# Appendix — New Jersey-Philadelphia Presbytery of the Bible Presbyterian Church v. New Jersey State Board of Higher Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3171%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1985 - **Citation:** 469 U.S. 1107 ## Text 4 os 6 26 J ) — _ US. IN THE ad 18 ” SUPREME COURT OF THE UNITED STAPES®=2. 5" October Term. 1984 NEW JERSEY-PHILADELPHIA PRESBYTER) OF THE BIBLE PRESBYTERIAN CHURCH. et al.. Petitioners [ NEW JERSEY STATE BOARD O} HIGHER EDUCATION. et al. Respondents APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT William Bentlev Ball Philip J. Murren Sandra E. Wise BALL & SKELLY 311 North Second Street P.O. Box 1108 Harrisburg. PA 17108 (717) 232-8731 Attorneys for Petitioners Counsel of Record October 15. 1984 PACKARD PRESS ‘LEGAL DIVISION. 10th & SPRING GARDEN STREETS. PHILA. PA 19123 (215) 236-2000 TABLE OF CONTENTS Page APPENDIX A — Unpublished Opinion of the United States Court of Appeals for hon Third Circuit ag ee See Pe ee ee re A-1 APPENDIX B — Unpublished Opinion and Order of the United States District Court for the District of New Jersey (July 29, 1983, and September ee ee re A-7 APPENDIX C — Opinion of the Supreme Court of New Jersey (August 9, 1982), reported at 90 N.J. 470, 448 A:2d GOS CIGBZ). ... nsw eceess. A-26 APPENDIX D — Opinion and Order of the United States District Court for the District of New Jer- sey (May 18, 1981), reported at 514 F.Supp. 506 TN ies sk yk ck ee hk ee eens A-47 APPENDIX E — Opinion and Amendments of the United States Court of Appeals for the Third Cir- cuit (April 14, 1981), reported at 654 F.2d 868 Ce, EE cc sock whe ON Suan ee es A-70 APPENDIX F — Opinion and Order of the United States District Court for the District of New Jer- sey (January 4, 1980), reported at 482 F.Supp. ge big Seren eree eer een oan A-169 APPENDIX G — Statutory Provisions Involved . A-200 APPENDIX A UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 83-5774 NEW JERSEY-PHILADELPHIA PRESBYTERY OF THE BIBLE PRESBYTERIAN CHURCH; SHELTON COLLEGE, A Ministry of Bible Presbyterian Church; BIBLE PRESBYTERIAN CHURCH OF COLLINGS- WOOD, NEW JERSEY; Kevin WILSON, Brad GSEL, Kevin Clair MICHAEL, Curtis Jordan BASHAW, Louise OLSON and Everette Charles OLSON, Appellants v. NEW JERSEY STATE BOARD OF HIGHER EDUCA- TION; T. Edward HOLLANDER, Chancellor of New Jersey Department of Higher Education; Richard D. BRESLIN, Assistant Chancellor for Academic Affairs of the New Jersey Department of Higher Education; and Amorita SUAREZ, Director of the Office for Independ- ent College and Universities of the New Jersey Depart- ment of Higher Education. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civ. No. 79-3341) A-1 A-2 Argued June 22, 1984 Before: ALDISERT, Chief Judge, HIGGINBOTHAM, Circuit Judge, and HUYETT, District Judge. (Filed July 17, 1984) William Bentley Ball, Esq. (ARGUED) Philip J. Murren, Esq. Richard E. Connell, Esq. Sandra E. Wise, Esq. Ball & Skelly 511 North Second Street P.O. Box 1108 Harrisburg, Pennsylvania 17108 COUNSEL FOR APPELLANTS Irwin I. Kimmelman Attorney General of New Jersey OF COUNSEL: James J. Ciancia Assistant Attorney General ON THE BRIEF: Benjamin Clarke (ARGUED) Deputy Attorney General Richard J. Hughes Justice Complex CN 112 Trenton, New Jersey 08625 COUNSEL FOR APPELLEES Honorable Daniel H. Huvett. 3rd. of the United States District Court for the Eastern District of Pennsvlvania. sitting by designation. A-3 OPINION OF THE COURT PER CURIAM. This is an appeal by Shelton College (a religious institution located in New Jersey). church entities affili- ated with Shelton College, Shelton College students and parents, and a Shelton College facuity member from an order of the district court refusing to permanently enjoin the New Jersey State Board of Higher Education from enforcing against Shelton College two provisions of New Jersey's education law, N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6, that require institutions of higher education in New Jersey to be licensed by the state before they can confer baccalaureate degrees. The district court held that application of New Jersev’s degree licensing stat- utes to a sectarian college whose religious doctrine pre- cludes state licensure does not violate the first amend- ment. We affirm. This controversy between Shelton College and the New Jersey State Board of Higher Education has spawned almost two decades of litigation in the state and federal courts. In 1966, in response to a resolution by the New Jersey State Board of Education to terminate Shel- ton College’s power to confer baccalaureate degrees be- cause of its failure to comply with certain minimum educational standards, Shelton College brought suit against the Board in New Jersey state court. contending that New Jersey’s degree licensing statutes infringed its freedom of speech in violation of the first amendment. The New Jersey Supreme Court certified an appeal and upheld the constitutionality of the statutes. thereby prompting the Board to revoke Shelton College’s license to award degrees in New Jersev. Shelton College v. State Board of Education, 48 N.J. 501, 226 A.2d 612 (1967). In February 1979, the Board learned that Shelton Col- lege intended to offer courses in New Jersey and to grant degrees through its licensed Florida affiliate. Believing that this practice violated New Jersey's education laws. A-4 the Board brought suit against Shelton College in New Jersey Superior Court to enjoin the college from engag- ing in any educational instruction or granting degrees until it obtained a New Jersey license. The Superior Court granted a preliminary injunction to that effect. In November 1979, Shelton College joined with certain “federal only” plaintiffs, appellants herein, and filed an action under 42 U.S.C. §1983 in the United ‘States District Court for the District of New Jersey seek- ing to enjoin the Board from interfering with their right to teach, advertise, and grant degrees without a New Jersey license. The district court issued a preliminary injunction, enjoining the Board, on first amendment religion grounds, from preventing Shelton College from engaging in religious teaching or educational activities or from advertising those activities. It retained jurisdic- tion of plaintiffs’ claim that the degree licensing statutes violated the religion clauses of the first amendment pending construction of the statutes by the New Jersey state courts. New Jersey-Philadelphia Presbytery of the Bible Presbyterian Church v. New Jersey State Board of Higher Education, 482 F.Supp. 968 (D.N.J. 1980). This court affirmed. New Jersey-Philadelphia Presbytery of the Bible Presbyterian Church v. New Jersey State Board of Higher Education, 654 F.2d 868 (3d Cir. 1981). Meanwhile, in the separate state court action, the New Jersey Superior Court held that New Jersey’s de- gree licensing statutes were constitutional under the first amendment religion clauses, and it permanently enjoined Shelton College from awarding degrees until it obtained a license. Shelton College and the “federal only” plaintiffs then returned to federal district court seeking to preliminarily enjoin the Board from imple- menting that state court injunctive order pending review by the New Jersey Supreme Court. The district court granted a preliminary injunction. New Jersey-Philadel- phia Presbytery of the Bible Presbyterian Church v. New Jersey State Board of Higher Education, 514 F.Supp. A-5 506 (D.N.J. 1981). The New Jersey Supreme Court affirmed the Superior Court, holding that New Jersey's degree licensing statutes applied to religious institutions and that they were not unconstitutional under the reli- gion clauses of the first amendment. New Jersey State Board of Higher Education v. Board of Directors of Shelton College, 90 N.J. 470, 448 A.2d 988 (1982). Based on that decision, the district court below refused to make permanent its preliminary injunction enjoining the Board from enforcing New Jersey's degree licensing statutes against Shelton College. Plaintiffs appealed. Before us, appellants contend that the application to Shelton College of New Jersey's degree licensing stat- utes infringes upon their free exercise of religion and creates an excessive state entanglement with religion in violation of the religion clauses of the first amendment. Appellees respond that because these constitutional issues were fully. litigated in the New Jersey Supreme Court, resulting in a final judgment prohibiting Shelton College from conferring baccalaureate degrees without a license, appellants are barred on res judicata grounds from relitigating the issues in federal court. Alterna- tively, appellees argue that New Jersey's degree licens- ing statutes are constitutional under the first amend- ment. 2 After due consideration of these contentions, and for the reasons set forth in the district court opinion by the Honorable Dickinson R. Debevoise, New Jersey-Phila- delphia Presbytery of the Bible Presbyterian Church v. New Jersey State 3oard of Higher Education, Civ. No. 79-3341 (D.N.J. July 29, 1983), reprinted in app. at 225. we conclude that this action is not barred on res judicata grounds and that New Jersev’s degree licensing statutes pass constitutional muster. A-6 Accordingly, the judgment of the district court will be affirmed. TO THE CLERK: Please file the foregoing opinion. Circuit Judge A-7 APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY NEW JERSEY-PHILADELPHIA : Civil No. 79-3341 PRESBYTERY OF THE BIBLE PRESBYTERIAN CHURCH; SHELTON COLLEGE, etc., et al., Transcript of Plaintiffs, : Proceedings vU. : NEW JERSEY STATE BOARD OF HIGHER EDUCATION, etc., et al., . Defendants. : Newark, New Jersey July 29, 1983 BEFORE: HONORABLE DICKINSON R. DEBEVOISE. U.S.D.]J. Appearances: (No appearances. ) THE COURT: What I intend to do is simply put an opinion on the record and then reserve the right to take the transcript of the opinion and correct it as needed. The procedural history of this case first in this court as reported in 482 F.Supp. 968 (1980) (Shelton I), then in the Court of Appeals, reported in 654 F.2d 868 (1981) (Shelton II), and then in this court again is described in New jersey-Philadelphia Presbytery v. N.J.,514 F.Supp. 506, (D.N.J. 1981), (Shelton III). In Shelton Ill I set forth reasons why the defendants should be preliminar- ily enjoined from enforcing or implementing an order of A-8 the Chancery Division of the New Jersey Superior Court in the related state court action enforcing the application of the New Jersey licensing statutes and regulations against Shelton College until such time as the Supreme Court of New Jersey construed the statute and regula- tions. The New Jersey Supreme Court directly certified the case then pending in the State Superior Court. It held that “the State’s program for licensing institutions of higher education is applicable to sectarian institutions and that faciaily it does not unduly interfere with the free exercise of religion nor create an excessive state en- tanglement with religion.” (N.J. Bd. of Higher Ed. v. Shelton College, 90 N.J. 470, 490 (1982)). The Court, however, modified the judgment of the Chancery Divi- sion to allow the awarding of earned credits and degrees to all eligible students through the end of the 1982-83 academic year, and to the class of 1984 through the end of the 1983-84 academic year. On January 10, 1983 a plenary trial of the instant case was held. The State court trial testimony and ex- hibits were made part of the record and each side called one additional witness. I reserved decision giving the parties additionai time to submit post trial briefs. I have reviewed the entire record, the briefs, and conclude that plaintiffs are not entitled to further relief. The preliminary injunction entered in this case after Shelton I need not be made final because the state courts have ruled that the New Jersey licensing statutes and regulations do not and were not intended to prevent Shelton College from teaching or advertising. They do no more than regulate the granting of formal degrees. The remaining issues are whether the New Jersey degree licensing statutes and regulatory scheme violate plaintiffs’ First Amendment right to free exercise of their religion, and whether the licensing system results in an impermissible entanglement between government and religious institutions. I conclude that in the peculiar nae A-9 circumstances of this case the decision of the New Jersey Supreme Court on these issues is not res judicata and binding upon the plaintiffs other than, perhaps, Shelton College. I further conclude, however, that the New Jersey statutes and regulatory scheme as explicated by the New Jersey Supreme Court, pass Constitutional muster. Res Judicata Issue In order to evaluate the defendants’ res judicata claim, it is necessary to review certain of the procedural steps in the case. Before this case was instituted, the New Jersey State Board of Higher Education had instituted an action in the Chancery Division of the New Jersey Superior Court to restrain Shelton College from operating without a license. The defendants in that case were the board of directors of Shelton College and two of its officers. On the date the complaint was filed, the Superior Court issued a temporary restraining order enjoining, with a limited exception for certain students for a short period of time, all educational or instructional activities and advertising. Shortly afterwards plaintiffs filed this action under 42 U.S.C., Section 1983, alleging that the efforts of the Board to prevent Shelton’s educational and instructional activities unless it complied with New Jersey’s licensing scheme violated their rights to the free exercise of reli- gion and unduly entangled the State in the affairs of a religious institution. Plaintiffs in the federal action were Shelton College, New Jersey-Philadelphia Presbytery of the Bible Presby- terian Church, the Bible Presbyterian Church of Collings- wood, four Shelton College students, two parents of Shelton College students, and a member of the Shelton College faculty. A-10 After an evidentiary hearing in the case I entered an order which, among other things, enjoined the defend- ants from taking or permitting the taking of any action having the effect of preventing Shelton College from engaging in any religious teaching or educational activi- ties or from publicizing such activities. I did not reach the principal issue, namely, whether the Board’s licens- ing procedures, if applicable to Shelton College, would constitute a violation of the religion clauses of the First Amendment. I| abstained as to that issue and stayed the federal proceedings until the State court had an oppor- tunity to determine whether the licensing requirements applied to a religious institution such as Shelton College. If they did not, there would have been no need to reach the difficult constitutional issue posed in this case. Rail- road Comm’n against Pullman Co., 312 U.S. 496 (1941). The defendants argue on the basis of Younger v. Harris, 401 U.S. 37 (1971) and its progeny, that the federal case should have been dismissed since there was a pending state court proceeding started before this action involving a matter of important state interest. I stated in Shelton | that “if one were to accept the State Board’s contention that all that is involved in this case is a question whether the State Board has the power to license Shelton and grant degrees and if there were no attempt to shut down this teaching institution, it is my opinion that both the Younger and the Pullman doctrines would be applicable.” 