Petition for Writ of Certiorari — Stanziani v. Coleman

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al ee Aa ua

ee

Office Supreme Court, U.S.

84-559 FILED

OCT 2 (v4

84- ALEXANDER L. STEVAS,

No.

CLERK

IN THE SUPREME COURT OF THE

UNITED STATES

October Term 1984

JOSEPH H. STANZIANI, et al.,

Petitioners

Vv.

KASEEM COLEMAN, et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

LeRoy S. Zimmerman

Attorney General

Howland Abramson, Esquire

Assistant Legal Counsel

to the Court Administrator

By: Office of the Court

Administrator

Kathleen F. McGrath 1414 Three Penn Center

Deputy Attorney General

Counsel of Record

David M. Donaldson

Deputy Attorney General

Andrew S. Gordon

Deputy Attorney General

Allien C. Warshaw

Deputy Attorney General

Philadelphia, PA 19102

(215) 563-4523

Walter S. Jenkins, Esquire

Sweeney, Sheehan & Spencer

Three Penn Center Plaza

Philadelphia, PA 19102

(215) 563-9811

Chief, Litigation Sectior

Office of Attorney General

15th Floor, Strawberry Sq.

Harrisburg, PA 17120

(717) 783-1471

Attorneys for Petitioners

_

li

Il.

QUESTIONS PRESENTED

Is a pretrial order by a federal

district court refusing to abstain

appealable under the collateral

order doctrine when the case is

against state judicial officers

(including a class of all present

and future state juvenile court

judges, masters, and probation

officers) and challenges the

constitutionality of state

proceedings conducted by the

judicial officers?

Did the district court err as a

matter of law in refusing’ to

abstain from deciding this case

brought against a class of state

judicial officers in which the

constitutionality of state juvenile

court proceedings governing juvenile

-i-

detention decisions are challenged

when the plaintiffs failed to avail

themselves of adequate opportunities

to raise their Constitutional claims

in the state proceedings?

LIST OF ALL PARTIES

The petitioners before this

Court were all the defendants in the

district court and the appellants in the

circuit court. They are: Joseph H.

Stanziani and Lawrence A. Brown, who are

Judges of the Montgomery County, Pennsyl-

vania, Court of Common Pleas, Juvenile

Divisicn, who have been sued on their

own behalf and on behalf of all other

Pennsylvania juvenile court judges;

Anthony Guarna, who is the Chief Juvenile

Probation Officer, Montgomery County,

Pennsylvania, who has been sued on his

own behalf and on behalf of all other

Pennsylvania juvenile probation officers;

Montgomery County, Pennsylvania, Court

of Common Pleas, Juvenile Division; and

Montgomery County, Pennsylvania.

The respondents were plaintiffs

in the district court and appellees in

-iii-

the circuit court. They are: Kaseem

Coleman, by his mother, Delores Lees;

Aaron Mattox, by his’ mother, Doris

Mattox; Lawrence Lee Wiggins and Freddie

Lee Wiggins, by their mother, Barbara

Wiggins, all of whom brought the action,

on their own behalf and on behalf of all

others Pennsylvania juveniles who are or

will be detained. At the time the

complaint and/or amended complaints were

filed each of the respondents was a

minor.

-iv-

TABLE OF CONTENTS

QUESTIONS PRESENTED......eeeeeeeee+ i

LIST OF ALL PARTIES.....ceeceeeeeee Lil

TABLE OF CITATIONS........ eocccesee Wi

OPINIONS BELOW... ..cccccceccccsceese § 2

STATEMENT OF JURISDICTION........+. 3

STATUTES INVOLVED......eseeeeeeeees 3

STATEMENT. .ccccccccccccccccescccsces 4

REASONS FOR GRANTING THE WRIT...... 9

CONCLUSION. ccccccccccccccccsscesees 39

APPENDIX:

la

Opinion, Court of Appeals..

Opinion, District Court......... 12a

Appendix to opinion (containing

statutes involved)............ 54a

Order, District Court........... 59a

Appendix of Statutes Involved... 60a

Judgment, Court of Appeals...... 63a

-VvV~-

TABLE OF CITATIONS

Cases Page

Abney v. United States, 431,

U.S. 641 Tt tenon beceeeeee 26

Allen v. McCurry, 449 U.S. 90

Deco eeceeeseceeceeeeeeeeee 22

Burford v. Sun Oil Co., 319 U.S.

