Petition — Burke v. New Jersey Education Ass'n
Supreme Court brief1978
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Supreme Court, U. &
| Jue 81 1978
In THE
M
Supreme Court of the Buiter Staten CLERK
Ocroser Term, 1978
poe Rae Be Be
FRED G. BURKE, Commissioner of Education of the State of New Jersey,
as Commissioner and Individually; RUTH H. MANCUSO, President of
the New Jersey State Board of Education, as President and Individually ;
and the NEW JERSEY STATE BOARD OF EDUCATION,
Petitioners,
v.
NEW JERSEY EDUCATION ASSOCIATION; PATERSON EDUCA-
TION ASSOCIATION; CAMDEN EDUCATION ASSOCIATION ;
EDUCATION ASSOCIATION OF PASSAIC; NEWARK TEACH-
ERS ASSOCIATION; WEST NEW YORK EDUCATION ASSOCI-
ATION; UNION CITY EDUCATION ASSOCIATION, New Jersey
Corporations; JOSE YI; and MANNY DePARA,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR '
THE THIRD CIRCUIT
JOHN J. DEGNAN,
Attorney General of New J orem.
Attorney for Petitioners, Fred G. Burke,
Commissioner of Education of the
State of New Jersey, Ruth H. Man-
cuso, President of the New Jersey
State Board of Education and the New
Jersey State Board of Education,
tate House Annex,
‘Trenton, New Jersey 08625.
ERMINIE L. CONLEY,
Assistant Attorney General,
Of Counsel.
MARK SCHORR,
D Attorney General,
n the Petition.
Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611
TABLE OF CONTENTS
Opinions BELOw ....
J URISDICTION ee ay ee ee
I TO a sscennceanencoensce
STATEMENT OF THE CASE ............--- oh ee oe
Reasons For GRANTING THE Writ—Implicating the
maintenance of a proper balance between federal
and state jurisdictions, the issues presented are sub-
stantial and far-ranging and involve as well a con-
flict with decisions of this and other federal appel-
late courts and therefore in the interest of the
effective administration of justice require this
Nee cecsccicnntudeeneoseewsbocccs
A—Certiorari should be granted to resolve whether
the non-intervention doctrine of Younger v. Harris
applies where a prior state suit instituted by fed-
eral plaintiffs involves an issue of deep state con-
cern and where both the parties and the state court
have invested considerable time in the case ................
B—Certiorari should be granted because the court
below construed the holding of England v. Louisi-
ana Bd. of Medical Examiners in a manner not war-
ranted by any holding of this Court and because
such interpretation is at cross purposes with Eng-
EL EEE TTL
PAGE
ii TABLE OF CONTENTS
C—The holding of the court below that a state court
judgment on a cause of action is not res judicata of
federal claims not raised in that action is contrary
: to settled principles of constitutional adjudication
and creates a conflict among the circuit courts which
can only be resolved by an authoritative ruling of
this Court
ConcLUSION
Appendiz:
A—Opinion of the United States Court of Ap-
peals for the Third Circuit of May 3, 1978 ....
B—Opinion Amplifying Oral Opinion of the
United States District Court for the District
of New Jersey of April 22, 1977
C—Order of the Superior Court of New J ersey,
Appellate Division of October 15, 1976, Deny-
ing Stay
D—Order of the Superior Court of New J ersey,
Appellate Division of November 17, 1976, De-
nying Stay
E—Order of the Superior Court of New J ersey,
Appellate Division of April 25, 1977, Grant-
ing Stay
F—Opinion of the Superior Court of New J ersey,
Appellate Division of July 12, 1977 ...........
G—Order of the Supreme Court of New J ersey
of July 20, 1977, Denying Petition for Certi-
fication
PAGE
18
21
la
3la
37a
39a
4la
47a
TABLE OF CONTENTS iii
PAGE
Cases Cited
Ahrensfeld v. Stephens, 528 F.2d 193 (7th Cir. 1975) 10
Angel v. Bullington, 330 U.S. 183 (1947) .......-------------- 18
Atlantic Coast Line R.R. v. Brotherhood of Locomo-
tive Engineers, 398 U.S. 281 (1970) ....... ant 19
Coogan v. Cincinnati Bar Ass’n, 431 F.2d 1209 (6th
Cav BGTO) icine scctirrieens 18
Cornwell v. Ferguson, 545 F.2d 1022 (5th Cir. 1977) 18
Del Rio v. Kavanaugh, 441 F. Supp. 220 (E.D. Mich.
VOUT xcs gpecics inns ciinecescceseconensnncesinioniierntinonsennensinsinahsantnvetaantas 10
gr y isi State Bd. of Medical Exam-
eens, 875 US. 4il ( i) cles ied edie 9,7, 14-17, 19
Fisher v. Civil Serv. Comm’n, 484 F.2d 1099 (Sth Cir. A
I easiest comseremienn enseceenetscnnincinen
Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) .......-..---- 9,13
Ingraham v. Wright, 430 U.S. 651 (1977) ....-.--------------- 12
Juidice v. Vail, 430 U.S. 327 (1977) .......-....----+-+--- 9, 10, 13, 20
Kurek v. Pleasure Driveway & Park Dist., 557 F.2d
580 (7th Cir. 1977), vacated & remanded on other
grounds 435 U.S. , 98 S. Ct. 1642 (1978) ............ 19
Lecci v. Cahn, 493 F.2d 826 (2d Cir. 1974) . 17
Lombard v. Board of Edue., 502 F.2d 631 (2d Cir.
1974), cert. den. 420 U.S. 976 (1975) ........ 19
Louisville Area Inter-Faith Comm. v. Nottingham
Liquors, Ltd., 542 F.2d 652 (6th Cir. 1976) -..............- 10
Lovely v. Laliberte, 498 F.2d 1261 (1st Cir.), cert. den.
419 U.S. 1088 (1974) .............-- 18
iv TABLE OF CONTENTS
PAGE
Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973), cert.
den. 415 U.S. 593 (1974) 10
Merrick v. Merrick, 441 F. Supp. 143 (S.D.N.Y. 1977) 10
Orlando v. Wizel, 443 F.Supp. 244 (W.D. Ark. 1978) 10
Railroad Comm’n v. Pullman Co., 312 U.S. 496
(1941) 4, 7, 14,16
Rankin v. State of Florida, 418 F.2d 482 (5th Cir.
1969), cert. den. 397 U.S. 1039 (1970) 17
Red Fox v. Red Fox, 564 F.2d 361 (9th Cir. 1977) ...... 18
Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273 (1973),
cert. den. 414 U.S. 1974 (1971) 11
Roy v. Jones, 484 F.2d 96 (3d Cir. 1973) .. 19
Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974) 18
Spence v. Latting, 512 F.2d 93 (10th Cir. 1975), cert.
den. 423 U.S. 896 (1976) .... 18
Stone v. Powell, 428 U.S. 465 (1976) 12
Trainor v. Hernandez, 431 U.S. 434 (1977) ................ 9, 12, 13
United States v. O’Malley, 383 U.S. 627 (1966) ............ 21
Will v. Calvert Fire Ins. Co.. —— U.S. ——, 46 U.S.
L.W. 4811 (decided June 23, 1978) 13
Younger v. Harris, 401 U.S. 37 (1971) 2, 4-14, 20
New Jersey Constitution Cited
Art. VIII, See. IV, Para. 1 (1947) 11
TABLE OF CONTENTS
PAGE
Statutes Cited
N.J.S.A. 18A.27A-5(g) ----n-s-sncesceccseseesesesesessesnsensmensenensncnsents 11
28 U.S.C.: 5
See. 1254(1) -...--.------cececcececseseeees ae Ut ar
42 U.S.C.:
Bee, 1983 ...n.-n..-n-c-cecscscececeeceescsscnsesnenensensecoeeesenenenenens 3, 4, 8, 18
Rule Cited
21
Bittle 190) ...--.---------sonsenseecsenseneonssensenssensencsnnsensennscassnsenasensee
N.J. A.C. 6211-B.8 -2...----c-neecececeenseeseseenenssnees
N.J.A.C. 6:11-8.9_ ........---
IN THE
Suprene Court of the United States
Octosper TERM, 1978
No.
>.
> a
FRED G. BURKE, Commissioner of Education of the State of New Jersey,
as Commissioner and Individually; RUTH H. MANCUSO, President of
the New Jersey State Board of Education, as President and Individually ;
and the NEW JERSEY STATE BOARD OF EDUCATION,
Petitioners,
NEW JERSEY EDUCATION ASSOCIATION; PATERSON EDUCA-
TION ASSOCIATION; CAMDEN EDUCATION ASSOCIATION ;
EDUCATION ASSOCIATION OF PASSAIC; NEWARK TEACH-
ERS ASSOCIATION; WEST NEW YORK EDUCATION ASSOCI-
ATION; UNION CITY EDUCATION ASSOCIATION, New Jersey
Corporations; JOSE YI; and MANNY DePARA,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
Petitioners pray that a writ of certiorari issue to re-
view the judgment and opinion of the United States
Court of Appeals for the Third Cireuit entered in this
proceeding on May 3, 1978.
2
Opinions Below
Pig Sigrid the United States Court of Appeals for
ag ( is appended to this petition as A
wk oA - as yet unreported. The United States Dis.
ourt for the District of New Jersey issued an un-
reported letter opinion. It appears as Appendix B to this
petition.
Jurisdiction
The judgment and o
filed on May
judgment of the Court of A
of certiorari.
Questions Presented
x. 1. Is this Court’s non-interference
i fa neon v. Harris limited to ee ae
— WR pe proceedings and thus not applicable
ge hs pending a prior state proceeding involving
pp ng: 1es as the federal suit and where the subject
is a matter of state concern and both ‘the
parties and the state i
tee ates court have invested considerable
“ ae cy eeois decision in England v. Louisiana
a se rid a Examiners preclude a federal liti-
igieaptas 4 out reservation litigated federal claims
a re _and then failed to seek review of the
ee sion in this Court from relitigating tho
ederal district court .
the same parties as the state suit? ee Te
pinion of the Court of A ]
3, 1978. The jurisdicti ge seliongi
therefore inveked under 28 U.S.C. por tie satel “
a
ppeals by issuance of a writ
3
8 Is a state court judgment on the merits of federal
constitutional questions res judicata of federal issues in
a subsequent federal suit under 42 U.S.C. §1983, which
issues were not, but could have been, raised in the state
proceeding?
Statement of the Case
The jurisdiction of the district court was invoked be-
cause a question arose under the Civil Rights Act of 1871,
42 U.S.C. §1983.
This ease arises out of two actions brought on behalf
of approximately 900 teachers of bilingual and bicultural
education and English as a Second Language employed
by some 30 local school districts throughout the State of
New Jersey. They are respondents here. Both were chal-
lenges brought on a variety of grounds to regulations of
the New Jersey State Board of Edueation governing the
certification of bilingual and bicultural teachers and
teachers of English as a Second Language. N.J.A.C. 6:11-
8.8, -8.9. The state and its educational officials, petitioners
here, were defendants in both suits.
One of the suits was commenced on October 14, 1976
in the Appellate Division of the Superior Court of New
Jersey. It attacked the aforementioned regulations on a
number of federal constitutional grounds and as violative
of New Jersey law. During the pendency of that suit,
respondents three times sought an ad interim stay of the
challenged regulations. The first application was denied
by one judge of the Appellate Division by order dated
October 13, 1976 (App. C). The second was denied with-
out prejudice by three judges by order dated November
13, 1976 (App. D). Finally, by order dated April 25,
1977, the court granted respondents’ third application for
a stay (App. E).