482 F.Supp. at 976. However, at that juncture in the state and federal litigation the State Board was not simply seeking to deny Shelton College the right to grant degrees. It sought to prevent it from engaging in any teaching activities, dis- rupting in the process the religious expression and prac- tices of a community of believers. This, I concluded, was such an egregious violation of First Amendment rights that the case came under a recognized exception to the Younger doctrine. The Younger doctrine of abstention will not apply in extraordinary circumstances where ———x °° ° ° ° °° a ad ed 0 a be ERIE tied tog A-11 there will be great, immediate and irreparable harm if the federal court does not intervene. Further I concluded that in the situation of a Pullman abstention, the abstain- ing federal court should retain jurisdiction and may. while the state proceedings are being completed, grant such interim injunctive relief as may be necessary to insure the protection of federal rights. Upon granting the preliminary injunction referred to above I abstained on both Younger and Pullman grounds pending completion of the State court action. As a general rule, when a federal court concludes that it is required to abstain on Younger grounds, it will dismiss the complaint, requiring the parties to pursue their remedies and argue their federal claims in the state court proceeding. Occasionally, however, instead of dis- missing the complaint in a Younger situation, the federal court will stay the federal proceeding, reserving jurisdic- tion to grant such relief as may be required upon com- pletion of the state proceeding. Williams v. Red Bank Bd. of Ed., 662 F. 2d 1008, (3d Cir. 1981). Both sides appealed the order granting injunctive relief in part and denying such relief in part. The Court of Appeals resolved the State’s Younger abstention arguments on different grounds from those upon which I relied. The majority opinion did not find that “extraordinary circumstances” called for an excep- tion to Younger abstention. Rather, it concluded that the Younger doctrine was simply inapplicable because there were parties in the federal action (churches, parents. students and a teacher) who were not parties to the State action and who had separate interests of their own. “|. . nonparties to the state enforcement proceed- ings who assert independent constitutional interests may advance those interests in a separate federal action. Since the interests of any of these plaintiffs alone are sufficient to justify the Court’s consideration of the ap- plication for a preliminary injunction, that order cannot be reversed on the chief ground the Board advances, A-12 absent a very great extension of the Younger rule . . . Shelton II, 654 F.2d at 881. Thus, to the extent that Shelton I ruled that the stay of proceedings after issuance of the preliminary injunc- tion was based on Younger grounds, its reasoning must be considered to have been rejected by the majority opinion in Sheltoz II. On the other hand, the Court of Appeals upheld the Pullman type stay with retention of jurisdiction to con- sider further relief when the State court had construed the statutes and regulations. While the federal action was pending before the Court of Appeals, the State court action was tried and decided in the Chancery Division of the New Jersey Superior Court in June, 1980. At that trial Shelton Col- lege presented and argued its federal and constitutional claims. The State plaintiffs in that case had abandoned their original position that Shelton College could rot teach or advertise without the imprimatur of a state license and simply sought a ruling that Shelton College could not grant degrees or call itself a college without such a license. The State trial court held that the insti- tution was entitled to designate itself a college, but further held that the State licensing statutes precluded Shelton College from granting degrees in New Jersey without a license from the State Board of Higher Edu- cation and that such a requirement did not violate the United States Constitution. After the decision in that case and after the decision of the Court of Appeals in Shelton II, but before the decision of the New Jersey Supreme Court, I issued the Shelton III opinion in which I enjoined the State Board of Higher Education from enforcing the order of the Superior Court until such time as the New Jersey Su- preme Court definitively construed the applicable New Jersey statutes and regulations. In August, 1982 the New Jersey Supreme Court definitively construed the statute and regulations in a A-13 comprehensive opinion referred to above. The Court declined to follow the route that the United States Su- preme Court followed in NLRB v. Catholic Bishops of Chicago, 440 U.S. 490 (1979). There the Court avoided the difficult question whether application of the National Labor Relations Act to lay teachers employed by paro- chial schools violated First Amendment religion clauses by holding that the Act did not apply to religious schools. The New Jersey Supreme Court, on the other hand, concluded the New Jersey Statute, NJSA 18A:68-3 and NJSA 18A:68-6, by their clear language and obvious’ intent applied to religious as well as’secular colleges. Having so concluded, the Court turned to the constitu- tional question whether the application of the statutes to Shelton College unconstitutionally infringes upon plain- tiffs’ free exercise of their religion. The Supreme Court assumed for the purposes of that case that plaintiffs’ religious beliefs prohibited Shel- ton College from applying for and obtaining licensure by the New Jersey Board of Higher Education. That was a generous concession to the plaintiffs. The evidence clearly establishes in both the State case and in the federal case that in the past plaintiffs had no compunc- tions about applying for licensure in New Jersey and Florida. This assumed article of faith will be found nei- ther in the Institutes of the Christian Religion nor in the Westminster Confession nor in the Larger Catechism nor = the Shorter Catechism. It derives from more recent inspiration. The New Jersey Supreme Court nevertheless ac- cepted plaintiffs’ position in this regard and it recognized that the New Jersey licensing statutes as applied to Shelton College imposed some burdens on the exercise of religion. However, it found that the legislation sup- ports strong State interests, namely, maintenance of the integrity of the baccalaureate degree in protecting stu- dents as potential consumers of higher education. It further found that granting a religious exemption from A-14 licensing would significantly hinder attainment of these State interests and thus application of the statute to Shelton College does not constitute an abridgement of the Free Exercise Clause of the First Amendment. The Supreme Court further concluded that the stat- utes have a secular purpose and their primary effect neither advances nor inhibits religion and thus avoids excessive entanglement with religion. It is in the discussion of this issue that one discerns how far removed is the position of the New Jersey Supreme Court from the original position of the New Jersey State Board of Higher Education which precipi- tated the federal litigation. The original position of the State Board, which was accepted in the first instance by the Superior Court, was that Shelton College, not having obtained a license, must be shut down in toto and prohibited from teaching secu- lar or religious subjects and prevented from publicizing its existence and its teachings. The State Board in its administration of the licensing statutes exhibited total unawareness of First Amendment rights. It was this circumstance which necessitated federal court interven- tion. Were the statutes and regulations to be adminis- tered in the spirit originally manifested by the State Board, there is little doubt but that they would have had to have been declared unconstitutional in their applica- tion if not on their face. Neither party in the present proceeding, however, has emphasized sufficiently the totally different ap- proach to the statutes and regulations taken by the Supreme Court. The Court was fully aware of the deli- cate balance that must be struck between compelling state interests and the exercise of religious faith. Its opinion made it very clear that the licensing statutes, as they are applied to religious institutions, are to intrude as little as possible upon the functioning of such institu- tions. The pertinent paragraphs of the opinion can only be construed as a gentle but unmistakable directive to iad nt Pe aw A-15 the State Board to apply the statutes and regulations in a manner that will result in as little intrusion upon religious colleges as possible. Quoting from the opinion: “The establishment clause permits minor unobtrusive State supervision of religiously oriented schools. Only excessive entangle- ment is proscribed. None of the education statutes or regulations here in question mandate active involvement of the sovereign in religious activity. None authorize the state regulation of the contents of an educational pro- gram, nor does the regulatory scheme on its face require comprehensive, discriminating and continuing state sur- veillance. Although the regulations in this area, NJAC 9:1-1 to 2.14 appear to be burdensome, especially as applied to a college of approximately 30 students, they explicitly call for flexibility of their administration so as to accommodate various institutions with diverse educa- tional goals, NJAC Title IX, Forward. “Because Shelton College declined even to complete the licensing process, the allegation of excessive en- tanglement rests on speculation of the manner in which those statutes and regulations might be applied. Al- though one could imagine an unconstitutional applica- tion of its regulatory scheme, we are confident the Board of Higher Education will pursue the least restrictive means to achieve the State’s overriding concerns.” 90 N.J. 488 to 490 (citations omitted). On this basis the Court concluded that the statutes and regulations did not create excessive state entangle- ment with religion. Thus plaintiffs, by virtue of their litigation in the State and federal courts, have effected a very profound change in the manner in which the State Board will deal with religious colleges in the future. It is the State’s argument that both the statutory interpretation and constitutional holdings of the New Jersey Supreme Court are binding in the present federal action. A-16 Generally the principles of res judicata are appli- cable in federal Section 1983 cases, that is, parties to the Section 1983 action will be bound by determinations against them on issues decided in the state court pro- ceedings. Allen v. McCurry, 449 U.S. 90 (1980). However, the Court of Appeals held in Shelton II that the federal abstention in this case to allow comple- tion of the State court proceeding is not a Younger abstention, but rather properly a Pullman abstention. In the case of such an abstention, the federal court stays its hand in order to give the state courts an oppor- tunity to decide state law questions, the determination of which may make it unnecessary to reach the constitu- tional question. Thus in the present case had the New Jersey Supreme Court construed the licensing statutes to exclude religious colleges, it would have been un- necessary to have dealt with the constitutional issue. In a Pullman abstention situation the federal plain- tiffs are entitled to have their federal claims decided in a - federal court once the state law claims are resolved in the state court. However, this right will be lost if a litigant unreservedly litigates his federal claims in the state court. If he does that the may not return to the federal court to relitigate his federal claim there. England v. Louisiana Medical Examiners, 375 U.S. 411 (1964). In the present case Shelton College did litigate its federal claim in the state courts without reservation. Its belated effort in the New Jersey Supreme Court to re- serve those claims for the federal court hardly suffice to overcome the England rule. Were the College the only plaintiff in the federal case. I believe it should be held to be bound by the New Jersey Supreme Court decision. However, the College is not the only plaintiff in the federal action. For the same reasons that the Court of Appeals held in Shelton II that Younger principles were not applicable, I conclude that the principle of res judi- cata should not preclude the plaintiffs who appear only a le eo ribhahaatts Naas san Wichita A-17 in the federal action from seeking a ruling on their federal claims in this court. First Amendment Religion Claim Issue It is necessary, therefore, to determine whether the New Jersey licensing statutes, as construed by the New Jersey Supreme Court, violate plaintiffs’ First Amend- ment religious rights. The underlying facts are set forth in Shelton I, II and III. There can be no question that Shelton College is a religious institution in all phases of its activities. Plain- tiffs, therefore, have stated a religious liberty claim, e.g., United States v. Ballard, 322 U.S. 78 (1944). It is quite likely that Shelton College will not be able to survive if it is unable to grant baccalaureate degrees. In the light of the New Jersey Supreme Court decision, however, it is not at all certain that Shelton College would be unable to obtain a license to grant such degrees if it applied for such a license. Unlike the New Jersey Supreme Court, I do not assume the members of the Bible Presbyterian Church and related fundamentalist religious groups are forbidden by their faith to permit their colleges to apply for state licensing. The evidence in this case is to the contrary. Therefore, the question is not whether Shelton College is being forced to do something its religious tenets forbid. The question is whether the statute and regulatory scheme involve an impermissible