Opposition Brief — Potomac Electric Power Co. v. Curran

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No. 86-871 —

LR

In THE L aa

Supreme Court of the United States

OctToBEeR TERM, 1986

THE POTOMAC ELECTRIC POWER COMPANY,

Petitioner,

Vv.

STEPHEN H. SACHS,

ATTORNEY GENERAL OF MARYLAND, Er At.,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STEPHEN H. Sacus,

Attorney General of Maryland,

Ra.pu S. Ty er, III,*

Anprew H. Baipa,

RicuarD M. Ha tt,

Kartuie A. STEIN,

MicuHae. C. Powe Lt,

CuaRLEs R. Tay or, JR.,

Assistant Attorneys General,

The Munsey Building, 2nd Floor,

Seven N. Calvert Street,

Baltimore, Maryland 21202,

(301) 576-6342,

Counsel for Respondents.

* Counsel of Record

The Daily Record Co. Baltimore. MD 21202

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COUNTER-STATEMENT OF

QUESTION PRESENTED FOR REVIEW

Did the Court below apply correctly the

doctrine of Younger v. Harris, 401 U.S. 37

(1971), when it held that abstention was

required because a pending state grand jury

investigation of the plaintiff is a state

judicial proceeding to which the _ federal

courts must defer?

TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF QUESTION

PRESENTED FEe Bev bls cor edornevceveeescecoe i

COUNTER STATEMENT OF THE CASE.........4.. l

REASONS FOR DENYING THE WRIT.......++++49

* This case involves no novel

issues on which the lower

courts require the guidance

ef thie Geertecisevatese sincesce 7

A. The Fourth Circuit's

decision is in accor-

dance with this Court's

long line of Younger

abstention decisions......7

B. The Fourth Circuit's

decision is in accord

with the vast majority of

appellate and district

court decisions on this

II. PEPCO's declaratory judgment

complaint in which it sought a

determination of the validity

of a federal defense to a state

indictment did not state a claim

"arising under the Constitution

laws, or treaties of the

United States." cccscccccceseel®

ij

III. The issue presented by PEPCO's

petition is moot because the

State has suspended its

criminal investigation........ 21

CONCLUSION. .ccccccccccccccccccccccccces 26

TABLE OF AUTHORITIES

Cases

Babbitt v. United Farm Workers

National Union,

is COMER Desens ccocccceesce 24

Chapman v. Houston Welfare Rights

Organization,

BEe Gems COP CERISE} ccccncrcccccoecs 14

Cobbledick v. United States,

i ee ee ets eee ecessecees 8

Craig v. Barney, 678 F.2d 1200

(4th Cir.), cert. denied

Bee Wels BOO LEOORFceccvecccccccccs 16

Duckett v. Touhey, 36 Md.App. 238,

Se en re COUTTS eck eek bebe eveases 9

Ex Parte Young, 209 U.S. 123 (1908).....8

Garden State Bar Ass'n. v.

Middlesex County Ethics Conm.,

643 F.2d 119 (3rd Cir. 1980)....... 1]

Gully v. First National Bank on

Meridian, 299 U.S. 109 (1936)...... 17

Hicks v. Miranda,

De MEE CEOTOPcececcccscescees 25

iii

Kaylor v. Fields,

S61 F.36 1177 (8th Cir. 1981)..... 16

Law Firm of Daniel P. Foster v.

Dearie, 613 F.Supp. 278

ee oe ek eeaues 16

Levine v. United States,

SES Gib, GES CEOOGD oe cecccescccse 9,17

Louisville v. Nashville Railroad Co.

v. Mottley, 211 U.S. 149 (1908)....18

Merrill Dow Pharmaceuticals, Inc.

v. Thompson, U.S.

[go 2 i .. ge |) Pen 18

Middlesex County Ethics Committee v.

Garden State Bar Association,

487 U.S. 423 (1982)... .ceee. 8,10,15

Midlantie National Bank v. New

Jersey Dept. of Environmental

Protection, U.S. ,

Oe Gres FE Chee cccccaceccccsece 2

Monaghan v. Deakins,

798 F.2d 632 (3rd Cir. 1986)....... 15

Moore v. Sims,

SGN Won GEE CATO) cc ccccveseces 10,15

Notey v. Hynes, 418 F.Supp. 1320

fe 8 A) PrerrrrrrT TTT TTr 13

Ohio Civil Rights Comm. v. Dayton

Christian Schools, Inc.,

U.S. , 106 §.Ct. 2718

iv

People of the State of Illinois v.

