of the state procedures to determine whether the state proceedings afford an "adequate opportunity" to raise their constitutional claim. Under § 6324(2) of the Pennsylvania Juvenile Detention Statute, the child may be taken into custody pursuant to the laws of arrest. Once a child is in custody, § 6325 allows the correctional officer to detain the child if detention "is required to protect the person or property of others or of the child. . . .". Section 6326(3) requires that a child who is to be detained be brought before the court or delivered to a detention center designated by the court "with all reasonable speed." Once a child is brought before the court or delivered to the detention facility, § 6331 requires the "intake or other authorized officer of the court" to release the child "unless it appears that his detention . . . is warranted or required under § 6325." If the child is not released, a petition shall be presented to the court within twenty-four hours of the child's admission or the next court business day.
Section 6332 requires that the court or master hold an informal hearing not later than seventy-two hours after the child is placed in detention to determine whether detention is required under § 6325 and that probable cause exists. The child, his parents or guardian shall be given reasonable notice before the hearing. Before the hearing begins, the court or master shall inform the parties of their right to counsel and to appointed counsel if they are needy. Section 6337 allows the court to continue the proceeding to enable the party to get counsel.
Under § 6335, not later than ten days after the petition is filed, an adjudicatory hearing must be held before the judge without a jury in which the prosecutor presents evidence. The juvenile has the right to present witnesses at this adjudicatory hearing. The adjudicatory hearing may be continued up to ten days and a child kept in detention for that additional period if the court determines at a hearing that evidence will be available at a later date and that the child or community will be in danger or the child will abscond if he is not detained.
After the hearing, under § 6341, the court shall make its findings as to whether the prosecutor has proven beyond reasonable doubt that the child committed the acts ascribed to him.
These procedures do not guarantee plaintiffs an adequate opportunity to raise their constitutional claim. Section 6325 allows a correctional officer to make a determination that a child should be detained. No hearing is given at this stage in which plaintiffs can raise their constitutional claims. Section 6331 requires an intake officer to review the decision to detain the child but no hearing is granted at this stage. A child can be in detention for up to seventy-two hours without having the opportunity for a hearing or to raise this constitutional challenge. Up to this point in the proceedings, therefore, the procedural situation is exactly the same as that in Gerstein v. Pugh, supra, a case challenging the pretrial detention of Florida inmates without a probable cause hearing. As in Gerstein,3 for the first three days of detention pursuant to §§ 6325 and 6331, a child can be detained in Pennsylvania with absolutely no opportunity to challenge the constitutionality of the procedures.
Three days after apprehension, at the informal detention hearing provided for in § 6332, the juvenile has, for the first time, the opportunity to challenge the constitutionality of his detention. Immediately before the detention hearing, the court or master must inform the child for the first time that he has the right to be represented by counsel and to have counsel appointed. Presumably, at this point the detained child must choose between waiving his right to obtain counsel and requesting the continuance provided for in § 6337 so that he can obtain counsel. The statute is unclear as to how much longer the child can be detained awaiting the appointment of counsel.
Even assuming that the child has counsel at his seventy-two hour detention hearing, if the juvenile raises a constitutional challenge to his detention at the hearing and it is denied, an appeal from a denial will be quashed as interlocutory. Pennsylvania courts have consistently held that an appeal in a delinquency case is interlocutory until after the disposition stage, the equivalent of sentencing. Commonwealth v. Kiker, 289 Pa. Super. 188, 432 A.2d 1115 (1981). Specifically, the courts have quashed appeals from detention orders as interlocutory. In the Matter of Brown, 268 Pa. Super. 562, 408 A.2d 1146 (1979). And, once the juvenile is released from confinement, Pennsylvania courts will dismiss as moot appeals from the decision to detain. In the Interests of Del Signore, 249 Pa. Super. 149, 375 A.2d 803 (1977).
An individual juvenile cannot raise a constitutional challenge to the Juvenile Act on behalf of a class in the course of the juvenile court proceedings described above because Pennsylvania Rule of Civil Procedure 1703 requires that class actions be initiated by the filing of a separate complaint. Therefore, the doctrine recognized in federal courts of "capable of repetition yet evading review" which allows a named plaintiff to represent a class even though his claim has become moot will not be applicable. Assuming the Pennsylvania courts recognize that doctrine, the only recourse in state court would be for the plaintiff to institute a separate section 1983 suit in state court. Requiring the plaintiffs to institute a separate action in state court, however, would go well beyond the Younger doctrine. As explained above, a requirement that a plaintiff must exhaust his state judicial remedies has so far consistently been rejected by the Supreme Court.
Once a juvenile appears at the adjudicatory hearing required by § 6335, the child may have already been detained more than twenty days without an opportunity to appeal a finding by the lower court or master that his detention is constitutional. At the adjudicatory hearing, juveniles have challenged the admissibility of statements and identification on the grounds that they were obtained during their detention which did not comply with the mandates of the statute. Commonwealth v. Bey, 249 Pa. Super. 185, 375 A.2d 1304 (1977), In the Interest of Schirner, 264 Pa. Super. 185, 399 A.2d 728 (1979), In the Interest of White, 264 Pa. Super. 190, 399 A.2d 731 (1979). Presumably, juveniles would be permitted to raise at the adjudicatory hearing the question of the constitutionality of their detention indirectly in order to challenge the admissibility of statements and identifications obtained during the detention. And, presumably, after a finding of delinquency and disposition by the hearing judge or master, a juvenile could appeal the court's decision to admit the statements or identification obtained as a result of his allegedly unconstitutional detention. Where the juvenile's challenge to the constitutionality of his detention, however, does not attack the admissibility of evidence tending to establish guilt or innocence, the challenge will not be heard at the adjudicatory hearing because it will be irrelevant.