intrusion by the State into the affairs of a religious institution. Given the generally undisputed facts in this case, it must be determined whether the impact of the State’s statutes and regulations upon the religious interests of the plaintiffs can be justified by a compelling state in- terest in the regulation of a subject matter within the State’s constitutional power to regulate. Sherbert v. Verner, 374 U.S. 398 (1963). Plaintiffs urge that the conditions for licensure im- posed by the New Jersey statutes and regulations would A-18 impose impermissible burdens upon plaintiffs’ religious liberties. I refer to these burdens at some length in Shelton Ill, 514 F. F.Supp., 512 to 513. Plaintiffs note that the requirements contained on the Standards for New Jersey Institutions of Higher Learning are not specific in nature. Rather, they are written in very gen- eral terms leaving broad discretion to the agency and persons administering the licensing program. This, plaintiffs argue, opens the way for total State regulation of Shelton College’s religious ministry. Defendants, on the other hand, urge that this very flexibility of the regulations makes it possible for the administrators of the licensing program to adapt the regulations and standards to particular circumstances of a religious institution. The conclusion to be drawn is that whether this licensing program impinges on religious liberties will depend upon the manner in which the program is ad- ministered. Were the original attitude of the State Board of Higher Education to guide the administration of the licensing program to prevail, one might well have cause for concern that Shelton College’s religious mission would be impermissibly affected. However, the New Jersey Supreme Court opinion not only demonstrates complete awareness of the need to accommodate the administration of the statutes and regulations to the religious purposes of the College, it also constitutes a gentle but firm direction of the Board of Higher Educa- tion to pursue the State’s concern with these religious considerations in mind. The Court noted that “Should the Board exercise its discretion in a manner that un- necessarily intrudes into Shelton’s religious affairs, the college would then be free to challenge the constitution- ality of such action.” 90 N.J. at 490. In light of the Supreme Court's opinion I think it is inconceivable that the State Board would seek to modify in any way any statement of purpose which Shelton . = 3 § - a A-19 College sets forth in a license application or attempt to judge the appropriateness or lack of appropriateness of such purpose. Further, I think one would now expect the Board to make every effort to accommodate its re- quirements to the religious beliefs and practices of Shel- ton College and of its students, parents and teachers. Much of the testimony and other evidence in the State and federal court proceedings related to the ques- tion of whether the State of New Jersey has a compelling State interest in regulating the granting of degrees. Plaintiffs urge that no such interest exists. They urge that the quality of a bachelor’s degree or of any other degree is dependent upon the quality of the institution granting the degree, not upon State regulations. They noted the depreciation of the integrity of the degree, a factor to which I alluded in Shelton III, 514 F.Supp.. 514. However, even plaintiffs’ witnesses attested to the importance of maintaining the quality of higher educa- tion and the degrees evidencing attainment of such education. It is a subject in which the State has a compelling interest. Even though the imposition of li- censing requirements has not assured uniformly high quality education in all institutions of higher learning, the State is certainly justified in pursuing that goal. The extent to which the attainment of this goal would be jeopardized by absolute exemption of religious colleges from any form of degree licensing requirements is illustrated by the case of State ex rel McLemore v. Clarksville School of Theology, 636 S.W. 2d 706, (Sup. Ct. of Tenn. 1982). The Clarksville School of Theology, a totally religious institution, had not complied with the requirements of the Tennessee Higher Education Com- mission promulgated pursuant to statutory authority. The Attorney General brought an action to enjoin the school from granting degrees until it met the require- ments of the statute. A-20 The evidence established that for a bachelor’s degree an applicant must first have faith, second, be a pastor or evangelist, and third, must complete a “synthetic” Bible study and write a thesis of 30,000 words. A bachelor of theology degree cost $25 at enrollment, $320 tuition, and $30 for a cap and gown. Students were required to attend only three seminars, that being the only class- room attendance required. Without the granting of de- grees, the students at the institution would not have attended. The School defended the case on very much the same grounds that Shelton College advances here. The Tennessee Supreme Court held the granting of degrees is purely a secular activity, and that was the only activity the State sought to regulate, leaving the school free to believe, practice and teach as it thought fit. It found neither a burden upon the free exercise of religion nor a threat of entanglement between the affairs of church and state. If the award of a degree is to have any significance whatsoever, criteria such as those established by Clarks- ville School of Theology cannot be permitied to serve as a basis for a degree. Even more bizarre examples of degree criteria can be conjured up if religious institutions are totally ex- empted from all regulations of degree granting activities. I believe the State does have a compelling interest in preventing the impairment of minimum standards for the granting of degrees and protecting the gullible and the unwary. True, the licensing process imposes some burden on a religious institution such as Shelton College which conducts its educational program in a manner which qualifies its students for a degree in the traditional sense. However, in light of the manner in which the New Jersey Supreme Court has directed that the statute and regulations be applied to a religious college, | conclude the burden is not undue. A-21 Further, in light of the New Jersey Supreme Court’s directions in this regard, it cannot be held that the statutes and regulations on their face involve an undue entanglement with religion within the principles of Walz v. Tax Commission of New York, 397 U.S. 664 (1969), and Roemer v. Maryland Board of Public Works, 426 U.S. 736 (1976). It is possible, of course, that the licens- ing scheme could in fact be administered in a manner which would intrude unduly upon religious matters, but it should not be assumed the State Board will disregard the directions of New Jersey’s Supreme Court or that the Courts would fail to rectify the situation if it did. CONCLUSION This case has run a long course. At the outset the New Jersey Board of Higher Edu- cation sought to enforce New Jersey’s degree licensing statutes and regulations by shutting down Shelton Col- lege and preventing it from teaching and advertising. It had obtained a state court order to that effect. In light of the Board’s lack of awareness of funda- mental constitutional rights evidenced by the sanctions it sought, it takes only a little imagination to predict the manner in which the Board would have applied the licensing statutes and regulation to Shelton College at that time. One could safely have predicted that the Board would have been unaware of the great care which would have been required to avoid impinging upon the reli- gious liberties of the plaintiffs. The plaintiffs prevailed at the outset in the federal action obtaining a preliminary injunction restraining the Board from shutting down the College and from limiting its rights to advertise its activities. In several respects plaintiffs have prevailed in the State courts. Both the trial court and the Supreme Court recognized that on both statutory and constitutional grounds the State lacks the power to shut down Shelton A-22 College or to limit in any way its teacning or religious activities. All the State has the power to do is to prohibit Shelton College from granting degrees unless it com- plies with the licensing program. Although the New Jersey Supreme Court held that the statutes and regu- lations apply to religious institutions, it made it abun- dantly clear that in administering the statutes and regu- lations the State Board must take into account and accommodate plaintiffs’ religious beliefs and practices. Thus, one can confidently expect that the State Board’s administration of the licensing program will reflect these directions. in light of these developments the preliminary in- junction issued in this court is no longer required and will be vacated. In light of my conclusion that New Jersey may regulate the granting of degrees by religious colleges in a manner specified by the New Jersey Supreme Court, further relief in the federal action will be denied. Judg- ment will be entered for defendants without costs. Notwithstanding the entry of judgment for defend- ants, plaintiffs are clearly the prevailing parties for the purposes of the Civil Rights Attorney’s Fee Award Act, 42 U.S.C. Section 1988. They succeeded in obtaining relief on the merits in the form of a preliminary injunc- tion preventing the State from closing Shelton College and ordering it to cease teaching and advertising. Fol- lowing its obtainment of this relief, plaintiffs were able to persuade the State courts that the State did not have the power to close Shelton College even though is was un- licensed. Further, as a result of plaintiffs’ actions, the New Jersey Supreme Court rendered an opinion which established the State Board of Higher Education obliga- tion to administer the degree licensing statutes and regulations with due regard to the religious nature of Shelton College. Therefore, if the parties cannot agree to an appro- priate amount of attorneys’ fees, plaintiffs should file an A-23 updated application for fees, bearing in mind the prin- ciples set forth in C. Duane Hensley v. Thomas Eck- erhart, 51 U.S. Law Week 4552, (U.S. Supreme Cit. 1983) and N.A.A.C.P. v. Wilmington Medical Center, Inc., 689 F.2d 1161, (3rd Cir. 1982). The defendants will be requested to submit a form of judgment consistent with this opinion. All right. Thank you very much. That will resolve it. A-24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY NEW JERSEY-PHILADELPHIA : Civil No. 79-3341 PRESBYTERY OF THE BIBLE PRESBYTERIAN CHURCH, SHELTON COLLEGE, et al., Plaintiffs, : ORDER vU. . NEW JERSEY STATE BOARD OF HIGHER EDUCATION, et al., Defendants. Plenary trial of this matter having been held on January 10, 1983, and post-trial briefs having been sub- mitted, and the court having considered all the evidence and legal arguments set forth by the parties, and it appearing for the reasons set forth in this court’s bench opinion of July 29, 1983, that plaintiffs are not entitled to declaratory or injunctive relief beyond that awarded in this court’s opinion and order.of January 4, 1980, IT IS on this 26th day of September 1983 OR- DERED and ADJUDGED that no further relief being warranted in this action judgment shall be entered for the defendants and the complaint shall be dismissed with prejudice and without costs; A-25 Further ORDERED and ADJUDGED that plaintiffs having prevailed on the merits at the preliminary injunc- tion proceeding after which defendants abandoned cer- tain of their original positions as to the meaning and effect of the New Jersey degree licensing statute, plain- tiffs may make application to the court for an award of attorneys fees pursuant to 42 U.S.C. § 1988 after making a good faith effort to reach agreement with defendants as to an appropriate amount of such award. DICKINSON R. DEBEVOISE U.S.D.J. A-26 APPENDIX C SUPREME COURT OF NEW JERSEY A-138 September Term 1981 THE NEW JERSEY STATE BOARD OF HIGHER EDUCATION and T. EDWARD HOL- LANDER, CHANCELLOR OF THE NEW JERSEY DEPARTMENT OF HIGHER EDU- CATION, Plaintiffs-Respondents, VU. THE BOARD OF DIRECTORS OF SHELTON COLLEGE, GLENN ROGERS and CARL MclI- NTIRE, Defendants-Appellants. Aruged March 8, 1982 — Decided August 9, 1982 On certification to the Superior Court, Chancery Division. William Bentley Ball, a member of the Pennsylvania bar, argued the cause for appellants (Bashaw & Burro, attorneys; Mr. Ball, Philip J. Murren, Kath- leen A. O’Malley and C. Clark Hodgson, Jr., mem- bers of the Pennsylvania bar, of counsel; Keith J. Bashaw and C. Peter Burro, on the brief). Robert A. Fagella, Deputy Attorney General, argued the cause for respondents (Irwin I. Kimmelman, Attorney General of New Jersey, attorney; Erminie L. Conley, Assistant Attorney General, of counsel). Michael F. Spicer submitted a brief on behalf of amicus curiae The Association of Independent Col- leges and Universities of New Jersey (Jamieson, McCardell, Moore, Peskin & Spicer, attorneys; Mr. Spicer and Laura C. Ford, on the brief). ee ee ee ee re A-27 Garrett M. Heher submitted a brief on behalf of amicus curiae Council of County Colleges (Smith, Stratton, Wise & Heher, attorneys; Mr. Heher and Thomas E. Kopil, on the brief). The opinion of the Court was delivered by O’'HERN, bE Two provisions of New Jersey’s education law, N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6, prohibit the conferring of baccalaureate degrees by any institution that has not secured a license from the State Board of Higher Education. We hold that application of these statutes to a sectarian college whose religious doctrine precludes state licensure does not violate the First Amendment. I. Shelton College is an institution of higher education operated by the Bible Presbyterian Church as part of the church’s religious mission. Members of this fundamen- talist Christian church believe that every aspect of their lives, including education, must be governed by their faith. Shelton’s teachers and students believe that their presence at the college is for the purpose of preparing themselves and others to undertake missions that their Lord calls upon them to perform. Religion pervades Shelton College. Every academic subject is taught from a Christian fundamentalist perspective and students must conform their behavior to religiously derived codes of conduct. Shelton College is a school of approximately 30 students, but those who attend it cherish its mission. The procedural pilgrimage of Shelton College to this point of decision began after the school opened opera- tions in New Jersey in the 1950’s under a temporary license issued by the State. In 1965, the State Board of Education passed a resolution proposing to terminate Shelton’s power to confer baccalaureate degrees because the college had failed to comply with certain minimum A-28 requirements. Shelton appealed the Board’s action, chal- lenging the constitutionality of N.J.S.A. 18A:68-3 and N.J.S.A. 18:68-6, the statutes that regulate the award of baccalaureate degrees. Shelton College v. State Bd. of Ed., 48 N.J. 501 (1967) (Shelton I). Specifically, Shelton asserted that (1) any state regulation of baccalaureate degrees abridges the right of free speech guaranteed by the New Jersey and Federal Constitutions; (2) the li- censing statute effected an overbroad delegation of leg- islative power to an administrative agency, in violation of the New Jersey Constitution; and (3) the legislation deprived Shelton of equal protection of law because it contained limited exemptions for institutions that had the authority to confer academic degrees prior to 1887. Id. The Court upheld the statutes against Shelton’s constitutional attacks and affirmed the action of the State Board of Education. Central to the Court’s decision was its discussion of the bachelor’s degree and the State’s interest in preserving the degree’s integrity. Chief Jus- tice Weintraub carefully traced the history of New Jersey legislation relating to the granting of baccalaureate de- grees, and concluded that ... it is the degree, evidential as it is of academic attainment, which especially is an approporiate ob- ject of regulation. . . . “The power to confer academic degrees is to be regarded as distinct and separate from the privilege of being incorporated as an edu- cational institution. The privilege of granting de- grees is very intimately related to the public welfare, and is unquestionably subject to regulation by the State.” [Shelton I, supra, 48 N.J. at 511, quoting Elliott, The Colleges and the Courts (1936) p. 200]. Thus, Shelton I held that the State has a substantial interest in regulating the bachelor’s degree and that it A-29 may constitutionally prohibit the granting of such de- grees by unlicensed institutions. In 1971, after Shelton I and the conclusion of related litigation, In Re Shelton College, 109 N.J. Super. 