Archer Daniels Midland Co.,

704 F.2d 935 (7th Cir. 1983)....20,21

Perez v. Ledesma,

Ja Se et eee ee ee 25

Publie Service Comm'n. of Utah v.

Wycoff, 344 U.S. 237 (1952)........ 18

Samuels v. Mackell,

SGk Gia “BS. CIS CA ck cbcasadeana 13,19

Sovereign News v. Falke,

448 F.Supp. 306 (N.D.Ohio 1977),

remanded on other grounds

610 F.2d 428 (6th Cir. 1979)....... 16

Steffel v. Thompson,

SiS GiGi CRO) é 00-660 04 6a eA Re 18

Toilet Goods Association v. Gardner,

387 U.S. 158 (1981)..... cee eeeeees 24

University of Texas v. Camenische,

SO D.iBs GOO CISC). cc cnksnrcaesaes 23

Younger v. Harris,

te = Se wf gt ererer rere passim

Zalman v. Armstrong,

802 F.2d 199 (6th Cir. 1986)....... 25

Statutes

1S U.S.C. §$§2601 et seg... cccccccccces 3

SB U.S.C. FlSehssscccccccessscsesecesht gan

SB U.S.C. BESSON *OS cc cccccececececscsss 17

Md. Health Envir. Code Ann. §9-322...... 3

Vv

No. 86-871

IN THE

SUPREME COURT FOR THE UNITED STATES

October Term, 1986

THE POTOMAC ELECTRIC POWER COMPANY,

Petitioner,

v.

STEPHEN H. SACHS,

ATTORNEY GENERAL OF MARYLAND, et al.,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

COUNTER-STATEMENT OF THE CASE

As the district court found, "PEPCO

[Potomac Electric Power Company] brought this

suit in federal court in an apparent attempt

to foreclose the possibility of a state

criminal prosecution." 639 F.Supp. 856, 858

a

(D.Md. 1986) (App. at 34a).! The state grand

_jury was seeking to determine whether PEPCO

had violated Maryland's criminal hazardous

waste disposal laws.

Between 1981 and 1983, PEPCO sold scrap

electrical transformers to the United Rigging

and Hauling Company ("United Rigging") of

Beltsville, Maryland. Some of the transfor-

mers contained oil contaminated with poly-

chlorinated biphenyls ("PCBs"). In April,

1985, the Attorney General of Maryland start-

ed a state grand jury criminal investigation

of PEPCO's and United Rigging's PCB-disposal

1 Citations in the form "App. at "are to

the appendix to PEPCO's petition for

certiorari.

2 PCBs are "a highly toxic carcinogen."

Midlantic National Bank v. New fers Dept.

of Environmental Protection, U.S.

S.Ct. 755, 757 (1986).

oS

actions.® That investigation included a

court-authorized search of United Rigging's

site, chemical tests of oil in transformers

identified as among those purchased _ from

PEPCO that showed high PCB concentrations,

and grand jury subpoenas to PEPCO for docu-

ments and to its employees for testimony.

PEPCO tried to stop the State's criminal

investigation by filing this federal declara-

tory judgment action. PEPCO's complaint

alleged that Maryland's criminal hazardous

waste disposal laws are preempted by _ the

federal Toxic Substances Control Act

("TSCA"), 15 U.S.C. §§2601, et seq. The State

moved to dismiss PEPCO's complaint on the

ground, among others, that the State's then-

pending state grand jury investigation of

3 While this case was pending in the Fourth

Circuit, United Rigging pleaded guilty to

violating Maryland's water pollution law, Md.

Health Envir. Code Ann. §9-322. See 802 F.2d

1527, 1529 n.5 (4th Cir. 1986) (App. at 13a

n.5).

PEPCO was a estate judicial proceeding to

-_

which the federal court was’ required to

abstain under the doctrine of Younger v.