4
In a decision on the merits dated July 12, 1977, the
state court rejected respondents’ claims, finding the regu-
lations proper in all respects, and dissolved the stay
(App. F). The Supreme Court of New Jersey denied re-
spondents’ petition for certification (App. G), and re-
spondents made no attempt to seek review in this Court.
During the pendency of the state court action, on No-
vember 22, 1976, respondents filed suit in the United
States District Court for the District of New Jersey
challenging the regulations on a number of federal con-
stitutional grounds under 42 U.S.C. §1983.* On_ peti-
tioners’ motion that action was dismissed. In an unre-
ported letter opinion of April 22, 1977, the court exer-
cised its discretion to abstain under Railroad Comm’n v.
Pullman Co., 312 U.S. 496 (1941), on the basis that reso-
lution of state law issues raised in the state suit might
make decision by the federal court on respondents’ constitu-
tional claims unnecessary (App. B at 32a). The district
court also noted that the action was one seeking an in-
junction against the implementation of state regulations
pending a decision on their validity. And since that
specific relief had already been denied by the state court,
respondents were in effect asking for a reversal of that
court’s determination. To grant such relief, said the court,
would run counter to the principles of comity, equity and
federalism and the teaching of Younger v. Harris, 401
U.S. 37 (1971), which counsels non-interference with state
judicial functions (App. B at 33a to 34a).
* Raised and decided in the state action were respondents’ allega-
tions that the regulations were violative of the equal protection and
due process clauses. In the federal suit, respondents raised those is-
sues as well as contentions involving ex post facto violations, im-
pairment of the obligations of contract, and uncompensated taking
of private property.
On appeal, the United States Court of Appeals for the
Third Cireuit reversed the determination of the district
court and remanded the cause. It held that Younger would
not apply to a situation where the only pending proceed-
ing was a civil suit filed by a federal plaintiff in state
court (App. A at 7a). The court further expressed its
belief that the Younger doctrine did not encompass a
ease where a federal plaintiff sought interference with
neither a state criminal proceeding nor an attempt by a
state to enforce its laws in its own forum (App. A at lla).
As to the res judicata effect of the state court judgment,
the court held that it precluded federal consideration of
only those issues actually raised in the state proceeding
and -that issues that could have been presented in the
state forum, but were not, could be heard by the district
court (App. A at 25a). Finally, after acknowledging
that respondents had exposed some of their federal claims
for consideration by the state court without informing
the state court that they wished to reserve those claims
for the federal forum, the court directed that the district
court decide whether the federal claims raised in the
state court were fully and freely litigated there (App. A
at 29a to 30a).
6
REASONS FOR GRANTING THE WRIT
Implicating the maintenance of a proper balance
between federal and state jurisdictions, the issues
presented are substantial and far-ranging and involve
as well a conflict with decisions of this and other
federal appellate courts and therefore in the interest
of the effective administration of justice require this
Court’s guidance.
The petition presents several questions of substantial
importance and far-reaching effect involving a federal
court’s dismissal of a suit before it where the court defers
to state proceedings instituted before the federal action
is begun. The issues raised have not until now been con-
sidered by the Court and implicate considerations im-
portant to any federal litigant. But more importantly,
resolution of these questions is vital to the proper ad-
ministration of a dual federal-state judicial system, par-
ticularly in light of the always increasing caseloads in the
federal courts and the need, so often acknowledged by
the Court, to limit duplicative and wasteful litigation.
The first question raised is whether the non-interven-
tion doctrine of Younger v. Harris, 401 U.S. 37 (1971), is
applicable in a civil proceeding involving issues of pri-
mary importance to the state where the prior pending
state proceeding involves the same parties and issues as
the federal action and where the state court and the liti-
gants have already invested considerable time and energy
in the suit. The issue is of great concern not only to
the litigants, but also to the courts and the public. The
type of tension between federal and state jurisdiction
which a federal court seeks to avoid by exercising re-
straint under Younger has been the subject of a great
volume of recent litigation as courts have begun to apply
its principles to a broad range of state and private inter-
ests. The need to ease this tension is especially urgent
given the increasing congestion on the federal and state
dockets with not an insignificant amount of that conges-
tion caused by duplicative litigation such as that in-
volved in this suit. The most recent pronouncements of
this Court indicate clearly its intent to expand the
Younger doctrine to encompass precisely the type of case
presented here. In stark contrast to those pronouncements
and to the unmistakable trend in lower federal courts,
the holding of the court below essentially limits Younger
to criminal or quasi-criminal proceedings. While such a
decision might have been plausible when Younger was
first decided, it is unsupportable now that this Court has
sanctioned application of its principles to at least some
purely civil proceedings. The issue then is one on which
the litigants, the public, and both federal and state courts
are in need of guidance.
This appeal also projects the issue of whether a party
must make an affirmative reservation of rights to return
to the federal forum once he has been remitted to a state
court by a federal court abstaining under Radroad
Comm’n v. Pullman Co., 312 U.S. 496 (1941). The court
below held that no such reservation is necessary, that
holding representing a clear departure from the pro-
cedure outlined in England vy. Louisiana State Bd. of Medt-
cal Examiners, 375 U.S. 411 (1964). Furthermore, it is
contrary to the interpretations placed on England by vir-
tually every other federal court which has construed it
and finds no support in other decisions of the Court. The
decision below then undercuts the beneficial purposes of
England. It will subject litigants to unnecessary federal
adjudication of issues seemingly settled in state courts.
And it will compel federal courts to squander their valu-
able time and energy in relitigation of suits already con-
cluded on their merits before state tribunals.
8
Finally, this petition raises the issue of whether a state
court judgment is res judicata of federal claims not con-
sidered by the state tribunal and raised in a subsequent
federal suit under 42 U.S.C. §1983 on the same cause of
action. The issue is a clear cause of conflict among the
circuits, the holding of the court below in the instant case
adopting the minority position. It is worthy of considera-
tion by the Court not only because of this conflict and
because the area is one in which uniformity is required,
but also because the holding of which review is sought
practically encourages a litigant who would in any case
be inclined to file multiple suits to split a cause of action
over two jurisdictions in hope of obtaining the desired
result in one. Such piecemeal adjudication is, of course,
the very circumstance the policies underlying the res judi
cata doctrine are meant to avoid. Only an authoritative
ruling by this Court can settle this much-litigated issue.
A
Certiorari should be granted to resolve whether the
non-intervention doctrine of Younger v. Harris applies
where a prior state suit instituted by federal plaintiffs
involves an issue of deep state concern and where
both the parties and the state court have invested
considerable time in the case.
Non-intervention under Younger v. Harris, swpra has
its origins in the principles of comity, equity and federal-
ism, which counsel that federal courts maintain a proper
respect for state functions and recognize that this coun-
try is made up of state governments and that the federal
government will function best when the states are left to
discharge their own responsibilities in their own way.
401 U.S. at 44. Younger then represents an accommoda-
tion designed to insure the smooth functioning of both
state and federal governments, an accommodation that is
becoming more important, and at the same time more
difficult, to maintain with the current expansion of fed-
eral dockets.
Although the Younger doctrine was announced in the
context of an attempt by a defendant in a state prose-
cution to have a federal court enjoin that prosecution, its
reach has been extended considerably and Yownger prin-
ciples have been applied by this Court to civil actions in
three cases. Trainor v. Hernandez, 431 U.S. 434 (1977);
Juidice v. Vail, 430 U.S. 327 (1977); Huffman v. Pursue,
Ltd., 420 U.S. 592 (1975). In all three, the Court re-
served decision on whether these principles were appli-
eable to all civil litigation. 431 U.S. at 444-45 n.8, 430 at
336 n.13; 420 U.S. at 607.
In any case, it is safe to say that the law in the area
is in a state of transition. For although the Younger doc-
trine has been invoked by the Court in civil litigation in
eases involving some sort of enforcement by a state or
its courts, the Court has at the same time broadly sug-
gested that its application may be proper whenever a
state court has become involved in a private action and
one of the parties to the suit seeks to raise in a federal
forum an issue he had raised or could have raised in the
ongoing state proceeding. See Juidice v. Vail, supra; Huff-
man v. Pursue, Ltd., supra. In Huffman, the Court de-
clared it would not permit a party “the luxury of federal
litigation of issues presented by ongoing state proceed-
ings, a luxury which . . . is quite costly to the interests
Younger seeks to protect.” 420 U.S. at 606-7. And in
Juidice, it held that Younger erected a barrier to a fed-
eral civil rights challenge to New York’s statutory con-
tempt procedures by individuals subject to and ultimately
10
jailed under such procedures. In doing so, the Court
found as a sufficient ground for invoking Younger that
plaintiffs in the §1983 action “had an opportunity to pre-
sent their federal claims in the state proceeding.” 430
U.S. at 335 (emphasis original).
Thus, it is wholly consistent with the underpinnings of
Younger for a court to apply the doctrine to a case which
involves, as does the instant one, a subject of especial
concern to the state or where, as here, the parties had
an opportunity to present their federal claims in a prior
state proceeding. In Juidice, a case which arose out of a
state action between private parties, the Court indi-
cated unequivocally that what matters in Younger non-
intervention is not so much the character of the state
proceedings—+.e., whether they are civil, criminal, or
quasi-criminal—but rather that the subject matter of the
suit is one in which the state has an interest and that the
notion of comity is thereby implicated. 430 U.S. at 334.
Accordingly, lower federal courts have foun] equitable
restraint under Younger and its more recent progeny war-
ranted in a wide variety of cases—some of which involve
the state, some of which do not—that are wholly uncon-
nected with the criminal or quasi-criminal process. See
e.g., Lowsville Area Inter-Faith Comm. v. Nottingham
Inquors, Ltd., 542 F.2d 652 (6th Cir. 1976) (labor dis-
pute); Ahrensfeld v. Stephens, 528 F.2d 193 (7th Cir.
1975) (eminent domain); Lynch v. Snepp, 472 F.2d 769
(4th Cir. 1973), cert. den. 415 U.S. 593 (1974) (access to
public schools); Orlando v. Wizel, 443 F.Supp. 244 (W.D.
Ark. 1978) (guardianship proceedings); Del Rio v. Kava-
naugh, 441 F. Supp. 220 (E.D. Mich. 1977) (disciplinary
proceedings against former judge); Merrick v. Merrick,
441 F. Supp. 143 (S.D.N.Y. 1977) (domestic relations).
11
That the state has a profound interest in the subject
matter of this suit is unassailable. By constitution, New
Jersey guarantees to its school age children a “thorough
and efficient” system of free public schools. N.J. Const.
(1947), Art. VIII, §IV, 1. And the state’s highest court
has declared this guarantee preeminent among those in the
state constitution. See Robinson v. Cahill, 62 N.J. 473,
303 A.2d 273 (1973), cert. den. 414 U.S. 986 (1971). The
adoption of licensure standards to ensure the competence
of those who teach in the state’s public schools, the sub-
ject of this action, is a major component of that constitu-
tional promise. N.J.S.A. 18A:7A-5(g).
