# Opposition Brief — Potomac Electric Power Co. v. Curran

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 1022

## Text

“>

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2419%3A2. Public record. Not legal advice.