Harris, 401 U.S. 37 (1971). The district

court denied that motion (App. at 26a - 30a),

notwithstanding its finding that "[t]here is

little question from the record. . . that an

indictment of PEPCO for alleged responsibi-

lity for or participation in _the ‘United

Rigging contamination is’ imminent." 638

F.Supp. at 857 (App. at 34a).

On the merits, however, the district

court rejected PEPCO's argument that

Maryland's hazardous waste disposal laws are

preempted by TSCA. 639 F.Supp. 856 (App. at

3la). PEPCO appealed that decision, and the

State cross-appealed the denial of its motion

to dismiss. On appeal, the Fourth Circuit

reversed the district court's Younger deci-

sion, holding that abstention was required

because a state grand jury proceeding is a

judicial proceeding to which the _ federal

courts must defer. 802 F.2d 1527 (App. at

la). PEPCO's petition to this Court

followed.

On December 9, 1986, subsequent fo the

filing of PEPCO's petition in this Court,

PEPCO's counsel was advised by the Assistant

Attorney General conducting the State's crim-

inal investigation that the State had decided

to suspend its investigation because of a

pending federal investigation into the same

matters. See Appendix to PEPCO's Supple-

mental Brief.

REASONS FOR DENYING THE WRIT

Summary

The Fourth Circuit applied correctly

this Court's long line of Younger deci-

sions. There is no merit to PEPCO's argument

that Maryland grand jury proceedings are not

state judicial proceedings involving impor-

tant state interests. This Court has made it

emphatically clear that absent extraordinary

circumstances federal courts must abstain

when the federal plaintiff is involved in

ongoing state judicial proceedings.

Abstention is particularly necessary

when the federal plaintiff is the subject of

a state grand jury investigation. Failure to

abstain in such a case would result in sub-

stantial federal judicial interference in

state criminal investigatory and prosecutor-

ial functions and would be inconsistent with

Younger's core principles of comity and

federalism.

The suspension of the State's investiga-

tion of PEPCO makes the issue raised in the

petition for certiorari moot. This case

should not, however, be remanded to the

Fourth Circuit, as PEPCO requests in its

Supplemental Brief, because the Younger issue

was decided correctly by the Fourth Circuit

as PEPCO was under investigation by a state

grand jury when this action was filed and

while the case was pending in the district

and lower appellate cours. Contrary to

PEPCO's arguments, Younger abstention is

required if the federal plaintiff is the

subject of state judicial proceedings when

the case is first heard in the district

court. Because PEPCO was then under investi-

gation by a state grand jury, abstention was

mandated, this case should have been dis-

missed then, and there is no basis for any

further proceedings.

~

- This case involves no novel

issues on which the lower

courts require the guidance of

this Court.

A. The Fourth Circuit's deci-

sion is in accordance with

this Court's long line of

Younger abstention

decisions.

Younger v. Harris, 401 U.S. 37 (1971),

and its progeny require federal courts to

abstain from enjoining, or issuing a declara-

tory judgment, with respect to a state judi-

cial proceeding, even if pursued under a

possibly unconstitutional statute, provided

three conditions are satisfied: (1) there

are ongoing state judicial proceedings; (2)

the ongoing state judicial proceedings impli-

' @ate an important state interest; and (3)

there is an adequate opportunity in the on-

going state proceedings to raise constitu-

tional challenges. See Middlesex County

Ethics Committee v. Garden State Bar Associa-

tion, 457 U.S. 423, 432 (1982). Abstention

was mandated in this case because these three

conditions existed when this case was heard

and decided in the district court.

This Court has long recognized that

grand jury proceedings are judicial proceed-

ings. See, e.g., Ex Parte Young, 209 U.S.

123, 163 (1908) (describing the grand jury as

"part of the machinery of a criminal court");

Cobbledick v. United States, 309 U.S. 323,

327 (1940) ("The Constitution itself makes

the grand jury a part of the judicial

process."); Levine v. United States, 362 U.S.

610, 617 (1960) (grand jury proceedings con-

stitute a judicial inquiry). This point is

equally clear under Maryland law. See, e.g.,

Duckett v. Touhey, 36 Md.App. 238, 242, 373

A.2d 323, 325 (1977).