The state was also deeply interested in this case, and
remains so, because its courts have invested considerable
time and energy in the matter. At the time of the fed-
eral court’s dismissal, the case had been pending in the
state court for some six months. The state tribunal had
twice considered—and rejected—applications by respond-
ents for a stay and the case was practically ready for dispo-
sition on the merits. Indeed, by the time the Third Circuit
rendered its ruling, New Jersey’s highest court had re-
fused to review the lower court judgment on the merits
and the time within which respondents could have sought
review in this Court had run out. Non-intervention by the
district court in this context was therefore not only consist-
ent with Younger, but necessary to give the doctrine its
full beneficial effect. It would have avoided—and in fact
did avoid—the risk of interference with, and embarrass-
ment of, a state court. Indeed, because respondents sought
in the federal court relief that had previously been de-
nied them by the state tribunal (a preliminary injunction
against the enforcement of the regulations), it is difficult
to imagine how more potential for conflict could have
been present. On the other hand, precluding the appli-
cation of the doctrine in these circumstances serves only
12
to encourage duplicative litigation and to reflect nega-
tively on the ability of a state court to adjudicate fed-
eral claims. Trainor v. Hernandez, swpra at 446.
This last factor is significant and impacts upon the con-
fidence of litigants, as well as that of the public, in state
court proceedings. The at least implicit doubt running
through the opinion below as to a state court’s ability
to deal with federal constitutional issues runs sharply
counter to recent pronouncements by the Court on the
subject. The Court has been more frequently remitting
parties to their state remedies and in doing so has relied
expressly upon the availability and adequacy of those
remedies. See, e.g., Ingraham v. Wright, 430 U.S. 651
(1977); Stone v. Powell, 428 U.S. 465 (1976). In Stone
particularly, it was suggested that actions of federal
courts should be undertaken, and federal remedies
fashioned, with due regard for relief available in state
courts:
“. . . Despite differences in institutional environ-
ment and the unsympathetic attitude to federai
constitutional claims of some state judges in years
past, we are unwilling to assume that there now
exists a general lack of appropriate sensitivity to
constitutional rights in the trial and appellate
courts of the several states.” 428 U.S. at 494 n. 35.
In sum, no prior decisions of the Court even suggest
that the principles of Younger are limited, as the court
below held they should be, to criminal prosecutions and
enforcement actions by states in their own courts. The
interests Younger seeks to protect extend much further
than that. They encompass, as noted above, the avoid-
ance of federal-state tension in areas of interest to states
and the needless embarrassment to states that results from
13
a federal decree clashing with one entered by a state
court.
In this connection, it should also be noted that the is-
sues raised in this case bear heavily upon concerns re-
cently expressed by the Court in Will v. Calvert Fire Ins.
Co., U.S. ——, 46 U.S.L.W. 4811 (decided June 23,
1978). In Will, a defendant to an action brought in an
Illinois court who had raised Rule 10(b) (5), promulgated
under the Securities Act of 1934, as a defense to such
action brought a later federal complaint under Rule 10(b)
(5) seeking damages. The district judge to whom the fed-
eral case was assigned stayed the action, deferring to the
state court. The Court found that deferral proper, cit-
ing as sufficient reason therefor the avoidance of “dupli-
active litigation and the concomitant tension between state
and federal courts.” 46 U.S.L.W. at 4813. These inter-
ests, analogous to the ones underlying Younger non-inter-
vention, were served as well by a dismissal of the com-
plaint in the instant case. And what the Court said in
Will applies to this case inasmuch as the disposition by
the Third Cireuit promotes wholesale duplication of judi-
cial effort and an unseemly race to res judicata.
These factors and the others set out above are all un-
deniably at work here. All were given short shrift by the
court below. This petition then provides the Court with
an opportunity to answer questions clearly contemplated
by Trainor, Juidice and Huffman. It also provides an
opportunity for the Court to give guidance to lower
courts in this area of federal-state relations, in which
there is an ever-increasing number of judicial pronounce-
ments as courts have assessed the applicability of Younger
to a wide variety of civil matters. Indeed, this case pro-
vides a particularly compelling context for such guid-
ance. At once it involves areas of undeniable state inter-
14
est and satisfies the principal predicate for invocation of
the doctrine—the pendency of prior state proceedings.
And the state suit was one instituted by respondents them-
selves and grounded on the very same constitutional
claims as were raised in the federal action. Rather than
abandoning their claims in the state forum, respondents
vigorously pursued them to judgment. So unlike their
counterparts in Younger and the more recent cases ex-
tending its reach, respondents voluntarily entered the
state court and were never sent away to litigate in a
forum not of their own choosing.
A writ of certiorari should therefore issue to consider
these important questions, to allow the Court to clarify
its recent pronouncements under Younger, and to pro-
vide guidance to lower federal courts which are more and
more confronted with the task of attempting to ease fed-
eral-state tension and clear their busy dockets for suits
that will not be litigated elsewhere.
Certiorari should be granted because the court
below construed the holding of England v. Louisiana
Bd. of Medical Examiners in a manner not warranted
by any holding of this Court and because such inter-
pretation is at cross purposes with England.
The proper course of action for litigants who are, as
were respondents, remitted to a state forum by a federal
court abstaining under Railroad Comm’n v. Pullman Co.,
312 U.S. 496 (1941), and who wish to have their federal
issues considered by the federal court is clearly set out
in England v. Louistana Bd. of Medical Examiners, 375
US. 411 (1964). Plaintiffs in England initially filed suit
15
in federal district court seeking injunctive relief against
a certain Louisiana regulatory statute and a declaration
of its constitutionality. The district court abstained, be-
lieving that an authoritative ruling on state law might
end the controversy. Plaintiffs did not restrict the state
proceedings to a review of state issues. They also raised
their federal claims in that forum. Returning later to the
federal court, they were met with a motion to dismiss.
Since the state tribunal had passed on all of the issues,
the federal court granted the motion.
This Court said that such a record would normally
warrant affirmance. It reversed only because the primary
reason for plaintiffs’ having litigated their federal claims
in state court was the district court’s mistaken belief
that they had to do so. The Court in England made clear,
however, that once a litigant has exposed his federal
claims to decision by a state court, he is foreclosed from
returning to the federal forum with them:
“.. We now explicitly hold that if a party freely
and without reservation submits his federal claims
for decision by the state courts, litigates them
there, then—whether or not he seeks direct review
of the state decision in this court—he has elected
to forego his right to return to the District Court.”
375 U.S. at 419.
The record in the instant case demonstrates that re-
spondents unequivocally and without reservation litigated
their federal claims in the courts of New Jersey. Those
courts were never informed that there was a pending
federal suit challenging the same regulations, let alone
that respondents wished to reserve their constitutional
issues for disposition by a federal court. Respondents pro-
ceeded in that manner notwithstanding that they had be-
16
fore them the plain teaching of England as a guide for
ensuring a subsequent federal hearing.
With that factual complex before it and with its ex-
plicit recognition that respondents had in fact fully liti-
gated without reservation some of their federal claims in
the state suit (App. A at 29a n.57), the court below never-
theless remanded the matter for a factual determination as
to whether those issues were “fully and freely litigated
in the state courts.” (App. A at 30a). By concentrat-
ing its attention on this factor and ignoring its own
finding that no reservation had been made, the court
has significantly changed the test set out in England and
greatly undercut the purposes it was meant to serve:
decreasing the cost and length of litigation and eliminat-
ing a potential source of friction between state and fed-
eral courts. 375 U.S. at 419. For this holding creates a
new type of hearing to determine compliance with Eng-
land and results in a corresponding deemphasis on the
significance of an affirmative reservation of rights before
a state court. And all of this is especially dangerous to
the beneficial purposes of England in view of the in-
creasing tendency of parties to file suit on the same cause
of action in more than one jurisdiction.
Furthermore, this holding represents a significant de-
parture from the procedure virtually commanded in Eng-
land, which departure finds no support in decisions of
this Court and is at odds with the interpretations given
England by virtually every other lower federal court which
has considered cases in procedural postures virtually iden-
tical to that here. Those courts have uniformly held that
when a plaintiff is sent to a state court under Pullman
and elects to expose his federal claims to judgment there,
his election is irreversible and he cannot return to a fed-
eral court unless he has placed an explicit reservation of
17
rights in the state court record. See, e.g., Lecct v. Cahn,
493 F.2d 826, 829 (2d Cir. 1974); Fisher v. Cwil Serv.
Comm'n, 484 F.2d 1099, 1101 (8th Cir. 1973); Rankm v.
State of Florida, 418 F.2d 482, 485-86 (5th Cir. 1969), cert.
den. 397 U.S. 1039 (1970).
This unprecedented holding can only be termed a dis-
tortion of both the letter and spirit of England and a
disservice to its purposes. It will most certainly result
in unnecessary litigation and unfairly subject parties to
needless federal relitigation of issues seemingly settled
by state adjudications. With that, there will of course be
a corresponding increase of federal-state tension, the very
circumstance the Court in England said it wished to
avoid. The decision below therefore raises important
issues. It also involves a direct conflict with England, a
conflict which will have an obviously adverse impact on
many cases already pending. A writ of certiorari should
issue so that the Court can consider the question and re-
solve the apparent conflict between the decision of the
Third Cireuit and the explicit instructions set forth in,
if not the holding of, England.
PRED mn = yet Gorn me Rae OER PH AE LA
<a
18
Cc
The holding of the court below that a state court
judgment on a cause of action is not res judicata of
federal claims not raised in that action is contrary to
settled principles of constitutional adjudication and
creates a conflict among the circuit courts which can
only be resolved by an authoritative ruling of this
Court.
The usual rule governing the res judicata effect of
repetitious suits involving the same cause of action is
that when a court of competent jurisdiction enters a final
Judgment on the merits, the parties are bound by that
ruling not only as to matters actually litigated in the
suit but also as to matters which could have been liti-
gated. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573,
978-79 (1974). This Court has found that rule applicable
even where federal issues have been adjudicated by state
courts. Angel v. Bullington, 330 U.S. 183, 186-87 (1947).
Nowithstanding such clear pronouncements, there exists
a deep division among the circuits as to whether a state
court judgment has a preclusive effect on a subsequent
federal suit under 42 U.S.C. $1983 based on the same
cause of action. Most circuits, adhering to established
res judicata principles, hold that a state judgment on the
merits precludes not only the assertion of claims it has
resolved, but also legal theories that might have been
raised. See Red Fox v. Red Fox, 564 F.2d 361, 363 (9th
Cir. 1977); Cornwell v. Ferguson, 545 F.2d 1022, 1026
(Sth Cir. 1977); Spence v. Latting, 512 F.2d 93, 99 (10th
Cir. 1975), cert. den. 423 U.S. 896 (1976); Lovely v. Lali-
berte, 498 F.2d 1261, 1264 (1st Cir.), cert. den. 419 U.S.
1038 (1974); Coogan v. Cincinnati Bar Ass’n, 431 F.2d
1209, 1211 (6th Cir. 1970). With its decision in this case,
19
the Third Circuit has lined up with the two others which
have held that a state court judgment bars a litigant
from pressing a §1983 action only on grounds raised
before, and then decided by, the state court.* Kurek v.
Pleasure Driveway & Park Dist., 557 F.2d 580, 594-95
(7th Cir. 1977), vacated & remanded on other grounds
435 U.S. ——, 98 S. Ct. 1642 (1978); Lombard v. Board
of Educ., 502 F.2d 631, 635-37 (2d Cir. 1974), cert. den.
420 U.S. 976 (1975).
This is a conflict which cannot be ignored. Plainly, it
involves an issue on which uniformity throughout the
federal system is necessary not only because of the num-
ber of cases affected but because litigants, and the courts
as well, must know which, if any, national constitutional
and statutory rights may be asserted in a federal civil
rights suit after a state judgment on the same cause of
action has been entered.