488 (App. Div. 1970), the State Board of Higher Education revoked Shelton’s temporary license to award degrees in New Jersey. Shelton College moved its operations to Florida where it obtained a license to confer bachelor’s degrees in that state. It has continued to operate there up to the present time and, as late as May 1981, applied to Florida officials for renewal of its license. In February of 1979, Shelton College submitted a new application to the New Jersey State Board of Higher Education, seeking authorization to award baccalaure- ate degrees in Biblical Literature, Christian Education, Elementary Education, Secondary Education, English, History, Business Management, Music Education and Natural Science. Before it secured such authorization, however, Shelton began to offer credit-bearing courses in New Jersey that it represented would lead to a bachelor’s degree. On November 15, 1979, the State Board of Higher Education brought suit in the Superior Court, Chancery Division, alleging that Shelton’s New Jersey operations violated N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6 which prohibit the conferring of degrees or the furnishing of instruction for the purpose of conferring degrees, except by licensed institutions. The State Board sought an injunction restraining Shelton from engaging in any form of educational instruction, offering any cred- its, or granting any degrees until it obtained a license authorizing it to do so. The Chancery Court granted a preliminary injunction to that effect. On November 19, 1979, Shelton College and various students and faculty members instituted an action under 42 U.S.C. §1983 in the United States District Court for the Districi of New Jersey. The federal plaintiffs alleged that application of the New Jersey licensing statutes to Shelton College violated rights guaranteed them by the A-30 First, Ninth and Fourteenth Amendments to the United States Constitution. They sought both declaratory and injunctive relief. The District Court issued a preliminary injunction, enjoining the State from taking any action to prevent Shelton College from engaging in religious teaching or educational activities, or from publicizing or advertising these activities.' Although the court granted partial in- junctive relief to the federal plaintiffs, it abstained from deciding whether the New Jersey licensing statutes ap- ply to religious institutions, such as Shelton College. The District Court stayed the federal action to permit the state courts to resolve this issue. In February 1980, the State Board appealed the District Court’s order to the United States Court of Appeals for the Third Circuit, and the fededral plaintiffs cross-appealed. While the federal appeal was pending, the state court action proceeded to trial in June 1980. At this trial Shelton College presented its federal constitu- tional claims. The Superior Court upheld the constitu- tionality of the licensing statutes as applied to Shelton College and on December 10, 1980 entered a permanent injunction which, among other things, restrained the college from awarding course credits or degrees in New Jersey without a license from the State Board of Higher Education. Shelton filed notice of appeal to the Appellate Division. On April 14, 1981, a divided Third Circuit upheld the Federal District Court’s order granting injunctive relief, and approved the court’s decision to stay further federal proceedings pending completion of the state court action. On May 18, 1981, the District Court entered a revised preliminary injunction that prohibited the State Board of Higher Education from enforcing or implement- ing the Superior Court’s order of December 10, 1980, 1. The Superior Court subsequently modified its preliminary order to conform with the federal court’s preliminary injunction. A-31 “until such time as the Supreme Court of New Jersey definitively construes the New Jersey statutes and regu- lations which are the subject of this action.” New Jer- sey-Philadelphia Presbytery of the Bible Presbyterian Church v. New Jersey State Board of Higher Education, 514 F. Supp. 506, 515 (1981). We directly certified the matter on petition of the parties. ___N.J. ___(1981).? Il. Before addressing the constitutional issues raised by this appeal, we first consider whether N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6 apply to religious institutions such as Shelton College. Read literally, these statutes clearly encompass Shelton College. They require that all insti- tutions — regardless of religious character or affiliation — obiain a license before offering degree programs or conferring degrees. Nonetheless, defendants urge us to adopt a narrowing construction of these statutes — ex- cluding Shelton from their ambit — so as to avoid the constitutional issues that otherwise would emerge. De- fendants suggest that this result could be achieved by employing a standard of statutory construction an- nounced by the United States Supreme Court in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 59 L. Ed. 2d 533 (1979). In that case the court declared that any interpretation of a statute that “would give rise to serious constitutional questions” must be rejected unless the construction is compelled by “the affirmative intention of the Congress clearly expressed.” Id. at 501, 59 L. Ed. 2d 2. We do not pass upon the complex problems of federalism presented by the movements of the parties between state and federal courts. Those issues divided the appeals panel in this case, NJ. Phila. Presbytery v. NJ. State Bd., 654 F. 2d 868 (1981). Cf. Middlesex Ethics Committee v. Garden State Bar Association et al., U.S. (1982) (federal courts should abstain from interfering with ongoing disciplinary proceedings where proceedings provided attorney under investigation with adequate opportunity to present constitutional claims). A-32 at 541. Applving this standard, the Court held that the National Labor Relations Act does not extend to lay teachers employed by parochial schools, even though the act’s general terms include such employees. The Court concluded that application of the National Labor Rela- tions Act to church-operated schools would implicate the Religion Clauses of the First Amendment but that there existed no affirmative expression of legislative intent sufficient to compel the constitutionally troublesome interpretation of the act. Four dissenting justices assailed the Court’s opin- ion, stating that the majoritv had “seemingly invented ...acanon of statutorv construction . . . for the purposes of deciding this case.” The dissent would have adhered to the principle of statutory construction set out in Ma- chinists v. Street, 367 U.S. 740, 6 L. Ed. 2d 1141 (1961): “When the validity of an act of Congress is drawn in question, and even if a serious doubt of constitution- ality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 US 22, 62, 76 L Ed 598, 619. (Id. at 749, 750. 6 L. Ed. 2d at 1150 (emphasis added )}. The dissent concluded that ... {Whhile the resolution of the constitutional ques- tion is not without difficulty, it is irresponsible to avoid it by a cavalier exercise in statutorv interpre- tation which succeeds onlv in defving congressional intent. A statute is not “a nose of wax to be changed from that which the plain language imports. . . .” Yu Cong Eng v. Trinidad. 271 US. at 518. 70 L Ed 1059. 46 S Ct 619. A-33 [NLRB v. Catholic Bishop of Chicago, supra, 440 U.S. at 518, 59 L. Ed. 2d at 552}. Under New Jersey law, a challenged statute will be construed to avoid constitutional defects if the statute is “reasonably susceptible” of such construction. State v. Profaci, 56 N.J. 346, 350 (1970); Woodhouse v. Woodhouse, 17 N.J. 409, 416 (1955). Thus, our standard for construing statutes of uncertain constitutionality closely resembles the principle of construction advo- cated by the dissent in Catholic Bishop. But even if we were to accept the broader standard elaborated by the Catholic Bishop majority, we would still be constrained to find that the New Jersey licensing statutes apply to Shelton College. The Legislature’s intent with regard to these stat- utes is clear and unambiguous. N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6 speak in absolute terms. They prohibit the granting of baccalaureate degrees by any institution that has not secured a license from the State Board of Higher Education. The sole exception to this regulatory scheme appears in N.J.S.A. 18A:68-6. There the Legis- lature expressly exempted institutions that were operat- ing on April 1, 1887 by virtue of special legislative grant. See L. 1912, c. 315; Shelton I, supra, 48 N.J. at 507. No such exemption was created for sectarian colleges. Nor does the legislative history even hint at an intent to exclude religious schools from the scope of these stat- utes. To the contrary, the history of the higher education licensing provisions demonstrates a legislative intent to regulate the conferring of baccalaureate degrees by re- ligious as well as secular institutions. See Id. at 509-16. The first higher education “approval” statute, en- titled “An Act to prescribe the terms and conditions under which degrees may be conferred by any school or institution of learning within this State,” was adopted in 1912. L. 1912, c. 315. This legislation did not, however, A-34 mark the State’s first involvement with the bachelor’s degree. Prior to 1912 the Legislature passed several special acts of incorporation that authorized a number of secular and sectarian institutions to confer baccalaure- ate degrees. Passage of these acts evidenced the Legislature’s belief that even a sectarian college’s power to confer degrees could be conditioned on state authori- zation. There is no reason to infer that the Legislature’s view in this regard changed before passage of L. 1912, c. 315. We must assume therefore that when the Legisla- ture adopted L. 1912, c. 315, it was aware of the exist- ence of religiously oriented colleges. We must also as- sume that the Legislature understood that such institu- tions would come within the literal terms of the statute. Yet, although the act included an express exemption clause, it contained no exemption for religious colleges. Related provisions of New Jersey education law sup- ply further evidence of legislative intent. Thus N.J.S.A. 18A:68-2 provides that seminaries and schools of theol- ogy may grant bachelor’s degrees “subject to the provi- sions of this chapter.” (Emphasis added.) This statute appears in Chapter 68 of the education laws, together with the licensing statutes. The current statutory scheme also confirms that the Legislature affirmatively intended to regulate the con- ferring of degrees by religious institutions. In 1966, the Legislature created a Department of Higher Education, the office of Chancellor of Higher Education, and a Board of Higher Education. L. 1966, c. 302, §§1, 2 (see now N.J.S.A. 18A:3-1, -6, -20). The Board has been given broad authority over the system of higher education in this State. N.J.S.A. 18A:3-13. See, Association of New Jersey State College Faculties v. Dungan, 64 NJ. 338 (1974). Pursuant to N.J.S.A. 18A:3-13, it is the duty of the Board “to advance long-range planning for the sys- tem of higher education as a whole in the State.” (Em- phasis added.) Religious oriented colleges and universi- ties comprise a significant proportion of the institutions a A-35 of higher learning in this State. If such institutions were permitted to reject even minimal state regulation, the legislative intent manifested by these education laws. would be defeated. Finally, the practice relative to N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6 has been to apply the licensing requirements to all degree-granting institutions, regard- less of religious affiliation. The Legislature has acqui- esced in this long-standing practice. This is strong evi- dence that the current application of these statutes con- forms to legislative intent. See, Division ef Taxation v. Body-Rite, ___N.J. ___(1982). In summary, we see no basis to infer that the Leg- islature intended te exempt Shelton College and like institutions from the requirements of N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6. We construe statutes in accord with the Legislature’s intent, even if to do so will give rise to substantial constitutional questions. We hold that N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6 apply to Shel- ton College. III. We turn now to defendants’ claim that application of N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6 to Shelton Col- lege unconstitutionally infringes upon the free