The State has an obviously important,

indeed paramount, interest in preserving the

independence and integrity of its grand jury

proceedings. That interest includes unfet-

tered authority to investigate those whom

prosecutorial authorities believe to have

violated the State's criminal laws. Federal

judicial interference in this area of criti-

cal state concern is, as the Fourth Circuit

correctly recognized, flatly inconsistent

with Younger's fundamental principles of com-

ity and federalism. See 802 F.2d at 1530-31.

The third prong of Younger - an adequate

state opportunity to raise constitutional

challenges - was also satisfied here. PEPCO

has never claimed that Maryland's courts are

incapable of deciding its federal preemption

claim, if it were indicted. 4 Rather, PEPCO's

sole compiaint involves when it is afforded

the opportunity to present its federal

claims. See Petition, e.g., at 16 ("PEPCO,

however, will only have an opportunity to

raise its claims ‘if indicted.'") (citation

omitted). This Court, however, has rejected

repeatedly the argument that Younger is inap-

plicable because the opportunity to present

federal claims is provided later rather than

sooner. See Moore v. Sims, 442 U.S. 415

(1979); Middlesex , County Ethics Conm. v.

4 Were PEPCO to make such a eclaim, it is

‘clear that it would be without merit. This

Court has emphatically rejected the assertion

that state courts are somehow less competent

than federal courts to decide federal issues.

See Moore v. Sims, 442 U.S. 415, 430 (1979).

60

Garden State Bar Ass'n, 457 U.S. 423 (1982);

Ohio Civil Rights Comm. v. Dayton Christian

Schools, Inc., U.S. », 106 $.Ct. 2718

(1986).

The fallacy of PEPCO's argument is shown

perhaps most clearly by this Court's reversal

of the Third Cireuit in Middlesex. The Third

Circuit's rationale for not abstaining was

that "the state proceedings have not yet

reached a stage at wh ig [plaintiff] Hinds'

constitutional claims ir be adjudicated.

a Garden State Bar Ass'n v. Middlesex

County Ethics Conm., 643 F.2d 119, 130

(1980). As this Court held, however,

abstention was required in Middlesex because

state law did not bar the interposition of

the federal plaintiff's constitutional

claims. Notwithstanding the federal

plaintiff's dissatisfaction with when the

opportunity to raise federal claims was pro-

vided, abstention was required because state

-ll-

law clearly provided the opportunity to raise

federal claims at some point. The same is

true in this case.

An equally direct rejection of PEPCO's

timing (or instant gratification) theory of

abstention is the decision last Term in Ohio

Civil Rights Commission. There, the Court

held that Younger abstention was required

even if federal claims could not be raised

before the administrative agency because

"constitutional claims may be raised in state

court judicial review of the administrative

proceeding." 106 S.Ct. at 2724.°

5 Because this judicial review would occur in

proceedings altogether separate from. and

clearly subsequent to the administrative pro-

ceedings, PEPCO is just plain wrong when it

asserts that "[t]his Court .. . has never

required abstention when the plaintiff had no

present opportunity to raise his’ federal

claims in pending state adjudicetory proceed-

_ings." Petition at 15 (emphasis in original).

~iBe

Samuels v. Mackell, 401 U.S. 66 (1971),

fully answers PEPCO's alternative argument

that the Younger abstention doctrine is

inapplicable to preemption claims.

Notwithstanding the plaintiff's claim there

that a New York statute was preempted, 401

U.S. at 67, abstention was required. In

addition, this alternative argument is

altogether illogical.

A supremacy clause claim is not entitled

to a lower abstention standard than is a

preferred First Amendment claim, for exampte.

This Court has, of course, hetd that absten-

tion may be required even when the plaintiff

claims that the challenged state action vio-

lates First Amendment rights. See, e.g.,

Younger v. Harris; Ohio Civil Rights Conm. v.

Dayton Christian Schools, Ince. Therefore, a

plaintiff, like PEPCO, who relies upon a

federal statute and the supremacy clause as

the bases for challenging a state's actions

«iGo

should not be more favored than a First

Amendment plaintiff, particularly when this

Court has held that a supremacy clause-

derived preemption claim is not a constitu-

tional claim. Chapman v. Houston Welfare

Rights Organization, 441 U.S. 600 (1979).