While the court below suggested that no harm results
from the course it followed and that to hold otherwise
would discourage litigants from venturing into state
courts to exhaust their remedies there for fear of for-
feiting their right to a federal hearing, it failed to recog-
nize that any complainant who wishes federal factfinding
on federal issues has only to follow well-established pro-
cedures in order to restrict the state court to considera-
tion of state issues. Atlantic Coast Line R.R. v. Brother-
hood of Locomotive Engineers, 398 U.S. 281, 295 (1970) ;
see England v. Louisiana State Bd. of Medical Examiners,
supra. On the other hand, there is no answer to the rea-
sons which support the holdings of courts which do not
* The court below did acknowledge that its holding was inconsis-
tent with dictum in another Third Circuit opinion. See Roy v.
Jones, 484 F.2d 96, 100-01 (3d Cir. 1973).
PRL» 50>
20
allow a party to relitigate federal claims he has raised,
or has had an opportunity to raise, elsewhere. Briefly
stated, they are the policies which underlie the res judi-
cata doctrine—prevention of repetitious and vexatious
litigation by encouraging a party to present all federal
claims in one proceeding.
Moreover, a decision such as that rendered below actu-
ally encourages piecemeal adjudication and duplicative
litigation of what may be a wholly federal controversy
as litigants attempt to split a suit over two courts in
hope of obtaining a favorable result from one. At the
same time, federal courts will undoubtedly be confronted
with prickly problems as to whether the federal issues
were actually raised before, and then decided by, a state
court.
And this is not a case where respondents were forced
to litigate constitutional claims in a state court against
their will. As already noted, their faith to the federal
forum was never constant. Respondents freely entered
the state court first, exposed their federal claims to judg-
ment there, and never expressed to that court that they
intended to do otherwise.
It should also be noted again that the demands of
Younger, if not those of res judicata, are satisfied where
parties are “accorded only an opportunity to pursue their
constitutional claims in the ongoing state proceedings, . . .
and their failure to avail themselves of such opportunities
does not mean that the state procedures were inadequate.”
Juidice v. Vail, supra at 337 (citation omitted).
This aspect of the opinion below then seeks to avoid
principles of res judicata settled long ago by this Court
and others and in so doing to allow a litigant to split
a federal controversy over two jurisdictions in the hope
21
of prevailing in one. The writ should issue to review
that conclusion alone. But where, as here, there exists a
clear conflict among the circuits on an issue of obvious
significance, there can be no question but that certiorari
should be granted. Rule 19(b); see United States v.
O’Malley, 383 U.S. 627, 630 (1966). Finally, the issue 1s
one often litigated and therefore of interest to anyone
contemplating the assertion of a claim under the Civil
Rights Act.
CONCLUSION
For the foregoing reasons, it is respectfully sub-
mitted that this petition for a writ of certiorari to the
United States Court of Appeals for the Third Circuit
should be granted.
Respectfully submitted,
JoHN J. DeGnan
Attorney General of New Jersey
Attorney for Petitioners, Fred
G. Burke, Commissioner of Edu-
cation of the State of New Jer-
sey; Ruth H. Mancuso, President
of the New Jersey State Board
of Eduction; and the New Jersey
State Board of Education
[AppeNnpIces Fotitow]
ote
APPENDIX A
Opinion of the United States Court of Appeals
for the Third Circuit
UNITED STATES COURT OF APPEALS
For tHE Tuirp Circuit
No. 77-1828
+
New Jersry Epucation Association; Paterson Epucation
Association; Campen Epvucation Association; Epuca-
TION ASSOCIATION OF Passtac; Newark TEACHERS ASSO-
cIATION; West New York Epvucation ASSOCIATION;
Union Crry Epucation Association, New Jersey Cor-
porations; Jose Yi; and Manny DePara,
Appellants,
v.
Frep G. Burke, Commissioner of Education, as Commis-
sioner and Individually, Rura H. Mancuso, President
of the New Jersey State Board of Education, as Presi-
dent and Individually; and the New Jersey State
Boarp oF EpucaTIon
On ApprpeEAL From THE Unitrep States Districr Court
FOR THE District oF NEW JERSEY
C.A. No. 76-2230
=
4
[la]
2a
Appendix A
Argued February 24, 1978
Before: Apams and HiccrnsotHam, Circuit Judges,
and Becutiez, District Judge.*
WituuM S. GREENBERG
Greenberg & Mellk
Trenton, New Jersey 08608
Attorneys for Appellants
Wituam F. Hyzanp
Attorney General of New Jersey
Trenton, New Jersey 08625
ERMINIE ConLEY
Deputy Attorney General
Of Counsel
Mark ScHorr
Deputy Attorney General
On the Brief
Attorneys for Appellees
OPINION OF THE CouRT
(Filed—May 3, 1978)
Apams, Circuit Judge
Legal precepts tend to expand, inexorably and some-
times imperceptibly. This is so, at least in part, because
a broadly-formulated legal principle is by its very nature
be Louis C. Bechtle, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
3a
Appendix A
applicable to a wide range of situations. In any particu-
lar 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 de-
cide in accordance with the suggested rule. But as a doc-
trine 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 off-setting policies not present in the original
application.
The abstention doctrine of Younger v. Harris has un-
dergone such an expansion in recent years, as its equi-
table 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 under-
girding Younger are sufficiently applicable to warrant
further extension of the rule.
A. Tue Facts
On September 15, 1976, the New Jersey State Board
of Education amended regulations governing the qualifica-
tions of teachers in bilingual/bicultural education pro-
grams 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 statu-
tory 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.
4a
Appendia A
Upon being assured that no teacher would be termi-
nated 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 Novem-
ber 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,!
on a number of constitutional grounds, and requested in-
junctive 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?
interdicted injunctive relief, despite the teachers’ offer to
dismiss their state court action.’ An appeal from that
dismissal was timely filed.
1 The complaint alleged violations of the equal protection and due
process clause as well as ex post facto violations, impairment of the
obligations of contact, and uncompensated taking of private property.
2401 U.S. 37 (1971).
$ Judge Barlow also concluded that it was appropriate for him to
abstain from deciding this case under the doctrine of Railroad
Commn. of Texas v. Pullman Co., 312 U.S. 496 (1941). Since
questions were raised as to the proper effect to be given to the chal-
lenged regulation (e.g. availability of waivers) and the propriety of
the regulation on state law grounds, it would seem that Pullman ab-
stention was not inappropriate as a means of avoiding unnecessary
decision of constitutional issues. However, Pullman does not au-
thorize dismissal. See American Trial Lawyers v. New Jersey Su-
preme Court, 409 U.S. 467 (1973) (trial court’s dismissal on Pull-
man grounds reversed ; Supreme Court held that “proper course” is
to retain jurisdiction). In any event, since a final adjudication of
the propriety of the regulations on state law grounds has occurred,
the strictures of Pullman have been fulfilled.
5a
Appendia A
In the interval between Judge Barlow’s order and the
oral argument before us, there were several relevant de-
velopments in the state courts. Thus, on April 29, 1977,
the New Jersey Superior Court granted a stay against the
operation of the challenged regulation. However, on J uly
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 presump-
tion,” disfavored in law . . . we observe that the
result in Berger v. Board of Psychologist Exam-
iners, 521 F.2d 1056 (D.C. Cir. 1975) would unques-
tionably 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 estab-
lished in such a case.‘
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.
4 Aa 76. The brief submitted in the New Jersey state court case
was substantially equivalent on constitutional issues to the one sub-
mitted to our Court, raising equal protection, and due process chal-
lenges. It did not deal with the allegations in the federal complaint
of ex post facto violations, unconstitutional impairment of the obli-
gation of contracts, or uncompensated taking of private property.
6a
Appendia A
New Jersey now contends that the
Ne appeal from the
district court should be dismissed on the grounds of res
judicata in light of the New Jersey court’s actions.’
Two issues are therefore presented in this proceeding:
(1) the propriety of Judge Barlow’s dismissal of the fed-
eral action on Younger grounds, and (2) the res judicata
effect on the federal action of the subsequent state court
determination.
B. Youncer ABSTENTION
1. The Realm of Younger
Judge Barlow decided this case shortly after the Su-
preme Court handed down Juidice v. Vail.6 Based on the
holding in Juidice that Younger forbade an injunction
against state contempt proceedings, even though such pro-
ceedings 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.” ”
Such a declaration would represent a significant ex-
tension of the Younger doctrine. The heart of Y ounger lay
5 , , oe
Although New Jersey’ $ motion to dismiss is phrased in terms of
nf claim of mootness,” discussion of the contention revolves around
pad ae that the New Jersey judgments preclude federal liti-
6 430 U.S. 705 (1972).
7 Aa 38.
Ta
Appendia A
in the area of a pending criminal prosecution. The “tradi-
tional reluctance” of courts of equity to enjoin on-going
criminal proceedings* combined with the somewhat distinct
interest of comity, that federal courts not interfere un-
necessarily with a state’s attempts to enforce its criminal
law in its own courts.? The result was a bar to federal
interference in on-going state prosecutions, absent extra-
ordinary circumstances. In contrast, the requested relief
in the present controversy would affect a wholly civil pro-
ceeding brought by a private litigant. This distinction in
our view takes the case before us outside the ambit of
Younger."®
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
8 Huffman v. Pursue Ltd., 420 U.S. 592, 604 (1975).
9“Comity” has been defined as the interest in assuring “proper
respect for state functions.” Younger v. Harris, 401 U.S. 37, 44
(1971). The definition is less than clear cut, but the scope of this
interest has not been accurately delineated by subsequent cases.
10 See e.g. Bonnet v. Trustees of Schools of Twp. 41, 563 F.2d
831, 834 (7th Cir. 1977) (in diversity action regarding title, Younger
does not mandate abstention in favor of parallel state proceedings) :
Marshall v. Chase Manhattan Bank, 558 F.2d 680, 683-84 (2d Cir.
1977) (Younger does not require abstention in favor of previously
commenced state “winding up” proceeding for a corporation).
8a
Appendiz A
outside the domain of criminal proceedings." 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 cita-
tion. 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 administra-
tion of a State’s judicial system.” !? 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
11 See Huffman v. Pursue Ltd., 420 U.S. 592 (1975) ; Trainor v.
Hernandez, 431 U.S. 434 (1977); cf. Mitchum v. Foster, 407 U.S.
225, 243 (1972) (reserving question). The recent extensions of
Younger have evoked a significant amount of unfavorable scholarly
commentary suggesting that such extensions are unsupported by
precedent and policy. E.g. L. Tribe, American Constitutional Law,
152-56 (1978) ; Fiss, Dombrowski, 86 Yale L.J. 1103 (1977); Soifer
& Macgill, The Younger Doctrine: Reconstructing Reconstruction,
5S Texas L. Rev. 1141 (1977); Weinberg, The New Judicial Fed-
eralism, 29 Stanford L. Rev. 2291 (1977); Note, Post-Y ounger
Excesses in the Doctrine of Equitable Restraint, A Critical Analysis,
1976 Duke L. Rev. 523; see e.g. Zeigler, An Accommodation of the
Younger Doctrine and the Duty of Federal Courts to Enforce Con-
stitutional Safeguards in State Criminal Processes, 125 U. Pa. L.
Rev. 266 (1977); Developments in the Law, Section 1983 and
Federalism, 90 Harv. L. Rev. 1133, 1327-1330 (1977). See gener-
ally id. at 1274-1327.
12 430 U.S. 327, 335; cf. Walker v. City of Birmingham, 388 U.S.
307 (1967).
9a
Appendia A
the state to vindicate its authority in its own courts. 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."