exercise of their religion. Decisions in cases such as this regret- tably involve courts in an examination of religious prac- tices and inevitably call for “a delicate balancing of important but conflicting interests.” Wisconsin v. Yoder, 406 U.S. 205, 237, 32 L. Ed. 2d 15, 38 (1972) (White, J.. concurring). In this case we must decide whether the State’s interest in regulating academic degrees constitu- tionally justifies the burden that such regulation may impose on defendants’ freedom to hold and practice their religious beliefs. We begin by determining whether application of the statutory licensing requirements to Shelton College in- A-36 terferes with the free exercise of defendants’ religion. Defendants profess as a principle of their faith that the Bible commands the separation of church and state. Recently, the Bible Presbyterian Church interpreted this religious precept as prohibiting Shelton College from submitting to licensure by the New Jersey Board of Higher Education. We note, however, that defendants did apply for renewal of Shelton’s Florida license subse- quent to their espousal of this scriptural interpretation. Although the First Amendment wisely prohibits courts from questioning the validity of religious beliefs, United States v. Ballard, 322 U.S. 78, 88 L. Ed. 1148 (1944), it does not preclude judicial inquiry into the sincerity of those who claim exemption on religious grounds from a law of general application. Id. Despite defendants’ apparently inconsistent adherence to the asserted religious tenet, however, we decline to inquire into their sincerity on the record before us. Rather, we shall assume, for purposes of this appeal, that licensure of Shelton College would conflict with a principle of defendants’ religion. Accepting this assumption, the Board of Higher Edu- cation nonetheless maintains that application of N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6 to Shelton College does not abridge defendants’ Free Exercise rights. The Board points out that even if enforcement of those statutes against Shelton causes the college to close, no direct interference with religious practice occurs because de- fendants’ religion does not require attendance at Shelton Collge. This argument undervalues the constitutional right to exercise one’s religion freely. The First Amendment guarantee of religious freedom protects against more than direct state proscription of religious practices. See, e.g., Cantwell v. Connecticut, 310 U-S. 296, 84 L. Ed. 1213 (1940). Any state action that unduly burdens the free exercise of religion violates the First Amendment. Thomas v. Review Bd. Indiana Emp. Sec. Div., 450 U.S. A-37 707, 67 L. Ed. 624 (1981); Wisconsin v. Yoder, supra. 406 U.S. at 220, 32 L. Ed. 2d at 28; Sherbert v. Verner. 374 U.S. 398, 404; 10 L. Ed. 965, 970 (1963). Even facialiy neutral legislation may give rise to a burden on religion if, as applied to a particular religious sect. it forces individuals to choose between abandoning their religious beliefs or sacrificing an important government benefit. Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith or where it denies such a benefit because of conduct mandated by religious belief, thereby putting sub- stantial pressure on an adherent to modify his be- havior and to violate his beliefs, a burden on religion exists. [Thomas v. Review Bd. Indiana Emp. Sec. Div.. supra, 405 U.S. at 717-18, 67 L. Ed. 2d at 634). In Thomas a Jehovah’s Witness refused on religious grounds to accept work building weapons. Indiana offi- cials rejected Thomas’ application for unemployment compensation, ruling that he had failed without good cause to accept employment and was therefore ineligible to receive benefits. Thus, Indiana’s unemployment com- pensation law effectively forced Thomas to choose be- tween his faith and financial benefits that he may well have needed to subsist. The Supreme Court held that imposition of this choice violated the Free Exercise clause of the First Amendment. In an analogous manner, N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6 require defendants to choose between a tenet of their religion and the privilege of conferring baccalaureate degrees. Clearly the dilemma that New Jersey’s education law poses for defendants is not as cruel or coercive as was the choice thrust upon Thomas by the Indiana Unemployment Compensation Act. Nevertheless, we must conclude that the New Jersey A-38 licensing statutes, as applied to Shelton College, impose some burden on the exercise of religion. This conclusion does not, however, terminate the inquiry. Not all burdens on religion are unconstitutional. United States v. Lee, ___U.S. ___., 71 L. Ed. 2d 127 (1982). Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645 (1944); Smith v. Ricci, 89 N.J. 514 (1982). Legis- lation that impedes the exercise of religion may be con- stitutional if there exists no less restrictive means of achieving some overriding state interest.* Thus, in United States v. Lee, supra, the Court held that although the Amish believe it sinful not to provide for their own elderly and needy and therefore are religiously opposed to the national social security system, they must never- theless withhold, report and pay social security taxes on their employees. The Court said: The conclusion that there is a conflict between the Amish faith and the obligations imposed by the social security system is only the beginning, how- ever, and not the end of the inquiry. Not all burdens on religion are unconstitutional. The state may jus- tify a limitation on religious liberty by showing that it is essential to accomplish an overriding govern- mental interest. [United States v. Lee, supra, ___U.S. at __ —, 71 L. Ed. 2d at 132 (citations omitted)]. 3. Arecent Federal Court of Appeals decision, Bob Jones Univ. v. U.S., 639 F. 2d 147, 153 (4th Cir. 1980), cert. granted __—iUS.., more fully explicated this standard. Assuming that the revocation of [tax exempt] status does impinge upon the university’s practice to some extent the question remains one of balancing — giving due consideration to the weight of the interests asserted by the government and the extent and nature of the burden on the religious practice and the religion as a whole. A-39 The legislation at issue here advances the State’s interest in ensuring educational standards and maintain- ing the integrity of the baccalaureate degree. Chief Jus- tice Weintraub amply described the depth and impor- tance of this interest from medieval times to the present in Shelton I, supra, 48 N.J. at 510-15. We need not reconstruct that discussion here. That Court’s views may be summarized: Whatever the reason for the modest governmen- tal activity in this area, it was not for doubt as to the power of the States to act. In Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 634, 4 L. Ed. 629, 658 (1819), in which the charter of incorpora- tion was held to be a contract the State could not undo, Chief Justice Marshall said, in axiomatic style: “That education is an object of national con- cern, and a proper object of legislation, all ad- mit.” [48 N.J. at 510-11].4 Shelton’s education expert testified that the bachelor’s degree has been severely devalued by recent trends in education and that therefore the State cur- rently has no significant interest in regulating the award of such degrees. Other educators have earnestly urged the contrary. In their amicus brief to this Court, the 4. The Court recalled that the Supreme Court of Vermont refused to imply in a general charter the power to confer degrees, saying in Townshend v. Gray, 62 Vt. 373, ___, 19 A. 635, 636, 8 A.L.R. 112, ___ (1890): * * *To hold that the legislature, by a general law, in- tended that any three men in any town in the state, however illiterate or irresponsible, might organize and flood the state with doctors of medicine, doctors of law, docivi; uf divinity, masters of arts, civil engineers, and all the other various titles that everywhere in the civilized world have signified high attainments and special equipment for professional work, is to liken it to the witty French minister who threatened to create so many dukes that it would be no honor to be one, and a burning disgrace not to be one. A-40 Association of Independent Colleges and Universities of New Jersey° maintained that “there is a general expec- tation that institutions permitted to award degrees in this State will at least meet basic standards of educational integrity.” Amicus stressed the importance of maintain- ing the value and integrity of academic degrees, and expressed the fear that, if such degrees are permitted to erode in value, “if there no longer can be a presumption of minimum standards — then students, educational institutions and the public will be harmed.” In addition, the legislation supports the State’s pur- pose of protecting students, as potential consumers of higher education, from substandard education. It allows them to assume by virtue of a school’s ability to grant degrees that it meets certain minimum standards. That maintenance of minimum educational stand- ards in all schools constitutes a substantial state interest is now beyond question. See, e.g., Wisconsin v. Yoder, supra; Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745 (1971); Pierce v. Society of Sisters, 268 U.S. 510, 69 L. Ed. 1070 ,1925). Nothing in this record persuades us to the contrary. The Legislature has attached great im- portance to the fulfillment of these goals. We have no doubt of that legislative appraisal and conclude that the New Jersey licensing statutes are supported by a strong state interest in maintaining minimum academic stand- ards and preserving the basic integrity of the baccalau- reate degree. Having reached this conclusion, we must now de- cide whether granting defendants a religious exemption from the licensing statutes would significantly hinder attainment of the state interest. If so, the statutes present the least restrictive means of fulfilling an overriding governmental interest and, as such, do not abridge de- 5. The Association of Independent Colleges and Universities of New Jersey is a membership organization composed of sixteen private nonprofit institutions of higher education. Ten of its member institutions have religious affilations. os) im AR a ta A Psd Tat an Ree CARRE Hey RAMPARTS ae SE LIA ENE Saal tk: alah ae as es A-4] fendants’ rights of religious freedom. U.S. v. Lee, supra, set ae Mh cis Th i ee, Swe 133. In New Jersey, the conferring of a baccalaureate degree connotes that certain minimum standards have been met by the issuing institution, and that the degree recipient has attained at least a basic level of academic proficiency. To this extent the value of academic degrees from New Jersey institutions traces directly to state regulation. Thus, by claiming a complete exemption from all state regulation defendants in effect ask that they be given a benefit without having to accept the correlative burden. In this sense, if the First Amendment requires that Shelton be permitted to confer degrees without a license, it must also require that unemploy- ment compensation be disbursed to individuals who for religious reasons refuse to accept any employment what- soever. Sherbert expressly warned that the First Amend- ment compels no such result. Id., 374 U.S. at 409-10; 10 L. Ed. 2d at 974. Sherbert, Thomis and Yoder all hold that religious exemptions from neutral legislation must be provided where uniform enforcement of the legislation will un- duly impinge upon the exercise of religion. But, as the Court in U.S. v. Lee, supra, recognized, the First Amend- ment does not require the provision of religious exemp- tions where accommodation would significantly inter- fere with the attainment of an overriding state interest. Such a requirement, the Court observed, would “radi- cally restrict the operating latitude of the Legislature.” Id. at___, 71 L. Ed. 2d at 134 (quoting Braunfield v. Brown, 366 U.S. 599, 606, 6 L. Ed. 2d 563, 568 (1961)). Commentators have observed that it is when the reli- gious exercise does “not materially affect the working of the secular program” that the free exercise claim is recognized. Freund, “Public Aid to Parochial Schools,” 82 Harv. L. Rev. 1680 (1969). See also Clark, “Guide- lines for the Free Exercise Clause,” 83 Harv. L. Rev. 327 (1969). Here, accommodation of defendants’ religious A-42 beliefs would entail a complete exemption from state regulation. As noted above, such accommodation would cut to the heart of the legislation and severely impede the achievement of important state goals. Furthermore, if an exemption were created here, Shelton College would receive an advantage at the expense of those educational institutions that have submitted to state regulation. Such a development would undermine the integrity of the baccalaureate degree, erode respect for the state higher education scheme, and encourage others to seek exemp- tions. Thus, the uniform application of these licensing requirements is essential to the achievement of the State’s interests. See Braunfield v. Brown, supra (state interest in uniform day of rest constitutionally justifies refusal to create religious exemptions to Sunday closing law). See also U.S. v. Lee, supra, ___U.S. at ____, 71 L. Ed. 2d at 135-36 (Stevens, J., concurring). In sum, although defendants’ freedom of religion may suffer some indirect burden from this legislation, the constitutional balance nonetheless favors the state interest in uniform application of these higher education laws. As the U.S. Supreme Court noted, When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. ius. v. Lee, cupre, 0S. & ., 71 L. Ed. 2d at 134-35]. We conclude that N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6 2s applied to Shelton College do not abridge rights guaranteed by the Free Exercise Clause of the First Amendment. The Establishment Clause requires that a law reflect a secular legislative purpose, have a primary effect that A-43 neither advances nor inhibits religion, and avoid exces- sive entanglement with religion. Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 63 L. Ed. 2d 94 (1980); Committee for Public Education v. Nyquist, 413 U.S. 756, 37 L. Ed. 2d 948 (1973); Marsa v. Wernik, 86 N.J. 232 (1981); Resnick v. E. Brunswick Tp. Bd. of Ed., 77 N.J. 88 (1978). The secular purpose of the State’s program for higher education is unassailable. Defendants assert, however, that this reguiatory scheme creates an excessive state entanglement with religion. The United States Supreme Court has never ques- tioned a state’s interest in insuring, through licensure or accreditation, minimal academic standards in church- operated institutions.