Ti eseceaseccesceoceeses 686 SR, 96

Central States, Southeast &

Southwest Areas Health & Welfare

Fund v. Old Security Lite

Insurance Co., 600 isa 671

. 9 ¢ ., rere |

Cheyney State College Faculty v

Hufstedler, 703 F.2d /32 Cha

r. l eenereeeeeeeeeskekseetPet# ee 8

Cohen v. Beneficial Industrial

Loan Corp., 33? U.S. 541

Dt. <i 0£66666666600666650e668 22

Colorado River Water Conservation

District v. United States,

424 U.S. nt Tie tans on beac 31,34

Fair Assessment in Real Estate v.

McNary, 454 U.S. 100 (1981)... 14,15,

Gerstein v. Pugh, 420 U.S. 103

(ao sos 60 to 66668606666 29

Helstoski v. Meanor, 442 U.S.

500 a a... ~ a 600000606660 26

Cases Page

Huffman v. Pursue, 420 U.S. 492

0 0 JSP ee seeeese TTTTTT 14,15,16

22,32

Juidice v. Vail, 430 U.S. 327

Cees 66646 ebeenecee eee eeeee 16, 29,33

Matthews v. Rodgers, 284 U.S.

521i tl éce cee ois “ee eee “ee 14

Middlesex County Ethics Committee

v. Garden State Bar Association,

Ly U.S. 423 QS err 13,14

Moore v. Sims, 442 U.S. 415

Pi cuan dakesecacsaweeese da 13,14,17

31,32,35

Moses H. Cone Memorial Hospital

v. Mercury Construction Corp.,

U.S. l 19 566 6066666066 8

Nixon v. Fitzgerald, 457 U.S.

731 TaUeEl osees eee eneeeeeeeenenee 12, 23,26

28,31

O'Shea v. Littleton, 414 U.S.

Dr Teeeenaestaustecseasacecces «OST

Pennsylvania v. Williams, 294

U.S. l l Bee66ee6ee ef fe © © Qa

Pulliam v. Allen, No. 82-1432

(U.S. May 14, 1984).......... Ll

Railroad Commission of Texas v.

Pullman Co., 312 U.S. 496

ttt i. 56s 6660006666 060606 9,31

-vii-

Cases Page

Rodgers v. United States Steel

Corp., 508 F.2d 152

Cir.) cert denied, 423 U.S.

832 TEU e6eeSeeeseeeeee “ee ee - 8

Samuels v. Mackell, 401 U.S. 66

ere eta a I a 27

Schall v. Martin, No. 82-1248 &

82-1278 (U.S., June 4, 1984).. 17,33,

35

Swift & Co. Packers v. Companiana

Columbia velCaribe, 339 U.S.

684 (1950

PYTTTrTrrTrerTspTerrr+rs+srTsee

Trainor v. Hernandez, 431 U.S.

434 Ci: i atemenete kano sat ain o

Younger v. Harris, 401 U.S. 37

(l Pr PrrTTTTrTTTrTTTeTTTe ee fe ©

Statutes

28 U.S.C. § 1254(1)... cee eee

Las Tccccccccccccccs

>) >) Perrrrrrrererrr es

1331(a),1343(3)&(4).

42 U.S.C. § rrr TrTrTr Te

42 Pa. Cons. Stat. Ann.

$§ 6301-6365 (Purdon 1982)......

Be Os 66660006606060008006 08

rrr TTrTrTTrTrreyTTTtr

Dah 60066066660606660606606

SeeeO dcccocececeseeseeseeeee

SESS cccececeeceeseseseeeeeees

if | Pv TTTTTTTeTTeTTiTeTeTTeTe

-viii-

25

13,14,

15,17

9,21,31

32

IN THE SUPREME COURT OF THE

UNITED STATES

October Term 1984

No . 84-

JOSEPH H. STANZIANI, et al.,

Petitioners

Vv.

KASEEM COLEMAN, et al.,

Respondents

PETITIO R re)

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioners, on behalf of

themselves, and all present and future

Pennsylvania juvenile court judges,

masters, and probation officers, respect-

fully petition for a writ of certiorari

to review the judgment of the United

States Court of Appeals for the Third

Circuit issued in docket # 83-1730.!

lpocket # 983-1730 was an appeal

from the district court's refusal to

abstain. Petitioners are not seeking

review of the consolidated case of

83-3539--their Alternative Petition for

Writ of Mandamus or Prohibition.

je

iii

OPINIONS BELOW

The opinion of the Third Circuit

(la-lla) is reported at 735 F.2d 118.

The opinion of the district court

(12a-59a) is reported at 570 F.Supp. 679

AS Mb Mink pa a os

STATEMENT OF JURISDICTION

The order of the court of

appeals (65a) was entered on June 4,

1984. On August 27, 1984, Justice

Brennan extended the time within which

to file a petition for a writ of certio-

rari to October 2, 1984. The jurisdic-

tion of this Court is invoked under 28

U.S.C. §1254(1).