Similarly, in Trainor v. Hernandez, which held
Younger applicable to an action taken by a state “in its
sovereign capacity” to recoup fraudulently obtained wel-
fare benefits, Justice White, for a five-man majority, pre-
termitted the applicability of “Younger principles to all
civil litigation.” '© Justice Blackmun, the fifth subscriber
to the majority’s position in Tramor, 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 “undue interference
with the legitimate activities of the states.”'” Pursuing
13 Cf. Gipson v. New Jersey Supreme Court, 558 F.2d 701, 703-
04 (3d Cir. 1977) (“In view of the special relationship between state
courts and members of their bars, we hold that the doctrine of
federal non-interference is appropriate in suits concerning pending
state attorney disciplinary proceedings.”). But cf. Morial v. Judi-
ciary Committee, 565 F.2d 295, 298-99 (Sth Cir. 1977 ) (en banc)
(Younger does not bar review of requirement that state judges leave
the bench before running for office).
14430 U.S., at 336 n.13 (“we save for another day ‘the apy
bility of Younger to all civil litigation’”). But cf. id., at 345 n.*,
(Brennan, J. dissenting) (suggesting that reservation of the appli-
cability of Younger to all civil litigation ‘s “tongue in cheek”’).
15 431 U.S. 434 (1977).
16 Jd. at 444-445 n8.
17 Id. at 448.
10a
Appendia A
what he described as the “requirement of balancing state
and federal interests,” }8 Justice Blackmun noted that ex-
cept for Huffman and Juidice, Younger had previously
been limited to criminal proceedings. These situations in
Huffman and Juidice, he deel vey
to the state.!9 e declared, were of special interest
e oon the proceeding before him, Blackmun
I, too, find significant the fact that the state was a
party in its sovereign capacity to both state and
federal suit. Ante at 444. Here I emphasize the
importance of the fact that the state’s interest in
the pending proceedings was substantial. In my
view, the fact that the state had the option of pro-
ceeding either civilly or criminally to impose sanc-
tions - . . 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 alternative.
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 poli-
cies weighing in favor of Younger abstention have been
significantly diluted in this case. Unlike Trainor and
18 Td. at 448.
19 Td. at 448-449.
20 431 U.S. at 449-50.
lla
Appendia A
Iluffman, 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 aver-
sion toward intermeddling in criminal processes, nor the
state’s interest in enforcing its laws in its own forum is
present.”
In further contrast to Juidice, the adjudication of the
constitutionality of administrative regulations is not a
“eore” function of the state judiciary.22 Federal equitable
action addressed to administrative regulations would not
endanger the smooth functioning of the state judicial sys-
tem. 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 with-
draw.
Thus, the result reached by Judge Barlow is not com-
pelled by the holdings of the previous cases in the
Younger line. And, as explicated below, other principles
counsel against such an extension.
21 The appellee’s brief suggests that the importance of the state’s
role in providing education, cited in Brown v. Bd. of Education,
347 U.S. 483, 493 (1954), furnishes justification for invoking the
Younger bar. Such an argument uses the words of Brown to mock
its substance. Brown’s holding sanctioned extensive judicial inter-
vention in educational affairs to vindicate federal rights. We do
not understand Younger and its progeny to have cast any aspersions
on the viability of Brown.
22 Cf. Juidice v. Vail, 430 U.S. 327, 335 (1977). .
12a
Appendia A
2. Countervailing Considerations; The Values of
Federal Jurisdiction
Judge Barlow’s opinion suggests that Y ounger bars
federal intervention whenever a remedy might be avail-
able in a state criminal or civil action. But such an ex-
haustion doctrine has been explicitly rejected by the Su-
preme Court in the context of § 1983 proceedings. In
Monroe v. Pape, 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.”4
23 365 U.S. 167, 183 (1961).
24 See Zablocki v. Redhail, 46 U.S.L.W. 4093, 4095 n.5 (1978)
(father need not petition court for exemption to marriage require-
ment or raise constitutional objection in state court before challeng-
ing it in federal court). Moore v. City of East Cleveland, 431 Us
494, 497 n.5 (1977) (exhaustion of zoning variance proceeding not
necessary in challenge to constitutionality of ordinance) ; Ellis v
Dyson, 421 U.S. 426, 432 (1975) (“Exhaustion of state judicial or
administrative remedies was unnecessary, for we have long held
that an action under § 1983 is free of that requirement”) ; Leonard
v. City of Columbus, 551 F.2d 974, 978 aff'd en banc 565 F.2d 957
(Sth Cir. 1977) (exhaustion of administrative and judicial remedies
not necessary to challenge police firing) ; Morial v. Judiciary Commi-
sion, 565 F.2d 295 (Sth Cir. 1977) (en banc) (Younger inappli-
cable where no enforcement proceeding is in progress. But cf. Ing-
— V. Wright, 430 U.S. 651 (1977) (availability of state criminal
onal poi eyes wo % satisfy “due process” required for corporal
(Footnote continued on following page)
13a
Appendix A
But even if Judge Barlow’s interpretation of Younger
were limited to erecting a rampart against federal adjudi-
cation whenever a state case is pending, it would be at
odds with a basie premise of our federal judicial system.
It is fundamental that where Congress has granted con-
current 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 im personam actions
in federal and state court may proceed concur-
rently, 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 (1922):
[A]n action brought to enforce [a personal lia-
bility] does not tend to impair or defeat the juris-
diction 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, with-
out reference to the proccedings in the other
court. Whenever a judgment is rendered in one
of the courts and pleaded in the other, the effect
(Footnote continued from preceding page)
We have recently surveyed the plethora of decisions rejecting an
exhaustion requirement for § 1983. U.S. ex rel. Ricketts v. Light-
cap, 567 F.2d 1226, 1229-31 (3d Cir. 1977); see Hochman v. Bd.
of Educ., 534 F.2d 1094, 1096-97 (3d Cir. 1976).
The implication in Huffman v. Pursue Ltd., that Younger man-
dated exhaustion of state remedies was explained by Wooley v.
Maynard, 430 U.S. 705, 711 (1977), as applying only when an at-
tempt is made to “annul the results of a state trial.”
l4a
Appendix A
of that judgment is to be determined by the ap-
plication of the principles of res adjudicata.
99 25
According to Justice Black’s seminal opinion, the
Younger doctrine finds its roots in the “slogan, ‘Our Fed-
eralism,’ born in the early struggling days of our Union
of States.” Since the traditional right of the plaintiff
to proceed simultaneously in state and federal forums has
25 Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 642 (1977)
(Plurality opinion, per Rehnquist, J.) Vendo Co. involved the issue
of whether a federal court was “expressly authorized” by the federal
antitrust laws to issue an injunction against pending state proceed-
ings. In evaluating the question of whether such an injunction was
necessary “in aid of” federal jurisdiction, Justice Rehnquist reaffirm-
ed the general right of a litigant to proceed simultaneously in state
and federal tribunals. See Stanton v. Embry, 95 U.S. 548, 554
(1876) (rejecting contention that pendency of prior state court
suit bars federal action) ; Donovan v. City of Dallas, 377 US. 409,
412 (1963) (suit filed in federal court to relitigate same issues, state
court enjoined plaintiffs, holding injunction invalid. “Plaintiffs in
the second suit chose to file that case in federal court. They had a
right to do this, a right which is theirs by reason of congressional
enactments passed pursuant to congressional policy. And whether
or not plea of res judicata in the second suit would be good is a
question for the federal court to decide”). Hart & Wechsler, Fed-
eral Courts and the Federal System 1234-35 (2d ed. 1973).
Brillhart v. Excess Insurance Co., 316 U.S. 491 (1942) is not to
the contrary, at least in the circumstances of this case. There,
where an issue was pending in a state court proceeding, the dismissal
of a declaratory judgment was remanded to the district court to con-
sider whether “the controversy between the parties can be better
settled in the proceeding in the state court.” This disposition, how-
ever, was premised on the fact that the “issues were not governed
by federal law.”
26401 U.S. at 44-45.
15a
Appendix A
an equally long lineage it would seem to follow that the
plaintiffs’ right is not alien to the counsels of Y me
and therefore that abstention was improper in this case.
Finally, we note that the more broadly the Y ounger
doctrine is pressed, the more it encroaches upon explicit
congressional grants of equitable jurisdiction. The ex-
treme of the extension would be an assertion that Younger
precludes federal injunctions whenever any state proceed-
ing is pending. Such an approach would seem clearly in-
appropriate. Since 1793 Congress has specifically prohib-
ited by statute—now codified as 28 U.S.C. § 2283—the
27'The venerable case of McClellan v. Carland, 217 U.S. 268
(1910), which we have recently cited as controlling, Cotler v. Inter-
County Orthopedic Assn., 526 F.2d 537 (3d Cir. 1975), would seem
to dispose of the contention that established canons of comity bar
declaratory judgment in the action before us. In McClellan, the
plaintiffs, who claimed to be heirs at law, and who had previously
been denied letters of administration in an on-going state probate
proceeding, brought suit in federal court to have themselves de-
clared the owners of an estate which had passed intestate. At the
application of the state, the federal court granted a stay to allow
the state attorney general to bring an action in state court to assert
the state’s claims. The Supreme Court reversed. Despite the pend-
ency of the probate proceeding and the expressed state interest, the
McClellan Court said (217 U.S. at 281):
It appeared upon the record that the circuit court eh gant
tically abandoned its jurisdiction over a case of which it ha
cognizance and turned the matter over for adjudication to a
state court. This, it has been steadily held, a federal court
may not do. Chicot County v. Sherwood, 148 U.S. 529,
534.
iti ity Action, 430 U.S.
ie Lockport v. Citizens for Community » 43
fo 564 ( orf ) lant filed state civil suit does not invoke
Younger abstention).
l6a
Appendix A
issuance of federal injunctions to stay state court actions
except in limited circumstances.”* If the principles of fed-
eralism 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 fed-
eral statutes which “expressly authorize” injunctions to
stay proceedings in a state court.”°
A more moderate extension would still generate ten-
sion with Congressional policies. And while such discord
may not alone preclude expansion of Younger’s injunctive
bar, frustration of Congressional policy weighs heavily
against it.
28 The originally unqualified prohibition contained in the Act of
March 2, 1893, Ch. 22 § 55, 1 Stat. 334, was subjected over the cilia
to a number of judicially and legislatively created exceptions. Sce
generally Redish, The Anti-Injunction Statute Reconsidered, 44 U
Chi. L. Rev. 717, 719-738 (1977). it,
29 In 1874, the anti-injunction statute was amended to provide an
exception where an injunction was authorized by any law relating to
bankruptcy proceedings. Revised Statutes of 1874, Ch. 12 § 720, 18
Stat. 134. A 1948 revision, currently enshrined in 28 U.S.C. § 2283
(1970), extended the exception to injunctions “expressly authorized”
by any Act of Congress revision. See Mitchum v. Foster, 407 U.S.