The suspension of the State's

investigation illustrates graphically both

the soundness of the Younger doctrine in

general and the applicability of the doctrine

to this case. The State's criminal investi-

gation, including grand jury proceedings,

went forward without federal interference.

The conclusion of this state proceeding has

been a decision to suspend the investigation.

Thus, the State's thoroughly legitimate

interest in unfettered prosecutorial autho-

rity has been preserved and the matter has

come to an end without the necessity for any

court, and most especially a federal court,

to get involved.

=14-

B. The Fourth Circuit's

decision is in accord with

the vast majority of

appellate and district

court decisions on this

issue.

PEPCO makes much of the conflict between

the Fourth Circuit's decision in this case

and the Third Cireuit's decision in Monaghan

v. Deakins, 798 F.2d 632 (1986), petition for

certiorari pending No. 86-890. That argument

obscures the plain fact that Monaghan is

truly an anomaly which is flatly inconsistent

with the clear holdings of this Court, see

v= 44, supra, °® and with a body of lower

court decisions holding that a state grand

jury proceeding constitutes a state judicial

6 The flaw in the Third Circuit's analysis in

Monaghan is the same as that in its earlier

decision in Middlesex. In both cases, the

Third Circuit held Younger inapplicable

because of when state law provided an oppor-

tunity to raise federal claims. That is the

wrong inquiry. As this Court's decisions

make plain, the proper inquiry is whether

State law provides such an opportunity, not

when. See, e.g., Moore v. Sims, 442 U.S. at

-15-

proceeding for Younger purposes. See Craig

v. Barney, 678 F.2d 1200, 1202 (4th Cir.),

cert. denied, 459 U.S. 860 (1982); Kaylor v.

Fields, 661 F.2d 1177, 1181 (8th Cir. 1981);

Law Firm of Daniel P. Foster v. Dearie, 613

F.Supp. 278, 280 (E.D.N.Y. 1985); Sovereign

News v. Falke, 448 F.Supp. 306, 347-359

(N.D.Ohio 1977), remanded on other grounds,

610 F.2d 428 (6th Cir. 1979); Notey v. Hynes,

418 F.Supp. 1320, 1326 (E.D.N.Y. 1976).

Because the Fourth Circuit's decision in

this case is completely consistent with the

decisions of this Court, as well as a well-

developed body of lower court decisions,

further review is unwarranted.

Il. PEPCO's declaratory judgment

complaint in which it sought a

determination of the validity

of a federal defense to a state

indictment did not state a

claim “arising under the

Constitution, laws, or treaties

of the United States."

This case is an inappropriate vehicle to

decide the Younger issue for the additional

-16-

reason that PEPCO's declaratory judgment com-

plaint failed to state a "federal question"

within the meaning of 28 U.S.C. $1331.’ This

Court has never held that the Declaratory

Judgment Act, 28 U.S.C. §§2201-2202, autho-

rizes the federal courts to determine the

validity of a federal defense to a state

charge. This Court has held repeatedly, how-

ever, that federal question jurisdiction does

not exist where the complaint anticipates a

defense based on federal law to a threatened

state action. See Gully v. First National

7 The State moved to dismiss PEPCO's

complaint based upon lack of jurisdiction as

well as Younger abstention. The district

court denied both motions (App. at 20a -

30a), but then rejected PEPCO's preemption

claim and ruled for the State on the

merits. 639 F.Supp. 856 (App. at 3la).

PEPCO appealed this decision, and the State

cross-appealed the district court's denial of

its motion to dismiss based upon lack of

jurisdiction and Younger abstention. The

Fourth Circuit resaataa the State's jurisdic-

tional argument, 802 F.2d at 1529, n.3 (App.

at 12a, n. 3), but agreed that abstention was

mandated. 802 F.2d 1527 (App. at la).

-17-

_— ,

Bank in Meridian, 299 U.S. 109, 116-18

(1936); Louisville v. Nashville Railroad Co.

v. Mottley, 211 U.S. 149, 152-54 (1908).