STATUTES INVOLVED

The relevant portions of statutes

involved are set out verbatim in the

appendix to this petition. They are: 42

U.S.C. §1983 (€@%a); 28 U.S.C. §1291

(60a); 42 Pa. Cons. Stat. Ann. $6325,

6335 and 6341 (Purdon 1982) (54a, 55a,

and 56a-58a, respectively, which were

included in an appendix to the district

court opinion); and 42 Pa. Cons. Stat.

Ann.§ 6301(b) (6la), §6331 (61la-62a),

and §6332(a) (Purdon 1982) (62a).

afin

STATEMENT

This is a civil rights class

action brought under 42 U.S.C. §1983 in

federal district court ” against all

present and future juvenile court judges,

masters, and probation officers in the

entire Commonwealth of Pennsylvania

(hereinafter judicial officers].° The

suit challenges, both facially and in

its application, the constitutionality

of some provisions of Pennsylvania's

Juvenile Act * which direct the conduct

of judicial officers. (12a-13a) The

challenged provisions authorize detention

of juveniles if necessary to protect the

2Jurisdiction of the district court

was based on 28 U.S.C. §$§1331(a), 1343(3)

and (4).

3Montgomery County, Pennsylvania is

also named in this suit.

442 Pa. Cons. Stat. Ann. §§6301-

6365 (Purdon 1982).

juveniles, others, or property or to

prevent the juveniles from absconding. >”

The plaintiffs are four named

juveniles who brought the action on

behalf of all present and future

juveniles who are or will be detained.

(l2a, 14a). The juveniles sought an

injunction and declaratory judgment.

(4a). Additionally, two named juveniles

sought monetary damages against’ the

*non-judicial" county defendants. (34a).

"42 Pa. Cons. Stat. Ann. §§6325,

6335, 6341 (Purdon 1982). (54a,

In a 117 paragraph, 39 page

complaint, the juveniles challenged

these provisions on numerous’ grounds:

due process, including assertions that

such detentions are unconstitutional

infliction of punishment, that the

statute is overbroad and vague, that its

enforcement is arbitrary and capricious

and that it fails to set forth a burden

of proof; Sixth Amendment ; Eighth

Amendment; and Equal Protection.

Among the procedural safeguards

of the Juvenile Act, are requirements

that before any detention can occur, an

“officer of the court" (juvenile proba-

tion officer) investigates whether

detention is necessary® and that a

judicial hearing on the need for the

detention be held within 72 hours of

initial detention.’ In the complaint,

the named juveniles admitted that each

had been afforded these rights.® The

complaint did not allege that any named

juvenile raised his federal constitution-

al challenges in his state proceedings

nor that any attempted to challenge his

642 Pa. Cons. Stat. Ann. $6331

(Purdon 1982). (6la-62a)

742 Pa. Cons. Stat. Ann. §6332(a)

(Purdon 1982). (62a)

Spetention hearings were given to

two within 24 hours and to the other two

within 48 hours of their arrests.

detention through any other state

mechanism such as an appeal of the

detention order or a petitio for a writ

of habeas corpus.

The defendants filed a motion

for judgment on the pleadings urging the

district court to dismiss on several

grounds including abstention. (13a-1l4a).

By order and opinion dated September 14,

1983, the district court rejected each of

the asserted grounds for dismissal and

denied the motion. (12a-58a). On

September 26, 1983, defendants filed a

notice of appeal, appealing only from

the district court's refusal to abstain.

(6a). The circuit court's jurisdiction

was invoked under the collateral order

doctrine. (8a). The juveniles

challenged the appealability of the

district court's order through a motion

to dismiss the appeal. (6a). The Third

Circuit granted that motion holding that

refusal to abstain is not an appealable

order.” (10a).

9Al though defendants believed the

order to be appealable, they filed an

alternative petition for a writ of

prohibition or mandamus requesting the

circuit court to reach the merits of the

abstention questions even in the event

it concluded the district court's order

was not appealable. Such practice had

been employed in several cases in the

Third Circuit. See e. Che State

College Faculty v. Hu stedier, 753 F.2d

732, EEF 736 sae Cir. “T583)5 Rodgers v.

United States Steel Corp., 508 F.2d 1

59 (3d Cir.), cert. denied, 423 U.S.

832 (1975); see also Moses HH. Cone

Memorial Hospital Ve Mercur

Construction Corp., 460 U.S. 1 (1

The court denied the petition. (lla).

