was a bar to federal interference in on-going state prosecutions, absent extraordinary circumstances. In contrast, the requested relief in the present controversy would affect a wholly civil proceeding brought by a private litigant. This distinction in our view takes the case before us outside the ambit of Younger.*fn10

Juidice is the only case in which the Supreme Court has accorded Younger deference to a private action in a state court. It is, moreover, one of only three cases in which Younger has been applied by the Supreme Court outside the domain of criminal proceedings.*fn11 And the facts of Juidice may well make it sui generis.

Federal tribunals, the Court in Juidice decided, could not enjoin a state court's enforcement of a contempt citation. The contempt power used by the state courts to assure respect for their workings lies, as the Court in Juidice specifically noted, "at the core of the administration of a State's judicial system."*fn12 Direct interference with a state contempt citation, even though civil in nature, is close to the type of intervention into state criminal processes condemned in Younger ; it invades the right of the state to vindicate its authority in its own courts.*fn13 To bar such an incursion carries few implications for the broad range of civil proceedings, a fact which the five-man majority in Juidice explicitly recognized.*fn14

Similarly, in Trainor v. Hernandez,*fn15 which held Younger applicable to an action taken by a state "in its sovereign capacity" to recoup fraudulently obtained welfare benefits, Justice White, for a five-man majority, pretermitted the applicability of " Younger principles to all civil litigation."*fn16 Justice Blackmun, the fifth subscriber to the majority's position in Trainor, wrote a separate concurrence. In it, he reaffirmed the language of Justice Black's original formulation in Younger, asserting that "the concept does not mean blind deference to states' rights" but only the avoidance of " unduly interfere with the legitimate activities of the States."*fn17 Pursuing what he described as the "requirement of balancing federal and state interests,"*fn18 Justice Blackmun noted that except for Huffman and Juidice, Younger had previously been limited to criminal proceedings. These situations in Huffman and Juidice, he declared, were of special interest to the state.*fn19

Regarding the proceeding before him, Blackmun wrote:*fn20

I, too, find significant the fact that the state was a party in its sovereign capacity to both the state suit and the federal suit. Ante at 444. Here, I emphasize the importance of the fact that the state interest in the pending proceeding was substantial. In my view, the fact that the state had the option of proceeding either civilly or criminally to impose sanctions . . . demonstrates that the underlying state interest is of the same order of importance as the interest in Younger and Huffman. The propriety of abstention should not depend on the state's choice to vindicate its interest by a less drastic, or perhaps more lenient route.

Undertaking the type of balancing employed by Justice Blackmun, who cast the deciding vote for reversal in both Juidice and Trainor, it seems to us that the policies weighing in favor of Younger abstention have been significantly diluted in this case. Unlike Trainor and Huffman, the statute at issue here is unrelated to the enforcement of the state's criminal laws; indeed, citizens rather than the government initiated action in the New Jersey state court. Neither the traditional equitable aversion toward intermeddling in criminal processes, nor the state's interest in enforcing its laws in its own forum is present.*fn21

In further contrast to Juidice, the adjudication of the constitutionality of administrative regulations is not a "core" function of the state judiciary.*fn22 Federal equitable action addressed to administrative regulations would not endanger the smooth functioning of the state judicial system. Moreover, the relief sought includes a declaration of rights and an injunction against state administrative agencies, rather than an injunction against state court action, a procedure which the plaintiff offered to withdraw.

Thus, the result reached by Judge Barlow is not compelled by the holdings of the previous cases in the Younger line. And, as explicated below, other principles counsel against such an extension.

2. Countervailing Considerations; The Values of Federal Jurisdiction

Judge Barlow's opinion suggests that Younger bars federal intervention whenever a remedy might be available in a state criminal or civil action. But such an exhaustion doctrine has been explicitly rejected by the Supreme Court in the context of § 1983 proceedings. In Monroe v. Pape,*fn23 the Court held that:

It is no answer [to a suit under § 1983] that the state has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy and the latter need not be first sought and refused before the federal one is invoked.