Here, because “the character of the

threatened action", see Public Service Comm'n

of Utah v. Wycoff, 344 U.S. 237, 248 (1952),

is an indictment for violating state law,

this suit does not “arise under" federal law

as required by 28 U.S.C. §1331. Rather,

federal law enters this case only because

PEPCO filed this declaratory judgment suit as

a defensive action, thereby hoping to defeat

8

prosecution under state law.

The concurring opinion of now-Chief

~

8 This Court has "consistently emphasized

that, in exploring the outer reaches of

§1331, determinations about federal juris-

diction require sensitive judgments about

congressional intent, judicial power, and the

federal system." Merrell Dow Pharmaceu-

ticals, Inc. v. Thompson, U.S. , 106

S.Ct. 3229, 3233 (1986). , Holding’ that

jurisdiction exists here expands’ federal

judicial power at the expense of the State's

ability to conduct criminal investigations.

st

Justice Rehnquist in Steffel v. Thompson, 415

U.S. 452 (1974), makes clear that the lower

courts' jurisdictional holdings are incompat-

ible with the history and purpose of the

Declaratory Judgment Act:

First, the legislative history of

the Declaratory Judgment Act and the

Court's opinion in this case both

recognized that the declaratory

judgment procedure is an alternative

to pursuit of the arguably illegal

activity. There is nothing in the

Act's history to suggest that con-

gress intended to provide _ persons

wishing to violate state laws with a

federal shield behind which _ they

could carry on _ their contemplated

conduct. Thus, | do not believe that

a federal plaintiff in a declaratory

judgment action can avoid, by the

mere filing of a complaint,’ the

principles so firmly expressed in

Samuels _[v. Mackell, 40) U.S. 66

(1971)], supra. The plaintiff who

continues to violate a state statute

after the filing of his federal com-

plaint does so both at the risk of

state prosecution and at the risk of

dismissal of his federal lawsuit.

For any arrest prior to resolution

of the federal action would consti-

tute a pending prosecution and bar

declaratory relief under the prin-

ciples of Samuels.

415 U.S. at 479-80 (emphasis added).

=~)

Because the Declaratory Judgment Act

does not "provide persons wishing to violate

state laws with a federal shield behind which

they could carry on their contemplated con-

duct" (emphasis added), the Act certainly

should not be interpreted to provide persons

who are under grand jury investigation for

having violated state criminal laws in_ the

past with a federal shield to avoid state

prosecution. —-

Federal question jurisdiction was not

intended to assist those who seek to prevent

state authorities from determining whether

the state's criminal laws have been violated.

Simply stated, clever federal declaratory

judgment pleading should not be permitted to

convert what is plainly a state matter into a

federal case.?

9 In People of the State of Illinois v.

Archer Daniels Midland Co., 704 F.2d 935 (7th

Cir. 1983), Judge Posner analyzed closely the

jurisdictional issue presented here and

(cont'd)

-20-

lie

a ee

III. The issue presented by PEPCO's

petition is moot because the

State has suspended its

criminal investigation.

Review should not be granted in this

case because the only issue presented by the

petition is rendered moot by the fact that

the State has suspended its criminal investi-

gation. Indeed, PEPCO's Supplemental Brief

is largely devoted to conceding that the

issue raised in its petition is moot. Thus,

this case is not an appropriate one for the

Court to decide the applicability of Younger

to state grand jury proceedings.

Having conceded that its petition for

certiorari is moot, PEPCO nevertheless claims

reached the opposite conclusion as_ that

reached by the Fourth Circuit. The State's

Attorney in Archer Daniels Midland filed a

state declaratory judgment action seeking a

determination of whether the Illinois Strike-

breakers Act was preempted by federal law.

The Archer Daniels Midiand Company removed

the case to federal court, claiming, as PEPCO

did, that the state law was preempted. 704

F.2d at 938. The Seventh Circuit held that

the district court lacked jurisdiction. Id.

at 943.

o$i-

that its case is not. For two reasons, this

is incorrect and the proper disposition of

this case is denial of certiorari, not remand

to the Fourth Cieesii. ' First, absent the

threat of indictment, there would not have

been a case or controversy. Now that that

threat has been removed, there is no case or

controversy. And second, this Court has made

it clear that the applicability of Younger is

to, be determined when the case is heard in

the district court.