® See, e.g., Pierce v. Society of Sis- ters, supra. As stated in Lemon v. Kurtzman, supra: We... have surveillance over sectarian schools but only to the extent of making sure that minimum educational standards are met, viz, competent teach- ers, accreditation of the school for diplomas, the number of hours of work and credits allowed, and so on. ... Any surveillance to date has been minor and has related only to the consistently unchallenged 6. Some state courts have invalidated comprehensive state licensing or approval powers over private religious schools where, as one court said, the minimum standard scheme was “so pervasive and all-encompassing that total compliance with each and every standard by a non-public school would effectively eradicate the distinction between public and nonpublic education.” State v. Wis- ner, 47 Ohio. St. 2d 181, 351 N.E. 2d 750 (1976). See also, Kentucky State Board for Elementary and Secondary Education v. Rudasill, 589 S.W. 2d 877 (Ky. 1979), cert. denied, 446 U.S. 938 (1980) (court based its decision on section 5 of the Kentucky Constitution, which states shat “[n]o man [shall] be compelled to send his child to any school to which he may be conscientiously opposed. . . .”); State v. LaBarge, 134 Vt. 276, 357 A. 2d 121 (1976) (truancy). But see Bob Jones University v. United States, supra, and Brown v. Dade Christian Schools, 556 F. 2d 310 (5th Cir. 1977), cert. den., 434 U.S. 1036, where religious belief in racial discrimination conflicts with governmental policy. A-44 matters of accreditation of the sectarian school in the State’s school system. [403 U.S. at 631, 29 Lyfd. 2d at 766 (Douglas, J., concurring) (emphasis supplied)]. The Establishment Clause permits minor, unobtrus- ive state supervision of religiously oriented schools. Roe- mer v. Maryland Public Works Bd., 426 U.S. 736, 49 L. Ed. 2d 179 (1976). Only excessive entanglement is pro- scribed. None of the education statutes or regulations here in question mandates “active involvement of the sovereign in religious activity.” Walz v. Tax Commis- sioner, 397 U.S. 664, 668; 25 L. Ed. 2d 697, 701 (1970). None authorizes state regulation of the content of an educational program. Nor does the regulatory scheme on its face require “comprehensive, discriminating and con- tinuing state surveillance.” Lemon v. Kurtzman, supra, 7. In order to determine the nature of an institution, the State Board requires a statement of educational purpose, N.J.A.C. 9:1-1.2. The institution is then required to show that its various elements (faculty work, educational program, student life, finances, physical plant, organization and administration) are organized in a way supportive of this purpose. N.J.A.C. 9:1-1.2(b)(2). The institution must develop a long-range plan for implementing its goals, as well as periodically review its purpose and plans. N.J.A.C. 9:1-1.2(b)(3),(4); N.J.A.C. 9:1-1.3(a)(1). It is also required to con- duct its affairs in a financially prudent manner, for its own protec- tion and the protection of its students, creditors and other citizens. N.J.A.C. 9:1-1.4. The maintenance of legitimate financial records and insurance protection are intended to “assure the continuity of the institution.” See N.J.A.C. 9:1-1.4(b). The regulations also rec- ognize the importance of an adequate library. N.J.A.C. 9:1-1.8. There are suggested standards for admission to the institution. For example, the regulations propose that normally a high school di- ploma should be required. N.J.A.C. 9:1-1.9(b)(1). Adequate and safe physical facilities are also required. N.J.A.C. 9:1-1.10. In any areas where standards are proposed, however, no rigid mandates are maintained. Paragraph 5 of the Foreword to Title 9 of the New Jersey Administrative Code expresses this policy: The standards specify desirable and acceptable practices which further implement the good intentions of the law but are ene te ai att SAS Din ae atin arent Diario theta eda aren us FO cae A-45 403 U.S. at 619, 29 L. Ed. 2d at 759. Although the regulations in this area, N.J.A.C. 9:1-1 to -2.14, appear to be burdensome, especially as applied to a college of approximately 30 students, they explicitly call for flex- ibility in their administration so as to accommodate vari- ous institutions with diverse educational goals.* N.J.A.C., Title 9, Foreword. Because Shelton College declined even to complete the licensing process, the allegation of excessive entanglement rests on speculation about the manner in which these statutes and regulations might be applied. Although one could imagine an unconstitu- tional application of this regulatory scheme, we are con- fident that the Board of Higher Education will pursue the least restrictive means to achieve the State’s overrid- ing concerns. Of course, should the Board exercise its discretion in a manner that unnecessarily intrudes into Shelton’s religious affairs, the college would then be free to challenge the constitutionality of such action. At this juncture, however, we need not invalidate these statutes merely because they may be amenable to an unconsti- tutional application. . It has not been the Court’s practice, in consid- ering facial challenges to statutes of this kind, to strike them down in anticipation that particular ap- plications may result in unconstitutional [action]. not required in a specific form so that institutional flexibility may be maintained. . . . 8. The licensing procedures also engender a high degree of flexibility. Pursuant to N.J.A.C. 9:1-2.4 the Licensure and Approval Advisory Board is composed of seven representatives from various state and county colleges and universities, three representatives of the Association of Independent Colleges and Universities in New Jersey (AICUN!), three persons representative of colleges not mem- bers of AICU NJ and one representative of the Department of Higher Education. The Board makes recommendations to the Chancellor regarding policies for licensure and specific petitions for licensure. N.J.A.C. 9:1-2.7. Participation in the licensing process by this di- verse group representing both public and private institutions, seeks to ensure practicality in the administration of the program. A-46 [Roemer v. Maryland Public Works Bd., supra, 426 U.S. at 761, 49 L. Ed. 2d at 196}. See Village of Hoffman Estates v. Flipside Hoffman Estates Inc., ve. : L. Ed. 2d (1982); I/M/O Application of Maria Martin, N.J. (1982). V. In sum, we find that the State’s program for licens- ing institutions of higher education is applicable to sec- tarian institutions and that facially it does not unduly interfere with the free exercise of religion nor create an excessive state entanglement with religion. At the same time, we recognize the good faith with which the stu- dents of Shelton College have pursued their educational and religious goals. To accommodate the free exercise interests of the individual students without unduly in- terfering with the state regulatory program, and in con- sideration of the difficulty involved in transferring to a different college at the end of three years, we modify the judgment below to allow the awarding of earned credits and degrees to all eligible students through the end of the 1982-83 academic year and to the class of 1984 through the end of the 1983-84 academic year. No other credits or degrees shall be awarded without licensure. As modified, the judgment of the Chancery Division is affirmed. Chief Justice Wilentz and Justices Pashman, Clif- ‘ford, Schreiber, Handler and Pollock join in this opinion. A-47 APPENDIX D Second Opinion and Order of the United States District Court for the District of New Jersey, dated May 18, 1981 UNITED STATES DISTRICT COURT District oF New JERSEY Civil Action No. 79-3341 > > a NEW JERSEY-PHILADELPHIA PRESBYTERY OF THE BIBLE PRESBYERTIAN CHURCH; SHELTON COLLEGE, A Ministry of Bible Presbyterian Church; BIBLE PRESBYTERIAN CHURCH OF COLLINGS- ‘ WOOD, NEW JERSEY: KEVIN WILSON, BRAD GSEL, KEVIN CLAIR MICHAEL, CURTIS JORDAN BASHAW, LOUISE OLSON and EVERETTE CHAR- LES OLSON, Plaintiffs, Lf NEW JERSEY STATE BOARD OF HIGLER EDUCA- TION; T. EDWARD HOLLANDER, Chancellor of New Jersey Department of Higher Education; RICHARD D. BRESLIN, oa = (3) That the Court preliminarily and perma- nently enjoin the defendants from applying the aforesaid statutes and regulations to the religious educational ministry which is Shelton College; z o e The district court ordered that the defendants be en- joined from taking, or permitting the taking of, any ac- tion designed to have the effect of or preventing Shelton College (a) from engaging in any educational activities or in any religious teaching; (b) from publicizing or advertising such activi- ties, or (c) from certifying to a student the satisfactory completion of work in a course or other educational activity through awarding that student a credit therefor. Thus, Shelton and the other federal plaintiffs ob- tained relief designed to prevent enforcement against Shelton’s managing body in the pending state proceed- ing of either the state licensing scheme or the prelimi- nary state-court order.® For this reason, the federal pro- 6. It is from this relief that the Board appeais. It is to this relief that the majority adverts when it concludes, in Part IV, that the dis- A-130 ceeding squarely implicated Younger principles. Given this undisputed set of facts. the presence of additional parties in the federal action could not, in itself, obviate the need for the district court to consider dismissal. The rule in Younger v. Harris is designed to “permit state courts to trv cases free from interference by federal courts.” 401 U.S.. at 43. particularly where the party to the federal case may fully litigate his claim before the state court. Plainly, “|t]he same comity considerations apply,” Allee v. Medrano, 416 U.S. 802. 831 (1974) (Burger, C.J.. concurring). where the interference is sought bv some, such as appellees, not parties to the state case. Hicks v. Miranda, 422 U.S. at 349 (emphasis sup- plied).’ Nevertheless. portions of the preliminary relief awarded by the New Jersey court imposed irreparable harm sufficiently “great and immediate” to warrant fed- eral interference even under the narrow exception to the policy of judicial nonintervention set forth in Younger itself. In announcing its alternative rationale for reach- tmct court committed no error. Thus 1t is the propriety of this relief that forms the crux of the Younger issue on this appeal. The interests of the tederal-onlv plaintiffs in this case mav or may not fail within the category of interests sufficiently “inter- twined.” 422 U.S. at 348-49. with those of Shelton to require Young- er dismissal on the basis of a simple applicauon of Hicks alone. But see Bickham v. Lashof. 620 F.2d 1238. 1243-45 (7th Cir. 1980) However, 1n light of the circumstances discussed fully below it 1s unnecessary to rely on Hicks alone in order to conclude that. with regard to the relief at issue in the Board's present appeal. Younger pmnciples were as applicable to the tederal-onlvy plaintiffs as thev were to Shelton. 8. Younger teaches that there is a narrowly circumscribed class of “extraordinary circumstances in which the necessarv irrep- arable injurv can be shown” that would warrant federal interterence in pending state proceedings. 401 U.S. at 53. Identification of such “unusual situations.” id. at 54. calls for an exercise of equitable dis- cretion. albeit a discretion circumscnbed bv “Our Federalism.” /d. at 44. The distnct court 1n this case entered its order because failure BEST AVAILABLE COPY ws spat an SD ip ECS We GO ol hls A ta eit has. / ahs tte ap | praetor hip ALA EOP A-131 ing the same result. however. the majority here fashions a rule that goes beyond anything to be found in Doran v. Salem Inn, Inc., and Steffel v. Thompson, the cases upon NOTE 8 — (Cuntinued ) to award any relief would mean that "|b/v state hat a religious com- munity will be destroved.” 482 F. Supp. at 974. Operating solely within the narrow confines of equitable discretion that compnse Younger's self-contained excepuom. the district court granted relief to “prevent the immediate irreparable violation of plaintiffs’ consti- tutional rights." /d. at 979. Given the absence of any reason to be- lieve that its findings are clearly erroneous. | find no abuse of discre- uon in the district court's conclusion that because some of the rights impaired by the preliminary injunction of the state court were so important, and the: threatened injurv to those nghts so irretnev- able, plaintiffs have stated a cause of action within the confines ot the Younger exception for “both great and immediate” irreparable harm. 401 U.S. at 46. As the district court put it. this was a case in which, at least with respect to some of the requested relict. the Younger and Pullman doctrines “must give wav." 482 F Supp. at 978. No mention is made by the district court of any reason why dis- tinctions among the interests of the multiple parties in this case made Younger inapplicable. This absence is telling in the face of the majority's assertion that, for purposes of ail the relief at issue in this case, departure from Younger was required by the existence of such separate interests. Even under the majority's legal theory. there must be a heavy factual component to the issue whether, as to any particular type of reliet, the relevant interests are so separate as to tender Younger inapplicable. C/. County of ]mperial v. Munoz. 49 U.S.L.W. 4005, 4007 (Dec. 2, 1980) (remanding for factual deter- mination of whether federal-only plaintiffs were “strangers” to the State-court suit); Allee v. Medrano, 416 U.S. at 832 n.8 (Burger. C.J., concurring) (“There is no need now to attempt to further define those situations in which it would be proper to impute the state criminal prosecution of one who is not a federal plaintiff to one who is. The association of the state criminal defendant and the fed- eral plaindff necessary for imputation will depend upon tacts of joint activity and common interest."). Because the district court rendered its decision without recourse to the majeritv’s legal theory. it would appear that under the majority's theory at most a remand is appropriate, not affirmance. A-132 which it relies. For the majority effectively holds that future state-court defendants whose federal injunctive suits are barred by Younger need only add to their feder- al complaint new parties who have separate interests, in order to obtain exactly the same relief that Younger would otherwise bar. Thus, the new parties can now as- sert not only their own rights in a federal court proceed- ing; they may also bar the state plaintiff from litigating these same issues against the original state defendant in State court, under threat of contempt sanctions in the federal court. '° 9 I recognize that the majonty would have its opinion read oniv for the uncontroverted propositions that (a) the federal-only plaintiffs have, in some significant sense. interests distunct from Shelton, and (b) that separateness is sufficient to satisfv the test for entertaining a federal proceeding not directed toward interfering in a pending state proceeding. Unfortunately. this appeal does not em- body a dispute whose resolution can be reached by application of those proposiuons alone. See minority tvpescmpt op. at 4 n.6. supra. 