225, 233-38 (1972). Cf. Vendo Co. v. Lektro Vend, 433 U.S. 623,
639 n.9 (1977) (Rehnquist, J. for a plurality) (“If Congress de-
termines that the use of state court proceedings to foster anticompeti-
tive schemes is of sufficient gravity, it may simply conclude that the
need for ‘greater antitrust enforcement outweighs the need to pre-
vent friction in our federal system and could amend § 16 to expressly
authorize an injunction of such state court proceedings.”). :
An expansion to all civil proceedings would, also, overrule prece-
dents that granted such injunctions in a number of situations. See,
tg Sos Minerals v. United States, 352 U.S. 220 (1957); NLRB
v. Nash Finch Co., 404 U.S. 138 (1971); Capital Service 1
NLRB, 347 USS. 501 (1954). . ——
17a
Appendia A
Here, the appellants claimed a violation of their con-
stitutional rights under 42 U.S.C. § 1983, and invoked fed-
eral jurisdiction under 28 U.S.C. § 1343(3). In Mitchum
v. Foster, without dissent, the Supreme Court held that
§ 1983 is an expressly authorized exception to the general
statutory bar to injunctions against state court proceed-
ings. And in Vendo Co. v. Lektro Vend," all of the mem-
bers of the Court accepted Mitchum as an authoritative
exposition of the law regarding 4 1983. The plurality, per
Justice Rehnquist, restated the holding in Mitchum: *
We recounted in detail that statute’s history which
made it abundantly clear that by its enactment Con-
gress had demonstrated its direct and explicit con-
cern 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 Con-
gress 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 instrumentali-
ties could not protect those rights; it realized that
state officers might in fact be antipathetie to the
vindication of those rights; and it believed that
these failings extended to the state courts. Mit-
chum, 407 U.S. at 242.
30 407 U.S. 225 (1972).
31 433 U.S. 623 (1977).
32 Td. at 633.
18a
Appendix A
In light of the policy embodied in § 1983 and reiterated in
Vendo, we are most reluctant to stretch the equitable doc-
trine of Y ounger 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 Ex-
aminers,°% “There are fundamental objections to any con-
clusion that a litigant who has properly invoked the juris-
diction of a federal district court to consider federal con-
stitutional 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 equi inci
ples of comity and federalism.” es aga eh lage
these principles, in turn, requires “sensitivity to the legiti-
mate interests of both state and national governments” 35
as well as consideration for the rights of litigants. In this
case, we review a decision advancing the Y ounger 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 congres-
sional efforts to protect constitutional rights favor the
allowance of federal relief. Accordingly, we believe
Younger is not controlling.
33 375 U.S. 411, 415 (1964).
4 Ohio Bur. of Employment Servi
479 (1977). ployment Services v. Hodory, 431 U.S. 471,
35 Td.
19a
Appendix A
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,* 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. Al-
though the district court asserted that dismissal was war-
ranted, 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,*” citing England and Kline and remanded
for consideration on the merits.3* 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 dis-
missal by the district court here was improper.
C. Tue Impact or THE STATE Court JUDGMENT
The determination that Younger did not bar adjudica-
tion 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.
36 280 F. Supp. 312, rev'd 387 U.S. 423 (1967).
37 387 U.S. 423 (1967).
38 Justices Harlan and Stewart dissented without opinion. /d.
20a
Appendia A
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 Huff-
man v. Pursue, Ltd.,°° where federal action was foreclosed
by a state tribunal’s ruling which the federal plaintiff de-
clined 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, 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 de-
clined to dismiss on Younger grounds.
More recently, in Wooley v. Maynard,” a plaintiff
challenged a New Hampshire ordinance forbidding the de-
facing 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
39 421 U.S. 599 (1975).
40421 U.S. 426 (1975).
41430 U.S. 705 (1977).
2la
Appendix A
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 plain-
tiff’s thearter 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.”
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 imperative which it protects. Rather
than Huffman, the applicable precedent is England v.
Louisiana State Board of Medical Examiners.* In Eng-
land, the plaintiffs had been remitted under Pwiman ab-
stention 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 Su-
preme Court stressed the importance of the “right to
litigate claims fully in the federal courts,” “* and the po-
tentially decisive importance of federal fact-finding.* To
42 The Supreme Court did not, however, elaborate the doctrine
which led it to ignore the state ruling.
43 375 U.S. 411 (1964).
44 Id. at 417.
45 Jd. at 416.
22a
Appendix A
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 au-
thorization, has conferred specific categories of jurisdic-
tion... .” © Instead, it held, “the litigant is in no event
to be denied his right to return to the district court un-
less it clearly~appears that he voluntarily . .. [and]
fully litigated his federal claims in state courts. 4
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 liti-
gate 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 over-
lapping and inconsistent precedent and commentary.**® One
46 Td. at 415.
47 It was suggested that a plaintiff remitted to state court could
foreclose any implication of waiver by entering an explicit “reserva-
tion” on the state court record. Such an explicit reservation was not,
a to be the sine qua non of federal jurisdiction. 375 U.S. at
48 See Averitt, Federal Section 1983 Actions After State Court
Judgments, 44 U. Colo. L. Rev. 191 (1974) ; McCormack, Federalism
and Section 1983: Limitation on Judicial Enforcement of Federal
Claims, Part II, 60 Va. L. Rev. 250 (1974); Soifer & Macgill, supra,
note 11, at 1183-85 n.173; Theis, Res Judicata in Civil Rights Act
Cases: An Introduction to the Problem, 70 N.W. L. Rev. 859 (1976) ;
Development in the Law, supra, note 11, at 1330-1354; Note, The
(my of Federal and State Courts, 88 Harv. L. Rev. 453
(Footnote continued on following page)
23a
Appendix A
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, res judicata will bar the federal
constitutional claim, whether asserted or not.” *
(Footnote continued from preceding page)
The Fifth Circuit has taken a somewhat inconsistent position.
Compare Blunt v. Marion County Bd. of Educ., 515 F.2d 951 (Sth
Cir. 1975) (plaintiff allowed to raise federal claims not pressed in
state court litigation previously) ; Maher v. City of New Orleans,
516 F.2d 1051, 1055-58 (Sth Cir. 1975) (plaintiff allowed to chal-
lenge zoning ordinance as unconstitutional, despite his prior at-
tempt to overturn it on state grounds in state court), with Jennings v.
Caddo Parish School Bd., 531 F.2d 1331 (5th Cir. 1976) cert. denied,
— US. (dictum) (prior state court judgment conclusive as
to issues which might have been litigated) ; Cornwell v. Ferguson,
545 F.2d 1022 (Sth Cir. 1977) (semble).
Similarly, in reviewing applicable precedents, the Sixth Circuit
recently adopted the observation of one commentator that “the Su-
preme Court has given no guidance as to claim preclusion by final
state court decision in § 1983 cases and . . . as a result, the decisions
of the lower court teem with inconsistencies.” Getty v. Reed, 547
F.2d 971, 975 (6th Cir. 1977). See generally, Ellis v. Dyson, 421
U.S. 426, 440-41 n.6 (1975) Powell, J. dissenting.
49 Red Fox v. Red Fox, 564 F.2d 361, 363 (9th Cir. 1977) quoting
Scoggin v. Schrunk, 522 F.2d 436 (9th Cir. 1975) cert. denied, 423
U.S. 1066 (1976) ; See Williams v. Washington, 554 F.2d 369 (9th
Cir. 1977); Spence v. Latting, 512 F.2d 93 (10th Cir. 1974) cert.
denied 423 U.S. 896 (1976); Lovely v. Laliberte, 498 F.2d 1261
(1st Cir. 1974) ; Francisco Enterprises v. Kirby, 482 F.2d 481 (9th
Cir. 1973) cert. denied, 415 U.S. 916 (1974) ; Cf. Roy v. Jones,
484 F.2d 96, 98 (3d Cir. 1973) (dictum).
24a
Appendia A
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 “un-
reserved litigation” to waive that right would seem to
point to an equally broad right to reserve federal consti-
tutional claims.*° And while a policy of discouraging vexa-
tious litigation and conserving judicial resources can ap-
ply 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
50 Cf. Atlantic Coast Line R. Co . v. Engineers, 398 U.S. 281, 295
(1970). (“Although it could have tendered its federal claims to
the state court, it was also free to restrict the state complaint to
state grounds alone . . . and simultaneously pursue claims in both
courts.”); see also Alexander v. Gardner-Denver Co., 415 U.S. 36,
47 (1974) (In federal anti-discrimination effort, congressional pol-
icy is to allow individual to pursue rights independently under Title
VII and other applicable state and federal statutes).
Unlike the court in Francisco Enterprises Inc. v. Kirby, 482 F.2d
481 (9th Cir. 1973), we do not read Angel v. Bullington, 330 U.S.
183 (1947) as establishing a general rule applicable to § 1983 pro-
ceedings precluding federal adjudication of issues which could have
been raised in state court but were not. Angel involved a diversity
action in which the same state law theories which had previously
formed the basis for a state suit were brought before a federal dis-
trict court. Moreover, the federal issues to which res judicata were
held to apply had been asserted before the state court.
25a.
Appendia A
into state jurisdiction to exhaust state administrative and
judicial procedure on pain of losing their right to a fed-
eral hearing. Such results are hardly salutary.”
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.°?
51 See also Monroe v. Pape supra. Nor, in light of our discussion
above concerning the traditional right to bring parallel actions, are
we persuaded by the position that the commencement of litigation in
state court amounts to a waiver of the right to proceed in federal
court on other issues. This is particularly true where, as here, the
federal action began before the state action had proceeded signifi-
cantly toward final judgment.
52 See Graves v. Olgiati, 550 F.2d 1327, 1329 (2d Cir. 1977);
Mitchell v. NBC, 553 F.2d 265, 269-71, 274-77 (2d Cir. 1977);
McCune v. Frank, 521 F.2d 1152, 1154-57 (2d Cir. 1975) ; Newman
v. Board of Educ., 508 F.2d 277, 278 (2d Cir. 1975) cert. denied,
420 U.S. 1004; Lombard v. Board of Educ., 502 F.2d 631, 635-37
(2d Cir. 1971) cert. denied, 420 U.S. 976 (1975); Kurek v. Pleas-
ure Driveway and Park Dist., 557 F.2d 580, 594-95 (7th Cir. 1977);
Reich v. City of Freeport, 527 F.2d 666, 670-72 (7th Cir. 1975).
Cf. Blankner v. City of Chicago, 504 F.2d 1037, 1041-42 (7th Cir.
1974) cert. denied, 421 U.S. 948 (res judicata held to bar suit where
federal claims had been raised by amicus curiae before state court).
Insofar as our opinion in Roy v. Jones, 484 F.2d 96, 100-01
(1973), contains dicta to the contrary, it should be noted that such
statements were isued in the context of an attempt to relitigate issues
presented to a state court after the final judgment of the state su-
preme court. Cf. Kaufman v. Moss, 420 F.2d 1270 (3d Cir.) cert.
denied, 440 U.S. 846 (1970) (prior criminal judgment is res judi-
cata only on issues tendered to the jury).
(Footnote continued on following page)
26a
Appendix A
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 as-
sert constitutional claims. And finally, it captures the sub-
stance 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.*3
(Footnote continued from preceding page)
We note that the determination of which issues or claims were
brought before the state court may on occasion necessitate subtle in-
quiries. In such cases, the principles of England would bid us focus
attention on the intent of the party raising claims in state court. We
do not explore the potential distinctions in such cases, however, be-
cause they are not necessary to our decision here.
os 419 Cf. Sweet Briar Institute v. Button, 387 U.S. 423 (1967)
(prior state court dismissal not res judicata) ; McClellan v. Carland,
217 U.S. 268 (1910) (prior probate proceeding not res judicata).
We note also that, to the extent that the prior New Jersey opinion
governs this case, its holding is made applicable by the force of 28
U.S.C. § 1738. § 1738 enjoins a federal court to give the “same full
faith and credit” to state court judgments “as they have by law or
usage in the courts of such state.” See Mitchell v. N.B.C., 553 F.2d
265 (2d Cir. 1977); Note, Relationship supra note 47. But see
Scoggin v. Schrunk, 522 F.2d 436, 437 n.2 (9th Cir. 1975) cert.
denied, 423 U.S. 1066 (1976) (“It has not been contended that the
question is one upon which federal courts must look to state law.”).