The rule of Monroe, we believe, has not been debilitated by the development of Younger.*fn24

But even if Judge Barlow's interpretation of Younger were limited to erecting a rampart against federal adjudication whenever a state case is pending, it would be at odds with a basic premise of our federal judicial system. It is fundamental that where Congress has granted concurrent jurisdiction, a plaintiff is free to bring suit in both the state and federal forums for the same cause of action. As Justice Rehnquist noted this term:

The traditional notion is that in personam actions in federal and state court may proceed concurrently, without interference from either court . . . . We have never viewed parallel in personam actions as interfering with the jurisdiction of either court; as we stated in Kline v. Burke Construction Co., 260 U.S. 226, [43 S. Ct. 79, 67 L. Ed. 226] (1922):

An action brought to enforce [a personal liability] does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending. Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata. . . ."*fn25

According to Justice Black's seminal opinion, the Younger doctrine finds its roots in the "slogan, 'Our Federalism,' born in the early struggling days of our Union of States."*fn26 Since the traditional right of the plaintiff to proceed simultaneously in state and federal forums has an equally long lineage it would seem to follow that the plaintiffs' right is not alien to the counsels of Younger, and therefore that abstention was improper in this case.*fn27

Finally, we note that the more broadly the Younger doctrine is pressed, the more it encroaches upon explicit congressional grants of equitable jurisdiction. The extreme of the extension would be an assertion that Younger precludes federal injunctions whenever any state proceeding is pending. Such an approach would seem clearly inappropriate. Since 1793 Congress has specifically prohibited by statute - now codified as 28 U.S.C. § 2283 - the issuance of federal injunctions to stay state court actions except in limited circumstances.*fn28 If the principles of federalism and comity bar issuance of such injunctions in all civil cases, § 2283 would be superfluous. Moreover, such an expansion of Younger would be repugnant to those federal statutes which "expressly authorize" injunctions to stay proceedings in a state court.*fn29

A more moderate extension would still generate tension with Congressional policies. And while such discord may not alone preclude expansion of Younger's injunctive bar, frustration of Congressional policy weights heavily against it.

Here, the appellants claimed a violation of their constitutional rights under 42 U.S.C. § 1983, and invoked federal jurisdiction under 28 U.S.C. § 1343(3). In Mitchum v. Foster,*fn30 without dissent, the Supreme Court held that § 1983 is an expressly authorized exception to the general statutory bar to injunctions against state court proceedings. And in Vendo Co. v. Lektro Vend,*fn31 all of the members of the Court accepted Mitchum as an authoritative exposition of the law regarding § 1983. The plurality, per Justice Rehnquist, restated the holding in Mitchum :*fn32

We recounted in detail that statute's history which made it abundantly clear that by its enactment Congress [had] demonstrated its direct and explicit concern to make the federal courts available to protect civil rights against unconstitutional actions of state courts. We summarized our conclusion in these words:

This legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts. Mitchum, 407 U.S. at 242.

In light of the policy embodied in § 1983 and reiterated in Vendo, we are most reluctant to stretch the equitable doctrine of Younger beyond its prior boundaries to encompass a situation in which the only pending proceeding is a civil action filed by a federal plaintiff in a state court. As the Supreme Court stated in England v. Board of Medical Examiners,*fn33 "There are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled without his consent and through no fault of his own, to accept instead a state court's determination of those claims."

3. The Balance

Younger and its offspring "express equitable principles of comity and federalism."*fn34 The application of these principles, in turn, requires "sensitivity to the legitimate interests of both state and national governments"*fn35 as well as consideration for the rights of litigants. In this case, we review a decision advancing the Younger doctrine well beyond the perimeter which it previously occupied. Such a salient, moreover, thrusts into an area in which both the traditions of our dual court system, and congressional efforts to protect constitutional rights favor the allowance of federal relief. Accordingly, we believe Younger is not controlling.