10. The majority's opinion directs that Younger considerations be eschewed whenever a state-court defendant asks a federal court to restrain pending state litigation against him, so jong as he adds a new plaintiff to his federal complaint, one who is interested in af- fecting the outcome of the original state proceeding and who may have sufficiently distinct interests to meet the Doran tesi in a hypo- thetical separate suit (i.e., a federal proceeding that would not be aimed at directly interfering in the pending state proceeding). | be- lieve such a proposition must be rejected. However, what the major- itv holds is a different matter. because the facts upon which it af- firms the district court are narrower. The majority's holding is an affirmance, on its multiple-partv separate interest theory. of a feder- al injunction directed at preventing the Board from enforcing a pre- liminary order arising out of the then-pending Supenor Court pro- ceeding. Insofar as interference with other tvpes of state enforcement action is not here enjoined. much of what the majonty says can be characterized as dictum. Characterization as dictum fails to neutralize the tundamenial problem with the majority's opinion, however. because application vel non of the majority's legal rule does not turn on any factual pe- culiarities unique to this case. For instance. at typescript 36-37. the majority implicitly holds that Younger considerations are inapplica- bith tal Mie Ce. AV aT Ra aes ce eae LISS oe, pleats iti 3 le tn ar in aes com EET bb “Aare tae cca Sint bilo A-133 In Doran the Supreme Court reversed the grant of a preliminary injunction to a tavern operator, M & L Res- taurant, Inc., which had chosen to challenge the consti- tutional validity of a town ordinance first by filing a suit for federal injunctive and declaratory relief. and then. before obtaining preliminary federal relief. by violating the ordinance and subjecting itself to criminal prosecu- tion in the state courts. M & L was one of three federal plaintiffs all] seeking the same relief. However. the other two, Salem Inn, Inc., and Tim-Rob Bar, Inc.. refrained NOTE 10 — (Continued » ble to any part of the federal complaint. Nor can applicauon of the majonity'’s rule be specially justified. as the majonty suggests at typescript op. at 21, on the basis of the prospective effect of the state-court's order. There is no basis in Younger junsprudence for the majonty’s attempt to posit a ngid distuunction between (a) cases such as this, where the federal plaintiff seeks to enjoin the restrain- ing effect of the pnor state-court order on future acts. or future en- jyoyment of federal mghts. and (b) other cases where the federal plainuff seeks to enjoin the retribuuve effect of state-court proceed- ings previously initiated due to past acts that occurred pnor to the filing of the federal complaint. See Moore v. Sims, 442 U.S. 415 (1979) (Younger dismissal was called ior even though federal reliet was issued only after the pendente lite state-court order had already deprived the federal plainuff of child custody): Trainor v Hernandez, 431 U.S. 434 (1977) (reversing and remanding. for consideration in light of Younger, a tederal injunction directing the return of property that had alreadv been seized pursuant to a pendente lite state-court order): Huffman v. Pursue. Lid.. 420 U.S. 592 (1975) (vacating and remanding, for considerauon in light of Younger, a federal injunction enjoining the execuuon of a state court order closing a theater). Cf. Atlanuc Coast Line R.R. v. Broth- erhood of Locomouve Engineers, 398 U.S. 281 (1970) (a federal in- Juncuon to enjoin a state-court plainut! from giving effect to or availing itself of the benefits of a state court injunction is “an in- junction ‘to stay proceedings in a State court"). quoted in County of Imperial v. Munoz, 49 U.S.L.W. 4005, 4006 (Dec. 2. 1980). Un- derstandably, the majority has not sought to emphasize its attempt- ed distinction. But see majority tvpescnpt 21. The text of mv con- currence elaborates fully the perceived error in those other argumenis that the majority does emphasize A-134 from violating the challenged ordinance until they had obtained federal preliminary injunctive relief enjoining the town’s prosecution of the federal plaintiffs. The fed- eral district court concluded that Salem Inn and Tim-Rob were entitled to preliminary injunctive relief. In this respect its holding was affirmed by the Second Circuit and the Supreme Court. The latter noted that since there were no ongoing state criminal proceedings against these two plaintiffs, they were entitled to choose a federal forum as the one in which they would seek a declaration that the state statute was unconstitutional. The Court was troubled, however, because prior to final judgment there is no established de- Claratory remedy comparable to a preliminary in- junction; unless preliminary zelief is available upon a proper showing, plaintiffs in some situations may suffer unnecessary and substantial irreparable harm. Moreover neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with re- spect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute. 422 U.S. at 931 (emphasis added). Thus, the Court ap- proved the use of federal injunctive power to negate the State’s future enforcement power as to Salem and Tim-Rob, the parties who, prior to the award of federal injunctive relief, had refrained from violating the chal- lenged ordinance. This use of the federal injunctive power, however, was to have no application to the state's enforcement of the ordinance against M & L: “the State _ is free to prosecute others who may violate the statute.” Id. The lower federal courts had reached an opposite result with respect to the power of the state to prosecute Jas RR ae SEE Mae TERT He wresas ese ine ais talandielScaL Sas alia 623 A-135 M & L, the pre-injunction violator of the statute who was also a federal plaintiff. Insofar as Salem and Tim-Rob were entitled to have the constitutionality issue heard and decided in the federal forum, the district court found it “anomalous,” 364 F.Supp. 478, 482 (E.D.N.Y. 1973), and the Second Circuit found it to be inequitable and wasteful of the state's judicial resources, 501 F.2d 18, 2% (1974), todeny M & L the same federal forum. Younger v. Harris notwithstanding. The Supreme Court, rejecting the lower court's re- sults with respect to M & L. reached a conclusion that is compelling in this case. It held that “the interest of avoiding conflicting outcomes in the litigation of similar issues, while entitled to substantial deference in a uni- tary systern, must of necessity be subordinated to the claims of federalism in this particular area of the law.” 422 U.S. at 928. Similarly, the plaintiff in Steffel v. Thompson was able to obtain federal declaratory relief from threatened State prosecution, even though the acts of his compan- ion, Becker, had already prompted the locai authorities to begin a criminal prosecution against her based on the very same policies challenged by Steffel in his federal complaint. In Doran, the pendency of the federal suit brought by Salem and Tim-Rob did not preclude the imposition of criminal sanctions against M & L; in Steffel, the state’s ability to prosecute Becker was independent of Steffel’s federal suit. The only federal plaintiffs whose federal suits were not barred in those cases were those who were not defendants in ongoing state proceedings. These cases therefore demonstrate that one party cannot be denied a federal forum merely because there is a threat that, in an ongoing state proceeding, the state court may reach a legal conclusion inconsistent with that of the federal court on a matter of federal law as ap- plied to similar activities engaged in by separate individ- A-136 uals.'' Doran requires. however. that the injunctive power of the federal court, properly invoked by one party subsequent to the filing of a state-court action which raises the same legal issue as to other parties, be so cir- cumscribed as not to bar the state court from moving in- dependently in the pending parallel suit. The majority opinion permits precisely what Doran stated could not happen; it allows the federal court to dictate the terms by which the state court will resolve the concrete dispute between separate parties to the par- allel proceeding. The majority even goes so far as to suggest that be- cause the grant of declaratory relief to a separate party would be “just as disruptive to state enforcement as di- rect interference in the state proceeding in the form of an injunction.” the availability of separate declaratorv re- lief undercuts the “initially appealing” theory that 11. There can be no such inconsistent conclusions, however, unless each system, state and federal. is permitted to generate its own legal product in any existing case without mid-litigation inter- ference by a court in the other system acting on a subsequentiv-filed suit. There are special exceptions, of course, for subsequentlyv-filed state court proceedings. See Hicks v. Miranda, 422 U.S. at 349 (where state cnminal proceedings are begun against the federal plainuffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v. Harris should apply in full force); Doran v. Salem Inn. Inc., 422 U.S. at 929 (when the criminal summonses issued against M & L on the davs immediately following the filing of the federal complaint, the federal litigation was in an embrvonic stage and no contested matter had been de- cided: in this posture. M & L's praver for injunction is squarely gov- erned bv Younger). Since the state proceeding in this case was be- gun prior to the filing of the federal complaint. these exceptions are irrelevant to this case. There are also excepuons for subsequentlv-filed federal com- plaints: Younger spells out these exceptions. See note 8. supra. Mv dispute with the majority is not over whether exceptions exist. Rather. | take issue with the notion that Younger itself is inapplica- ble due to the presence of additional parties in the federal acuon. PEN AE ADP ISS LS eS NON A-137 Younger generally forbids direct interference in state proceedings. See majority typescript op. at 20-23. In advancing this argurfient the majority lapses into pre- cisely the same error committed by the Second Circuit in Doran — an error that required subsequent reversal in the Supreme Court. As previously discussed, see minor- ity typescript op. at 8-9, after the Second Circuit con- cluded that Tim-Rob and Salem Inn had properly in- voked federal court jurisdiction, the court was “struck by the practical wisdom” of affording M & L the same fed- eral forum, notwithstanding the pendency of its state-court criminal proceeding. Because precisely the same constitutional issues would be raised by all three litigants, the “more substantial considerations . . . fa- vor{ed]. . . extending federal protection, at least in this case,toM&L... .” Such considerations included the danger of “contradictory outcomes” in state and federal court. 501 F.2d at 22. This reasoning was unequivocally rejected by the Supreme Court. “[T]he interest of avoid- ing conflicting outcomes in the litigation of similar is- sues, while entitled to substantial deference in a unitary system, must of necessity be subordinated to the claims of federalism in this particular area of the law.” 422 U.S. at 928. Thus, contrary to the suggestion of the majority, Doran squarely holds that pursuit of federal declaratory relief cannot “directly interfere with enforcement of con- tested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to pros- ecute others who may violate the statute.” Id. at 931. The majority commits a further error. It permits the federal court to dictate the terms of the state-court pro- ceeding at the suit of the very party, among others, whose federal suit was barred by the holding in Doran — namely, the state-court defendant. For purposes of Younger analysis here, the corpo- rate plaintiff, Shelton, must be treated as if it were a de- fendant in the state court. The request for relief by the A-138 corporation in federal court is nothing less than a claim that the New Jersey Superior Court fails to offer the state-court defendants an “adequate legal remedy” for their alleged constitutional injurv. Inasmuch as the cor- poration's board of directors was already a party to the Superior Court action, and had the ultimate authority to direct the agents of the corporation to litigate any consti- tutional issues in federal court, the corporation had no interests separate from those of the state-court defen- dants. The corporation had nothing that would give it the independent right to invoke federal relief where, un- der a Younger analysis. the state-court defendants would have had none. I stress this point because of the serious and far- reaching implications of the majority's holding. Under the majority's rule, a state-court defendant in this circuit will be able to ignore the Younger line of cases so long as he is able to enlist additional parties to his federal com- plaint who profess an interest in the outcome of the state-court litigation. For instance, this means that if the federal cornplaint filed by M & L in Doran were to be filed tomorrow in New Jersey, and its factual allegations were to be assumed true as in the Doran decisions, such a complaint could not be dismissed on Younger grounds so long as M & L included in its complaint some of its customers, employees, shareholders or officers who were not named as defendants in the state criminal summonses. For the foregoing reasons, | submit that the major- ity’s reasoning here is squarely at odds with Doran and Steffel. At least one other court recently has faced the precise question addressed by the majority and reached an opposite result. In Corpus Christi Peoples’ Baptist Church, Inc. v. Texas Department of Human Resources, 481 F. Supp. 1101 (S.D. Tex. 1979), affd mem., 621 F.2d 438 (Sth Cir. 1980). the district court addressed the question in the context of a suit nearly identical in all re- spects to this one. The federal suit alleged that state li- A-139 censing requirements, as applied to two church-owned and church-operated child-care homes, infringed first, fifth, ninth, and fourteenth amendment rights of the federal plaintiffs. Problem children were placed in those homes