It is clear from the procedures described above that the only opportunity a juvenile has to attack the constitutionality of his detention directly is at the § 6332 informal detention hearing. Because Huffman v. Pursue, supra, and Juidice v. Vail, supra, stress the importance of pursuing state appellate remedies, and no such remedies exist in Pennsylvania, I find that the opportunity afforded to the plaintiffs in Pennsylvania state courts is inadequate.
Furthermore, because plaintiffs' constitutional challenge to the preventive detention statutes is an attack on a collateral issue which does not affect the merits of the prosecution, federal injunctive or declaratory relief in this case would not be the intrusive interference which Younger sought to bar. Fernandez v. Trias Monge, 586 F.2d 848 (1st Cir. 1978). Although the collateral nature of a constitutional attack is not determinative of whether Younger abstention is appropriate or not, State of New Jersey v. Chesimard, 555 F.2d 63 (3d Cir. 1977) (en banc), when an attack which is collateral to the merits of the prosecution is combined with a lack of procedures in state court by which to challenge the constitutionality of the allegedly unconstitutional statute, Younger abstention is inappropriate. Gerstein v. Pugh, supra, Fernandez v. Trias Monge, supra.
In Gerstein v. Pugh, a case challenging the absence of a probable cause hearing, the Court affirmed the district court's finding that Younger abstention was inappropriate by stating:
The District Court correctly held that respondents' claim for relief was not barred by the equitable restrictions on federal intervention in state prosecutions, Younger v. Harris. . . the injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution. The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits.
Defendants argue that even if the Younger doctrine does not require abstention I should exercise my discretion to abstain under the doctrines set forth in Railroad Commissioner v. Pullman, supra, or Burford v. Sun Oil Company, supra.
Pullman abstention "may be invoked where there is an unsettled question of state law, the resolution of which would affect the decision of a federal constitutional issue, either by obviating the need to decide it or by changing the light in which it must be viewed." Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743 (3d Cir. 1982), cert. denied, 456 U.S. 990, 102 S. Ct. 2270, 73 L. Ed. 2d 1285.
Plaintiffs argue that Pullman abstention is inappropriate here for two reasons. First, they argue that since they are claiming that preventive detention per se, violates the due process clause of the fourteenth amendment, a state court's narrowing interpretation of the statute would neither resolve nor affect the issue. Secondly, they argue that even if the fourteenth amendment does not prohibit all preventive detention, the statute violates due process because it is so vague and overbroad in its absence of procedures and standards of proof for determining whether a juvenile presents a danger to the community that it cannot be cured short of rewriting the statute.
Although I disagree that I will necessarily reach the question of whether preventive detention is unconstitutional per se, I agree with plaintiffs that the statute is so clearly lacking in standards that it would be impossible for the Pennsylvania Supreme Court to narrow the statute without rewriting it.
I refuse to exercise my discretion to abstain under the Pullman doctrine.
First, it would be useless to allow the State Supreme Court to attempt to narrow the statutory provisions in question. Secondly, this motion to abstain was filed almost two years after the filing of the complaint, and thirdly, my withdrawal from the adjudication at this point would cause an extended and unwarranted delay in the ultimate disposition of the case. Frederick L. v. Thomas, 557 F.2d 373, 383 (3d Cir. 1977).
Burford abstention is appropriate "where a difficult question of state law is presented which involves important state policies or administrative concerns." Heritage Farms, Inc., 671 F.2d at 746. It has two components: a procedural and a substantive one. The procedural component requires a federal court to defer to a specialized state regulatory agency for issues entrusted to the agency. Burford v. Sun Oil Company, supra.
The substantive component allows a federal court to abstain where difficult questions of state law bear on policy problems "of substantial public import whose importance transcends the results in the case then at bar." Colorado River Water Conservation District v. United States, 424 U.S. 800, 814, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976). Burford abstention is a limited doctrine which should not be applied "merely because resolution of a federal question may result in the overturning of a state policy." Zablocki v. Redhail, 434 U.S. 374, 380 n.5, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1977). Clearly, the federal constitutional concerns in this case outweigh the state's interest in detaining juveniles before trial. Therefore, I refuse to exercise my discretion to abstain under the Burford doctrine.
For the reasons explained above, I shall deny defendant's motion for judgment on the pleadings and/or for partial decertification of the plaintiffs' class.
Appendix to Opinion of the Court
The following are the statutory provisions challenged by plaintiffs. In its pertinent part 42 Pa. Cons. Stat. Ann. § 6325 reads as follows:
A child taken into custody shall not be detained or placed in shelter care prior to the hearing on the petition unless his detention or care is required to protect the person or property of others or of the child or because the child may abscond or be removed from the jurisdiction of the court . . .