PEPCO filed this action for one reason

and one reason only: because of the threat

of indictment. While PEPCO seeks to obscure

that point now, the truth was clear to both

the Fourth Circuit and the district court.

See, e.g., 802 F.2d at 1529, n. 5 (App. at

l3a, n. 5) (quoting district court's conclu-

sion that "an indictment of PEPCO for alleged

responsibility for or participation in the

United Rigging contamination is imminent."),

a Qt

and 639 F.Supp. at 858 (App. at 34a) ("PEPCO

brought this suit in federal court in an

apparent attempt to foreclose the possibility

‘of a state criminal prosecution."). PEPCO

has never disputed these findings regarding

its reason for filing this case, 19

Now that the jurisdictional predicate

for this declaratory judgment action has been

removed, there is no case or controversy.

This is not, therefore, a traditional moot-

ness on appeal case in which the proper dis-

position is remand for further proceedings on

outstanding issues, see, e.g., University of

Texas v. Camenisch, 451 U.S. 390 (1981),

because here the threat of indictment gave

10 Indeed, rather than disputing the fact

that it was the threat of indictment that

caused it to file and pursue this case very

aggressively, PEPCO sought’ extraordinary

expedition in the Fourth Circuit on _ the

ground that "it is likely that PEPCO will be

charged in an indictment before this Court

resolves the appeal." See PEPCO's Motion to

Expedite @5.

of8«

rise to the filing of the suit and the

Younger issue raised in the petition. Absent

that threat, there is no Article III case or

controversy. In truth, PEPCO is asking this

Court to amend its complaint by speculating

about a case it did not bring, !! and which

would not have been justiciable in any event.

Without the threat of indictment, the case

would have lacked and now does lack the

jurisdictionally required degree of concrete

controversy. See Toilet Goods Association v.

Gardner, 387 U.S. 158, 162-66 (1967); Babbitt

v. United Farm Workers National Union, 442

—

U.S. 289, 298-99 (1979).

11 pEPCO strains in its Supplemental Brief to

claim that "[a] live controversy continues to

exist between the parties with respect to the

Preemption issue." Id. at 3. PEPCO cannot

explain, however, and thus does not attempt

to explain, (1) why it never challenged

Maryland's PCB disposal laws until it was

under investigation by a state grand jury,

and (2) what enforcement action, if any,

Maryland has taken, will take, or contem-

plates taking other than the now-suspended

grand jury proceeding.

Furthermore, this Court has made it

clear that the applicability of Younger is

determined as of when proceedings of sub-

stance occur in the district court, and not,

as PEPCO suggests, based on the status of the

state proceedings when the case _ finally

reaches this Court. See Younger v. Harris,

401 U.S. at 41; Perez v. Ledesma, 401 U.S.

82, 85 n.2 (1971); Hicks v. Miranda, 422 U.S.

332, 349 (1975). The Sixth Circuit recently

applied this reasoning in Za lman v.

Armstrong, 802 F.2d 199, 203 (1986):

In our view, the principles underly-

ing Poutaet require that the initial

frame of reference for abstention

purposes be determined at the time

that the federal complaint is filed,

or at the very latest, at the time a

hearing is held on the merits in

federal court. Any other rule

would, in many cases, permit a

district court to directly interfere

in as ongoing state proceeding and

yet preclude aie review of the

propriety of that interference by an

appellate court.

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inline

The Younger issue presented by the

petition was decided correctly by the Fourth

Circuit. That issue, however, is now moot,

but without the threat of indictment, there

is no case or controversy. Further proceed-

ings are inappropriate.

CONCLUS ION

For the reasons stated, the petition for

a writ of certiorari should be denied.

Respectfully submitted,

STEPHEN H. SACHS

Attorney General of Maryland

RALPH S. TYLER, III°

ANDREW H. BAIDA

RICHARD M. HALL

KATHIE A. STEIN

MICHAEL C. POWELL

CHARLES R. TAYLOR, JR.

Assistant Attorneys General

The Munsey Building, 2nd Floor

Seven N. Calvert Street

Baltimore, Maryland 21202

(301) 576-6342

° Counsel of Record

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