and, contended the plaintiffs, “saved” through re- ligious instruction. The federal plaintiffs included the church, staff members of the homes, children residing at the homes, and parents of these children. All of the plaintiffs who testified felt that they would be irreparably harmed if the homes were closed by the state. The federal district court held that Younger princi- ples applied due to a pending suit brought by the state agency to enforce the requirements of the licensing scheme. The church was a defendant in the state-court proceeding. Apparently, the children, parents, and staff members were not. “Technically,” said the court, the Younger doctrine would not apply to these federal-only plaintiffs. [I]f there were as an additional plaintiff in this case another church operating ano-her child-care insti- tution without a license, raising the same First Amendment contentions through the same attor- ney, the Court would not invoke the abstention doc- trine as to that hypothetical plaintiff simplv because the resolution of the pending state case would, as a practical matter, likely resolve the same common is- sues of law. It seems to the Court, however, that the facts of this case present an entirely different picture. The bedrock issue is whether or not the state can en- force its licensing requirement for child-care homes when such a home is owned and operated bv a church. The rights of the employees of the home. the children in the home and their parents are merely appendages to that central question. If, at the conclusion of the state case, it is resolved that the constitutional rights of the church are para- A-140 mount to the interests of the state. then the home wil] continue to operate without the offending li- censing requirements. The corresponding rights of the children. their parents, and the staff members of the home will automaticallv be vindicated. On the other hand, if after proceeding through the state court case, including the nights of appeal to the United States Supreme Court, it is determined that a child-care home must be licensed even if it is oper- ated by a church, then seemingly the collateral claims of the other plaintiffs that thev have a consti- tutional right to either work at or live in such a home or place their children there would become academic, as the home itself would be forced to close. This, therefore, would seem to be the classic case contemplated by the Supreme Court in Doran v. Salem Inn, Inc.. supra, when it stated that “there plainly may be some circumstances in which legallv distinct parties are so closely related that thev should all be subject to the Younger considerations which govern any one of them... .” 422 U.S. at 928. 481 F. Supp. at 1110 (footnotes omitted). The majority seems io attack Corpus Christi for its failure to expressly recognize that, for some purposes, the federal-only plaintiffs have free-exercise rights that are not “mere ap- pendages” to the church's rights. I doubt that the district court meant to go so far as the majority says it does. It is more likely that the court was concerned with the limit- ed extent to which the federal-onlv plaintiffs’ nghts were implicated in the relief sought by the state-court plain- tiffs. In anv event. my analysis here depends not at all on total identification o/ the federal-only plaintiffs’ rights with those of Shelton. In no sense do | assert that the case before us is one in which the outcome of the state litigation is “dispositive” of the federal-onlv plaintiffs’ A-14] first amendment interests — | explicitly assert the con- trary. See, e.g., minority tvpescript op. at 24-27, infra. Other courts have held federal-onlv plaintiffs barred by Younger in cases where the nature of the relief sought by the federal-only plaintiffs would, as in this case, necessarily interfere with pending state-court pro- ceedings against other federal plaintiffs. In ACLU v. Bozardt, 539 F.2d 340 (4th Cir. ), cert. denied, 429 U.S. 1022 (1976), “Jane Koe” and the ACLU sought federal equitable relief blocking state disciplinary proceedings initiated against Koe by the disciplinary board of the South Carolina Bar. Plaintiffs also sought declaratory and injunctive relief to prevent the disciplinary board from initiating subsequent similar proceedings against other ACLU attorneys. The Fourth Circuit affirmed the /holding of the district court that Younger barred federa! intervention in the state disciplinary proceedings. !n reaching its decision, the circuit court addressed the ACLU’s contention that even if dismissal of Koe’s com- plaint was appropriate under Younger, dismissal of the ACLU’s complaint was improper because the ACLU was not a party to a pending state proceeding. The ACLU contended that it was asserting the rights of associated attorneys other than Koe who had no State proceedings pending against them. and were therefore not burdened by Younger restrictions. The Fourth Circuit, however. found that because federal equitable relief is sought by the ACLU on behalf of its members. a grant ot federal relief would necessarily have an effect upon all ACLU associates, including Koe. To permit the ACLU to assert rights of those associates not bound by the Younger restrictions in order to obtain tederal equitable reef which would necessarily benefit all its associates would directlv intertere with the pend- ing state proceedings. and have the effect of cir- cumventing the Younger restrictions which bar koe A-142 from seeking direct federal relief. We conclude that Allee and Steffel were not intended to be interpreted SO as to permit a litigant to avoid Younger restric- tions merely by joining his claim with claims of oth- ers asserting a joint interest. 539 F.2d at 343 (emphasis added). Similarly, in Doe v. Maher, 414 F. Supp. 1368 (D. Conn. 1976), vacated on other grounds, 432 U.S. 526 (1977), the district court noted that [t]he fact that the adult plaintiffs in this action, with the exception of the intervenor, Linda Robustelli, are defendants in pending contempt proceedings instituted by the [state] commissioner under the au- thority of [state law] raises a serious issue of absten- tion in light of Younger v. Harris. . . and its prog- eny. The intervention of Ms. Robustelli, who has been threatened with prosecution, but against whom no action is presently pending, cannot cir- cumvent the issue, for while she may be entitled to declaratory and injunctive relief on a personal basis, Doran v. Salem Inn, Inc., . . . she cannot, under the guise of representing a class, dispense with the Younger considerations for those members of the class who are presently being prosecuted. “The re- quirements of Younger are not to be evaded by artifi- cial niceties.” Allee v. Medrano, 416 U.S. 802, 833 (1974) (Burger, C.J., concurring in the result in part and dissenting in part). 414 F. Supp. at 1372.' 12. Allee v. Medrano involved a request by a union and its members for federal injunctive relief from a persistent pattern of po- lice misconduct. including the filing of criminal charges. Younger issues were therefore implicated. For purposes of evaluating some of the requested relief, the record before the Court was inadequate to indicate whether there were pending prosecutions, or even whether the district court intended to enjoin them if there were. ae A-143 Thus. until todav, no court had interpreted Doran and Steffel as authorizing interference by federal courts in pending state proceedings. even at the suit of parties with interests separate from those of the state-court de- fendants. Beyond question, the majonty has departed from all extant federal court interpretations of the rel- evant Supreme Court precedent. '’ NOTE 12 —(Continued) The Court therefore remanded the case for further findings and re- consideration in light of Steffel v. Thompson, a decision that had not been available at the tume of the district court's decision. Chief Jus- uce Burger, in a concurrence, discussed the Younger problems that would face the district court on remand: To the extent that they can prove standing, the individual appellees will be seeking federal court interference in their own state court prosecutions. The union, to the extent that it has standing, will be seeking interference with state court prosecu- tions of its members. There is an identity of interest between the union and its prosecuted members; the union may seek re- lief only because of the prosecutions of its members, and only by insuring that such prosecutions cease may the union vindi- cate the constitutional interests which it claims are violated. The union stands in the place of its prosecuted members even as it asserts its own constitutional nghts. The same comity con- siderations apply whether the acuon is brought in the name of the union, and there is no inequity in requinng the union to abide by the same legal standard as its members in suing in federal court. If the union were unable to meet the require- ments of Younger, its members subject to prosecution would have a full opportunity to vindicate the First Amendment rights of both the union and its members in the state court proceed- ings. Any other result would allow the easy circumvention of Younger by individuals who could assert their claims of First Amendment violations though an unincorporated association of those same individuals if the association is immune from Younger burdens. 416 U.S. at 830-31 (footnote omitted). 13. I would agree that under Doran and Steffel declaratory re- lief would have been available to the federal-only plaintiffs alone, without their having to survive the pitfalls of a Younger analysis, insofar as they asserted rights independent of those directly at issue A-144 II. Although the majority's position derives no support from Doran and Steffel, there rernains the question of whether the majoritv’s broader policy analysis discloses an adequate basis for the majority’s unprecedented ex- tension of Doran and Steffel. The majority’s position could not prevail absent a strong supporting rationale, for in some ways it conflicts with the foundations of Younger. If federal intervention were warranted merely because the request for injunctive relief was “pendente lite,” then the basic policy behind Younger dismissal — namely. to “permit state courts to try cases free from in- terference bv federal courts,” 401 U.S. at 43 — would be undermined. Thus, it is difficult for the majority to derive any support for its position from the assumption that pendente lite Supreme Court review could only be had if the federal plaintiffs were entitled to attack Superior Court Judge Gruccio’s order in federal court. All state-court litigants face the same statutory barrier to pendente lite review in the Supreme Court. To argue the in the state-court case. See also Chase National Bank v. Citv of Norwalk, 291 US. 431. 440 (1934), County of Impenal v Munoz. 49 U.S.L Wy 4005, 4007 (Dec. 2. 1980) (Blackmun, J.. concurnng in the result). On this appeal, however, this court affirms only the relief of the district court which directly interferes in the state-court proceediny. See majonty tvpescript at 21. At some future time this court may have occasion to recognize the legal significance of the separateness between the interests of Shelton, on the one hand, and the federal-only plainuffs. on the other. However, this is not such a case. Cf. Louisville Area Inter-Faith Comm. for UFW v. Notting- ham Liquors. Ltd., 542 F.2d 652, 653 n.* (6th Cir. 1976) (affirming the distnct court's dismissal of a suit brought by the Committee and two individuals to obtain injunctive relief against a state-court in- junction restraining the Committee from mass picketing or march- ing. the federal-oniy plainuffs “have no interests apart from the Committee. In the district court, |they] ‘sue|d] on behalf of and as representauon for’ the Committee, rather than on their individual behalf’). A-145 need for a federal torum from this supposed gap im the Supreme Court's jurisdiction is to deny the soundness of Doran itself, which was, after all, a suit in which federal pendente lite relief was denied to M & L. I will assume, arguendo, that the separate interests of the federal-only plaintiffs might have rendered their advocacy of Shelton’s cause somewhat different than Shelton’s, although this assumption is not supported by factual findings of the district court. Under this assump- tion, it is arguably reasonable to credit such parties with a greater need for federal relief on behalf of Shelton than the state-court litigants themselves. Thus this case would present a factor militating in favor of federal inter- vention not found in Younger or in M & L’s case in Doran. But because the district court’s injunction would directly interfere with the pending proceedings in the New Jersey court, the federal relief would be an intru- sion on the legitimate function of the state court in de- ciding the constitutional issues arising out of the cases brought before it.'* Given this conflict, it is not obvious that the correct result is to afford the aggrieved non-parties to the state-court litigation federal injunctive relief. I conclude that the majority’s rationale is insuffi- cient to demonstrate the correctness of that result. The majority’s reasoning, apart from its reliance upon Doran and Steffel, embraces the following steps: (1) these plaintiffs were entitled to bring a section 1983 action for relief from unlawful state interference with their first amendment rights; (2) there is no reason to believe that the plaintiffs could have asserted that claim by intervening in the Superior Court litigation; (3) thus a separate section 1983 action, in a separate state or fed- eral court, was available for “pendente lite” relief; and 14. It is undisputed that the state court was presented with es- sentially all of the claims asserted in the federal complaint, and that it was competent to hear and decide the federal questions arising out of the instant controversy. A-146 4) the possibility of United States Supreme Court re- view of preliminary relief awarded in federal district court, as opposed to the impossibility of such review of an interlocutory order of the New Jersey Superior Court. rendered the need for the federal forum “significant, le- gitimate. even compelling.” and unopposed by anv legiti- mate state interest. The first step in this argument. taken as an abstract desideratum. presents no problems. The last step cannot help the majority. for as we have already seen, it proves too much. Typescript minority op. at 17. supra. An addi- uonal problem with that step. however, is that it is based on an erroneous assumption concerning the scope of the Supreme Court's junsdiction under [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3171%3A2. Public record. Not legal advice.