Our conclusion is strengthened by the sole Supreme Court case which we have found to be directly on point. In Sweet Briar Institute v. Button,*fn36 a college brought suit in federal court to enjoin state officials from enforcing a racially restrictive covenant contained in a bequest to the college. In view of the fact that the college's constitutional challenges had been rejected in a pending action in state court, the federal tribunal stated that policies of comity and res judicata precluded its entertaining the suit. Although the district court asserted that dismissal was warranted, it deferred such action to await the final resolution of the state proceeding.

On appeal, the Supreme Court reversed in a brief per curiam opinion,*fn37 citing England and Kline, and remanded for consideration on the merits.*fn38 Though decided before Younger, Sweet Briar is a substantive adjudication and it is procedurally identical with the case before us. It is thus persuasive support for the conclusion that the dismissal by the district court here was improper.


The determination that Younger did not bar adjudication by the district court, however, carries us only part of the distance toward resolving the issues of this case. If Judge Barlow improperly dismissed on Younger grounds - as we hold he did - we must deal with the question of the proper effect to be given to the state court ruling.

1. The Rule

Younger, itself, erects a barrier against federal action in the face of a pending state prosecution. But Younger's definition of "pending" prosecution has also manifested a proclivity to cast its shadow broadly. Language in Huffman v. Pursue, Ltd.,*fn39 where federal action was foreclosed by a state tribunal's ruling which the federal plaintiff declined to appeal, may be read to imply that the principles underlying Younger require a federal court to give broad preclusive effect to unappealed state court judgments. Such an intimation, however, is substantially weakened by later cases.

In Ellis v. Dyson,*fn40 the plaintiff had been convicted in a municipal court proceeding of the crime of loitering. Rather than appeal his conviction and commence a trial de novo, the plaintiff brought a declaratory judgment action in federal court challenging the statute under which he had been prosecuted. On appeal the Supreme Court declined to dismiss on Younger grounds.

More recently, in Wooley v. Maynard,*fn41 a plaintiff challenged a New Hampshire ordinance forbidding the defacing of the motto "live free or die" on license plates. Although he had three times pleaded not guilty on the ground that displaying the motto violated his religious convictions, the plaintiff had thrice been found guilty of misdemeanors for covering the motto, and had declined to appeal his convictions. Rather, he brought an action for an injunction in federal court. The Supreme Court upheld the issuance of an injunction against further enforcement of the statute, commenting that the Huffman result arose out of the fact that the suit there attempted to enjoin the enforcement of a state court decree that ordered the plaintiff's theater closed as a public nuisance. Thus, not only was Younger held to be inapposite, but an unappealed judgment resulting from a previous suit raising identical issues was apparently not given binding effect.*fn42

Although Huffman is not controlling, the question here should still be resolved on the basis of principles which take into account the nature of our federal court system and the constitutional imperatives which it protects. Rather than Huffman, the applicable precedent is England v. Louisiana State Board of Medical Examiners.*fn43 In England, the plaintiffs had been remitted under Pullman abstention to a Louisiana state court. After the plaintiffs' return to federal court following state litigation, the United States Supreme Court refused to grant preclusive effect on a federal constitutional issue to the judgment of the Louisiana Supreme Court. The United States Supreme Court stressed the importance of the "right to litigate his federal claims fully in the federal courts,"*fn44 and the potentially decisive importance of federal fact-finding.*fn45 To deprive a litigant of a federal forum against his will, the Court declared, would "be at war with the unqualified terms in which Congress, pursuant to constitutional authorization, has conferred specific categories of jurisdiction . . . ."*fn46 Instead, it held, "the litigant is in no event to be denied his right to return to the District Court unless it clearly appears that he voluntarily . . . [and] fully litigated his federal claims in state courts."*fn47

England implies that the state court determination in this case should not govern the issues here unless the plaintiffs could be said to have waived their rights to litigate in federal court by fully and unreservedly litigating their claims in state court.