(Footnote continued on following page)
27a
Appendiz A
2. The Application
The question with regard to the New Jersey judgment
thus is whether the plaintiffs in this case “freely and with-
out reservation” litigated their grievances in state court.
We conclude that such litigation could be said to have oc-
curred 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 there-
fore analogous to the England paradigm, in that the fed-
eral action, when filed, impinged upon no final state judg-
(Footnote continued from preceding page)
In any event, the res judicata effect would seem to be no broader
than that available in state court. If federal forums refused to hear
claims not barred in state courts, the purpose of repose would not
be served by the federal doctrine, since the litigants could return to
the state court to pursue their claims.
The general rule in New Jersey is that subsequent suits on the
same cause of action are barred by res judicata, and a new theory of
the case does not remove such bar. However, from our research it
is not at all clear that New Jersey courts would consider a § 1983
suit to constitute the “same cause of action” as a suit in Superior
Court to review the administrative promulgation of a regulation.
See e.g., Brick Twp. v. Vannell, 151 A.2d 404 (N.J. Super. 1959)
(suit for possession of land, involving same parties and same issues
was not same cause of action as prior declaratory judgment action).
There is thus considerable doubt in this case whether New Jersey
courts would deem a prior judgment an adjudication of claims which
could have been, but were not raised.
“pS ae
ee ee ae
28a
Appendix A
ments. 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.** 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.°° The New Jersey Court apparently resolved these
issues against the plaintiffs on the merits.*®
bs Defendants’ brief in support of motion to dismiss p. 4; see Dis-
trict Court opinion at Aa36 and Aa38, n.4.
hy Compare plaintiffs’ brief in this New Jersey Superior Court
with appellants’ brief here. Pp. 10-27.
56 The Superior Court explicitly rejected the contention that the
challenged action denied due process through the medium of an ille-
gal “irrebuttable presumption.” It also held that the regulations
were “reasonable” rather than arbitrary and capricious, and “rea-
sonably related to the felt public need.” In light of the Superior
Court’s citation of New Jersey Chapt. Am. Inst. of Planners v. New
Jersey State Bd. of Prof. Planners, 48 N.J. 581 (1967), an equal
protection case, this appears to be a rejection of the equal protection
challenge.
29a
Appendiaz A
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 protec-
tion and due process challenges.5? 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 beiore 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.
57 That the plaintiffs offered to dismiss the state suit does not
weaken such conclusion. This is so inasmuch as the offer fell short
of the explicit or implicit reservation required by England, for after
the offer was rejected, plaintiffs fully litigated the equal protection
and due process questions without informing the state court of any
hesitancy, equivocation or reservation.
We are not unsympathetic to the plaintiffs’ argument that their
litigation in state court was ineffective to waive their right to a
federal forum on the ground that it was undertaken in response to
an improper ruling that the federal forum was unavailable. Cf.
England supra, 375 U.S. at 422 (refusing to bind plaintiffs to a
state court judgment where submission of claims to state court re-
sulted from unclear federal precedent). Nonetheless, the plaintiffs
had before them the fully articulated directions of England. Con-
sequently, they could have explicitly reserved their federal claims
before the state forum as they pursued their appeal in the federal
courts. Instead, they chose to pursue the state court route in hopes
of success on their constitutional claims before that tribunal. As a
matter of litigation strategy this is understandable, for they did not
know whether the present appeal would succeed. But it would seem
unfair to the state, in the context here, to permit the plaintiffs now
to retrace their steps.
EEE a
30a
Appendia A
D. Conciusion
The district court erred in abstaining on Younger
grounds. However, the explicit holdings of the New Jer-
sey 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 proceed-
ings on the merits.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit.
3la
APPENDIX B
Opinion Amplifying Oral Opinion of the United States
District Court for the District of New Jersey
Unitep States Districr Court
District oF New JERSEY
Chambers of
Georce H. Bartow
Judge
: Trenton, New Jersey 08605
Federal Building
April 22nd, 1977
Nor ror PUBLICATION
William S. Greenberg, Esquire
Messrs. Greenberg & Mellk
28 West State Street
Trenton, New Jersey 08608
(Attorneys for Plaintiffs)
Mark Schorr, Esquire
Deputy Attorney General
State of New Jersey
Division of Law
Education and Public Employment Section
State House Annex
Trenton, New Jersey 08625
(Attorney for Defendants)
Re: New Jersey Epvucation Association, Paterson Epv-
cation Association, CAMDEN EpvucaTion ASSOCIATION,
Epucation Association oF Passaic, NEwARK TEACHERS
32a. |
Appendix B
Association, West New York Epucation Association,
Union Crry Epvucation Association, New Jersey Cor-
porations; Jose Yr and Manny DePara v. Frep G.
Burke, Commissioner of Education, as Commissioner
and Individually; Rura H. Mancuso, President of
the New Jersey State Board of Education, as Presi-
dent and Individually; and the New Jersey Strate
Boarp oF Epvcation. (Civil Action No. 76-2230.)
Gentlemen:
The doctrine of Railroad Comm’n v. Pullman Co., 312
U.S. 496 (1941), holds that when a federal constitutional
claim is premised on an unsettled question of state law,
the federal court should stay its hand in order to pro-
vide the state courts an opportunity to settle the under-
lying state-law question and thus avoid the possibility of
unnecessarily deciding a constitutional question. Absten-
tion is regularly ordered where there is an action pend-
ing in state court which will likely resolve the state-law
questions underlying the federal claim. See Harris County
Commissioners Court v. Moore, 420 U.S. 77, 83 (1975).
See also Carey v. Sugar, 425 U.S. 73 (1976).
In this case, the plaintiffs have advanced several sub-
stantive constitutional claims. However, the state admin-
istrative rules and regulations are currently being chal-
lenged in the state courts by these same plaintiffs on a
number of grounds, both state and federal. A decision
in favor of the plaintiffs by the state courts would obvi-
ate the need for this Court to rule on the plaintiffs’ con-
stitutional claims. Thus, it appears that this is an appro-
priate case for the abstention doctrine.
Ordinarily, the federal court will retain jurisdiction
over the action until the state courts have had an oppor-
33a
Appendix B
tunity to make their ruling. In this case, however, there
is a pending state judicial proceeding available for rais-
ing the constitutional issues presented to this Court. In
fact, some of the constiutional issues have already been
raised in the state court. In such circumstances—that is,
where it is abundantly clear that the plaintiffs have the
opportunity to present their federal claims in an ongoing
state proceeding—we think it is appropriate to invoke the
doctrine of Younger v. Harris, 401 U.S. 37 (1971), which
calls for dismissal of the action. See Juidice v. Vail, 45
U.S.L.W. 4269 (U.S. Mar. 22, 1977); cf. New Jersey v.
Chesimard, No. 77-1104 (3d Cir., filed Mar. 9, 1977) (en
banc).
Juidice held that the principles of Younger are not con-
fined solely to criminal or quasi-criminal cases. Instead,
the “more vital consideration” behind the Younger
doctrine of nonintervention lay not in the fact that
the state criminal process was involved, but rather
in
“the notion of ‘comity,’ that is, a proper respect
for state functions, a recognition of the fact that
the entire country is made up of a Union of
separate state governments, and a continuance
of the belief that the National Government will
fare best if the States and their institutions are
left free to perform their separate functions in
the separate ways.”
45 U.S.L.W. at 4271 (citations omitted).
It was made clear at the oral argument of this motion
that what the plaintiffs are really seeking in this Court
is an injunction against the enforcement of the state reg-
a
ae a
34a
Appendix B
ulations in question pending a decision—by this Court or
by the state court—on their validity.1 However, that spe-
cific relief has already been denied by the state court.
Thus, in effect, the plaintiffs are asking this Court to re-
verse a determination of the state court. It is hard to
imagine a situation more clearly calling for invocation of
the principles of equity, comity, and federalism.’
The hallmark of the Younger doctrine has always been
non-interference with state judicial functions. See, e.g.,
The Supreme Court, 1975 Term, 90 Harv. L. Rev. 56, 244
(1976). Youwnger’s constraints on federal injunctive relief
were prompted by a concern for the integrity of state
Judicial proceedings. See id. at 245. Except in extraor-
dinary cases, federal courts should give state courts the
opportunity to fulfill their proper role. The award of
injunctive relief in this case would impair the performance
of a proper state function and would result in the dupli-
cation of legal proceedings.
The plaintiffs argue that abstention is inappropriate
here because the “quality of review” and the types of rem-
edies available in the state court are inadequate. Spe-
cifically, the plaintiffs complaint that the state court does
not have before it a hearing record or a record of factual
findings. They point out that the state court record is
rather limited, pursuant to N.J. Ct. R. 2:5-4(b). They
stress that damages and attorney’s fees cannot be awarded
in tue current state action. They seem to contend that
1 See Transcript, Apr. 4, 1977, at 15.
2 See Transcript, Apr. 4, 1977, at 10-15.
3 See also Rooker v. Fidelity Trust Co., 263 U.S. 403 (1923).
35a
Appendix B
abstention may not be ordered unless the remedies and the
scope of review available in the state court are at least
as broad as those available in the federal district court.
However, there is no such rule with respect to absten-
tion. For example, the New York contempt procedures
under consideration in Juidice clearly provided more lim-
ited possibilities for raising federal issues than the plenary
procedures available in the federal district court. Never-
theless, the Supreme Court ordered the lower court to ab-
stain, holding that “[n]o more is required to invoke
Younger abstention” than “an opportunity to fairly pur-
sue ... constitutional claims in the ongoing state proceed-
ings.” 45 U.S.L.W. at 4272. There has been no showing in
this Court that the ongoing proceeding in the New Jersey
Appellate Division presents an inadequate opportunity for
the litigation of the plaintiffs’ constitutional claims.‘ Even
the fact that the current state court record is somewhat
limited is not an insuperable difficulty, in the light of N.J.
Ct. R. 2:5-5(b). 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.
At the oral argument of this motion, the plaintiffs of-
fered to withdraw their state court action with prejudice,°
4 The plaintiffs point out that many of their constitutional claims
are not before the state court, and they argue that this fact makes
the state court action inadequate. It is not clear why the plaintiffs
have not submitted all of their federal claims to the state court.
There is nothing on the record to indicate that the state procedures
prevented them from doing so. Thus, it appears that they had the
opportunity to present all of their constitutional claims. Their fail-
ure to avail themselves of this opportunity does not mean that the
state procedures are inadequate. See Juidice v. V ail, supra, 45 U.S.
L.W. at 4272.
5 See Transcript, Apr. 4, 1977, at 14.
36a
Appendix B
apparently in the belief that the chief obstacle to this
Court’s exercise of jurisdiction is the pendency of the state
proceedings. There are a number of problems with this
procedure. First, although the pendency of state proceed-
ings is an essential predicate to Younger abstention, it is
not necessary for Pullman abstention. Compare C. Wright,
The Law of Federal Court 4 52A, at 233 (3d ed. 1976),
with id. § 52, at 220-21. Because we have already deter-
mined that this is an appropriate case for Pullman ab-
stention, the dismissal of the plaintiffs’ state court case
would not result in our reaching the merits of their con-
stitutional claims—we would continue to abstain until the
unsettled questions of state law were resolved by the state
courts. Second, it is likely that a withdrawal of the state
court suit with prejudice would constitute res judicata and
would bar the plaintiffs from litigating the same issues
in this Court. See Preiser v. Rodriguez, 411 U.S. 475, 497
(1973) ; Thistlethwaite v. City of New York, 497 F.2d 339
(2d Cir.), cert. denied, 419 U.S. 1093 (1974); Gambocz v.