The preclusive effect of prior state court judgments on § 1983 suits has, however, evoked a spectrum of overlapping and inconsistent precedent and commentary.*fn48 One relatively clear line of cases, looking to the principles of res judicata which govern the effect of prior judgments generally holds that where "a federal constitutional claim is based on the same asserted wrong [which] was the subject of a [prior] state action, and where the parties are the same, res judicata will bar the federal constitutional claim, whether it was asserted in state court or not."*fn49

Such an interpretation is not compelled by the terms of the England decision. Indeed, England's broad discussion of the right to a federal forum and the necessity of "unreserved litigation" to waive that right would seem to point to an equally broad right to reserve federal constitutional claims.*fn50 And while a policy of discouraging vexatious litigation and conserving judicial resources can apply to the interaction between state and federal decisions as well as to the binding effect of a judgment rendered by the same judicial system, a restrictive concept to the right to a federal forum has significant disadvantages. To hold that state court litigation bars a federal forum from deciding any claims which might have been raised before the state court would turn the state court into quicksand. It would not only serve as a trap for unwary plaintiffs who desire a federal tribunal, but encourage competently represented litigants to forego any venture into state jurisdiction to exhaust state administrative and judicial procedures on pain of losing their right to a federal hearing. Such results are hardly salutary.*fn51

In our view, at least where a federal suit is commenced before a final decision by the state court, the proper rule is that enunciated by the Second and Seventh Circuits: a state court judgment forecloses a § 1983 litigant from raising grievances in federal court only if such claims have been pressed before, and decided by, a state tribunal.*fn52

Such a rule avoids the tendency of the "could-have-litigated" test to discourage the use of state forums to determine matters of state law, while at the same time giving due regard to matters actually decided by the state tribunals. Further, it responds to the particular concern for assuring the right to a federal forum in which to assert constitutional claims. And finally, it captures the substance of the Supreme Court's holding that:

If a party freely and without reservation submits his federal claims for decision by the state courts, litigates them there and has them decided there. . . he has elected to forego his right to return to the District Court.*fn53

2. The Application

The question with regard to the New Jersey judgment thus is whether the plaintiffs in this case "freely and without reservation" litigated their grievances in state court. We conclude that such litigation could be said to have occurred only with respect to a portion of their claims.

As noted above, the filing of a federal declaratory and injunctive action here occurred before any determination by the state court other than denial of preliminary relief without prejudice. In addition, the plaintiffs offered to dismiss the state court action. But this offer was rejected, and the plaintiffs were remitted to their state court suit on twin Younger/Pullman grounds. The situation is therefore analogous to the England paradigm, in that the federal action, when filed, impinged upon no final state judgments. Accordingly, insofar as plaintiffs did not "fully litigate" the issues in state court, they should be permitted to return to the federal forum.

There is no evidence that the contentions regarding ex post facto violations, unconstitutional impairment of the obligation of contracts and uncompensated taking of private property were pressed in the state proceedings. Indeed, this is admitted by the defendants in their brief in support of their motion to dismiss.*fn54 With respect to these claims, the rule we adopt mandates federal consideration on the merits.

Plaintiffs' due process and equal protection challenges present a more difficult problem. In their brief before the New Jersey Superior Court, the plaintiffs pressed these contentions in terms quite similar to those asserted before us.*fn55 The New Jersey Court apparently resolved these issues against the plaintiffs on the merits.*fn56

The conditions for an England waiver consequently may well be met on these points, and a federal court may be barred from allowing relitigation of the equal protection and due process challenges.*fn57 However, res judicata is an affirmative defense, dependent here on the factual issue of what submissions were actually made to the state court. Since we do not have before us a full record, it is appropriate to remand the case to the district court to allow such factual issue to be litigated there in the first instance.


The district court erred in abstaining on Younger grounds. However, the explicit holdings of the New Jersey courts on plaintiffs' due process and equal protection challenges may be res judicata, and the dismissal of these claims will be reversed and remanded for the purpose of ascertaining whether such contentions were fully and freely litigated in the state courts. Plaintiffs' remaining claims will be remanded to the district court for proceedings on the merits.

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