Yelencsics, 468 F.2d 837, 840 (3d Cir. 1972); Bennun v.
Board of Governors of Rutgers, 413 F. Supp. 1274, 1278
(D.N.J. 1976) ; C. Wright, supra, § 52, at 221.
For the reasons expressed above, the defendants’ motion
to dismiss will be granted.
Very truly yours,
Grorce H. Bartow
United States District Judge
GHB/ebj
37a
APPENDIX C
Order of the Superior Court of New Jersey,
Appellate Division
(Filed—October 15, 1976)
Superior Court or New JERSEY
APPELLATE DIvIsioN
Civil Action
——<—_—
Jose Y1, Manny Dr Para, Individually and as representa-
tives of class comprised of all Bi-Lingual/Bi-Cultural &
English as a second language, Teachers of the State of
New Jersey,
si Plaintiff,
vs.
Frep G. BurKe, Commissioner of Education and The
Board of Education of the State of New Jersey,
Defendant.
A.
—_
This matter having been opened before the Honorable
John F. Crane, J.A.D., assigned to emergent applications
bv Michael D’Alessio, Jr., Attorney for Plaintiffs and upon
telephone notice to the Attorney General of New Jersey,
Susan Gifis responding and the matter having been pre-
sented on Wednesday, October 13th, 1976 pursuant to RR
2 :9-8.
38a
Appendix C
It is on this 13th Day of October 1976 orperep that Mo-
tion for Emergency Ad Interim Stay of Enforcement of
Defendant’s regulations amending N.J.A.C. 6:11-8.8 & 8.9
is hereby denied without prejudice.
Joun F. Crane, J.A.D.
Dated: Oct. 15, 1976
39a
APPENDIX D
Order of the Superior Court of New Jersey,
Appellate Division
(Filed—November 18, 1976)
Superior Court or New JERSEY
APPELLATE DIvIsIon
Docket No. A-540-76
Motion No. M-398-76
Berore Part C
>
Jose Y1, Manny DePara, ete.,
vs.
Frep G. Burke, ComMIssioneR OF Epucation, e¢ al.
—
JupGes: Frirz
CRAHAY
ARD
Moving Papers Filed—October 13, 1976
Answering Papers Filed—November 1, 1976
Date Submitted to Court—November 12, 1976
Date Decided—November 17, 1976
This matter having been duly presented to the Court,
it is hereby ordered as follows:
40a
Appendiz D
Motion/Petition for Interim Relief and Stay of Decision
Pending Appeal Denied—Other
SUPPLEMENTAL:
The motion is denied without prejudice to its resub-
mission in conformity with R. 2:8-1.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
EwizaBeTtH McLAvGHLIN
Clerk
For the Court:
JoHn W. Fritz
P.J.A.D.
Witness, the Honorable John W. Fritz, Presiding Judge
of Part C, Superior Court of New Jersey, Appellate
Division, this 17th day of November 1976.
EwizaBETH McLAvuGHLIN
Clerk of the Appellate Division
4la
APPENDIX E
Order of the Superior Court of New Jersey,
Appellate Division
(Filed—April 26, 1977)
Superior Court oF New JERSEY
APPELLATE Dtvision
Docket No. A-540-76
Motion No. M-2189-76
BerorE Part C
-
_
JosE Y1, Manny DePanra, ete.,
Us.
Frep G. Burke, Commissioner of Education, etc.,
»s
—
JupGes: Fritz
ARD
PRESSLER
Moving Papers Filed April 14, 1977
Answering Papers Filed April 20, 1977
Date Submitted to Court April 15, 1977
Date Decided April 25, 1977
42a
Appendix E
This matter having been duly presented to the Court,
it is hereby ordered as follows:
Motion for ad interim relief pending outcome of appeal
Granted—Denied—Other
SUPPLEMENTAL:
The application for a stay is denied with respect to
any alleged member of the class of appellants who, by
virtue of proficiency in English, is eligible for certifica-
tion. The application for a stay is granted, however, in
respect of those alleged members of the class who are
without proficiency in English and, therefore, not certi-
fiable pursuant to the challenged regulation. The stay as
to these members of the class is, however, granted sub-
ject to the specific condition that no period of employ-
ment of any of them following the originally scheduled
enforcement date of the regulation here challenged shall
affect the tenure status of such members of the class as
said status existed when the regulation was adopted in
the event that the validity of the regulation is confirmed
on appeal. Argument of the appeal is accelerated and
will be heard at 10 a.m., June 6, 1977, before Part C of
the Appellate Division, at Room 438, State House An-
nex, Trenton, New Jersey.
For the Court:
JouHn W. Fritz
P.J.A.D.
Witness, the Honorable John W. Fritz, Presiding Judge
of Part C, Superior Court of New Jersey, Appellate
Division, this 25th day of April 1977.
EuizaBetH McLAvucHuin
Clerk of the Appellate Division
43a
APPENDIX F
Per Curiam Opinion of the Superior Court of New Jersey,
Appellate Division
(Filed—July 12, 1977)
Superior Court or New JERSEY
APPELLATE DIVISION
A-540-76
——
Jose Yx, Manny DePara, Individually and as representa-
tives of class comprised of all Bi-Lingual-Bi-Cultural
and English as a second language, Teachers of the
f New Jerse
State of Ne y; heme
and
Boarp or Epucation or THE Crry or NEWARK,
Appellant-Intervenor,
v.
Frep G. Burke, Commissioner or Epucation, and THE
Boarp or Epucation or THE State or New JERSEY,
Respondents,
and
Puerto Rican Conaress oF New JERSEY,
Respondent-Intervenor.
?
44a
Appendix F
Argued June 6, 1977—Decided Jul 12 1977
Before Judges Fritz, Ard and Pressler.
On appeal from New Jersey State Board of Educa-
tion.
Mr. William S. Greenberg argued the cause for appel-
lants (Messrs. Greenberg & Mellk, attorneys; Mr.
Arnold M. Mellk, on the brief).
Mr. Robert T. Pickett appeared for appellant-inter-
venor.
Mrs. Susan Gifis, Deputy Attorney General, argued
the cause for respondents (Mr. William F. Hyland,
Attorney General of New Jersey, attorney; Mrs.
-Erminie L. Conley, Deputy Attorney General, of
counsel).
Ms. Jacquelyn R. Rucker argued the cause for re-
spondent-intervenor.
Ostensibly, from the notice of appeal, this appeal chal-
lenges
1. Amendments to N.J.A.C. 6:11-8.9 concerning
the teaching of English as a second language said
— having been adopted September 15,
2. Amendments to N.J.A.C. 6:11-8.9 [sic; prob-
ably -8.8] concerning Bi-Lingual/Bi-Cultural Edu-
cation adopted September 15, 1976. [Emphasis
added. ]
Counsel’s brief, however, challenges the regulations in their
entirety and we have considered the matter as though the
notice of appeal were amended to that effect.
45a
Appendix F
Appellants argue:
Point I—Enforcement of these regulations abridges
the constitutional rights of all the teachers in this
class.
Point II—Because appellants relied upon pre-exist-
ing licensing requirements the State Department
of Education is estopped from enforcing these
rules an: regulations.
Point I1]—Defendants did not comply with the Ad-
ministrative Procedure Act, N.J.S.A. 52:14B-1
et seq.
We are entirely satisfied of the authority for state reg-
ulation in the areas involved, it being well settled that the
state may regulate occupations, professions and businesses
in the interest of the public welfare so long as the means
adopted are not arbitrary and are reasonably related to the
felt public need. N.J. Chapt., Am. I.P. v. N.J. State Bd.
of Prof. Planners, 48 N.J. 581, 599-600 (1967), app. dism.
389 U.S. 8 (1967). We are persuaded of the prima facie
need for and the reasonableness of the regulations, includ-
ing the inherent classification and the purpose, without
particular regard for the strong presumption of validity,
Cooper River Convalescent Center v. Dougherty, 133 N.J.
Super. 226, 232 (App. Div. 1975) or the heavy burden im-
posed on him who challenges such regulation to demon-
strate that it is arbitrary or unreasonable, Consolidation
Coal Co., et al. v. Kandle, et al., 105 N.J. Super. 104, 118-
119 (App. Div. 1969), aff'd o.b. 54 N.J. 11 (1969).
We also believe that application of an estoppel doctrine
in this area (even were we to find reliance in the estoppel
sense, which we do not; Skulska v. Nolan, 68 N.J. 179 (1975)
46a,
Appendix F
is clearly distinguishable) would be most inappropriate,
since it would obviously seriously impair a significant gov-
ernmental interest. Slurzberg v. Bayonne, 29 N.J. 106
(1959).
Nor do we find any defect in the procedure adopted in
the promulgation of the regulations. Despite appellants’
protestations to the contrary, adoption of these regulations
did not constitute a license revocation proceeding. The
chosen procedure (cf. R.H. Macy € Co. Inc. v. Director, Div.
of Taxation, 77 N.J. Super. 155, 179-180 (App. Div. 1962),
aff’d o.b. 41 N.J. 3 (1963)) was quasi-legislative and com-
plaint with the requirements in such a rule-making case.
N.J.S.A. 52:14B-4; cf. Amer. Trial Lawyers Assoc. v. N.J.
Supreme Ct., 126 N.J. Super. 577 (App. Div. 1974), opinion
adopted in toto and aff’d 66 N.J. 258 (1974) ; In re Matter
of Public Hearings, 142 N.J. Super. 136 (App. Div. 1976).
To the extent appellants are concerned with that which
they describe as an “irrefutable presumption,” disfavored
in law (Vilandis v. Kline, 412 U.S. 441, 446 (1973); but
cf. Potter v. New Jersey Supreme Court, 403 F.Supp.
1036, 1039 (D.N.J. 1975) aff’d 546 F.2d 418 (3 Cir. 1976),
we observe that the result in Berger v. Board of Psycholo-
gist Examiners, 521 F.2d 1056 (D.C. Cir. 1975) would
unquestionably have been different had Berger there had
the opportunity for individual review provided here by
N.J.A.C. 6:11-3.31. We leave the application of the regu-
lations to any individual to the particular reeord estab-
lished, both pursuant to N.J.A.C. 6:11-3.31 and otherwise,
in such a case.
We sustain the validity of the regulations. The stay
heretofore granted is dissolved.
A True Copy
ExizasetH McLavuGHuin
Clerk
47a
APPENDIX G
Order of the Supreme Court of New Jersey, Denying
Petition for Certification
(Filed—July 20, 1977)
SuprEME Court oF New JERSEY
C-901 SepremBer Term 1976
>.
_
Jose Y1, Manny DePara, etc.,
Appellants-Petitioners,
vs.
Frep G. Burke, Commissioner of Education, et al.,
Respondents-Respondents.
..
-
To Appellate Division, Supe’ or Court:
A petition for certification having been submitted to
this Court, and the Court having considered the same,
It is hereupon Onverep that the petition for certifica-
tion is denied with costs.
Witness, the Honorable Richard J. Hughes, Chief Jus-
tice, at Trenton, this 20th day of July, 1977.
FiLoreENcE R. PESKOE
Clerk
A True Copy
FLoreNcE R. PESKOE
Clerk
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