REASONS FOR GRANTING THE WRIT

This case presents questions of

great importance to the continuing

vitality of federalism and comity, as

applied to the judicial branch of

states' governments. This Court has

long recognized the importance of

federaiism and comity and has formalized

those concepts in the abstention

10 The degree to which

doctrines.

those concepts are meaningful, however,

depends, in large part, on when a final

determination of the applicability of

abstention is made.

The Court of Appeals held that a

pretrial refusal to abstain is not

immediately appealable. The effect of

this decision, coupled with the district

10See Younger _v. Harris, 401 U.S.

37 (1971); Burford v. Sun Oil Co., 319

U.S. 315 (1943); Railroad Comm'n v.

Pullman Co., 312 U.S. 496 (1941); see

also Pennsylvania v. Williams, 294 U.S.

176 (1935).

=9=

—_—_—_—EEee

court's erroneous refusal to abstain is

that the state judiciary must participate

in burdensome discovery, be subjected to

a trial in federal court, and, perhaps,

be required to implement and enforce an

injunction before an erroneous refusal

to abstain can be overturned. This

result renders the states‘ rights, which

are protected by the concepts of comity

and federalism, abstract doctrines with

little practical value, particularly as

applied to the states‘ judiciaries. Many

of the evils which the _ abstention

doctrines seek to avoid will have

occurred and, conversely, many of the

benefits will have been lost irretrieva-

bly if the appeal must wait until the

trial has been concluded. This Court

should grant this petition to reaffirm

the concepts of federalism and comity

and restore their vigor.

-10-

la. The importance of abstention

in cases against states‘ judiciaries was

highlighted by this Court's decision in

Pulliam v. Allen, No. 82-1432 (U.S. May

14, 1984); and, that case demonstrates

how vital are immediate appeals of

pretrial denials of abstention. In

Pulliam, this Court held that judicial

immunity does not protect individuals

acting in a state judicial capacity from

injunctive relief and attorneys’ fees

because, in part, principles of federai-

ism and comity provide adequate protec-:

tion. The Court stated: "We reaffirm

the validity of [comity and federalism]

principles and the need for restraint by

federal courts called on to enjoin the

actions of state judicial officers. We

simply see no need to reinterpret the

principles now as stemming from the

doctrine of judicial immunity." Slip op.

at 16.

@lle

Thus, the only protection

afforded state judicial officers against

the burden, cost, and diversion from

duty occasioned by defending often

complex and time-consuming civil rights

litigation, such as the case at bar, is

abstention. Yet, if the protection of

abstention cannot be obtained until

after a trial, it is, indeed, small

protection.

The protection from federal

intrusion that would have been afforded

under judicial immunity would have

included the right to appeal from a

pretrial decision denying immunity. Cf.

Nixon v. Fitzgerald, 457 U.S. 731 (1982)

(denial of absolute presidential

immunity). The alternative protection

recognized by the Court--abstension--is

adequate only if pretrial refusals to

abstain are appealable.

=) 2-

b. Similarly, many of the impor-

tant national policies embodied in

abstention would be thwarted if an

erroneous refusal to abstain could be

corrected only after trial. These

polices, although articulated somewhat

differently in various cases, include:

(1) respect for the state's role in

developing and enforcing its important

policies free from unwarranted federal

interference; /+ (2) recognition that

our federal government is best served by

state institutions per forming their

separate functions in their separate and

diverse ways; ?? (3) acknowledgment that

state courts are competent to safeguard

11lMiddlesex County Ethics Committee

v. Garden State Bar Association, 457 U.S.

° ); Moore v. Sims, 442 U.S.

415, 429 (1979); Trainor v. Hernandez,

431 U.S. 434, 441, 443-44 (1977).

l2mMiddlesex, 457 U.S., at 431.

=) 9e

13 (4)

federal constitutional rights;

recognition that state courts should, at

the least, be given the first opportunity

to address constitutional attacks on

state policy implementation; +“ and,

(5) recognition that by doing so, a state

is enabled on its own to correct any

problems with its practices. !> In

short, comity and federalism encompass

“'CtyJhe scrupulous regard for the right-

ful independence of state governments

which should at all times actuate the

federal courts.'" Fair Assessment in

Real Estate v. McNary, 454 U.S. 100, 116

(1981), quoting, Matthews v. Rodgers, 284

U.S. 521, 525 (1932). This national

l3Middlesex, 457 U.S., at 431;

Moore, 442 U.S., at 430 Trainor, 431

U.S., at 442-43; Huffman v. Pursue, 420

U.S. 592, 604, 611 (i975).

l4moore, 442 U.S., at 427, 429-30;

Trainor, 431 U.S., at 445.

lSmMoore, 442 U.S., at 429-30.

-14-

policy of non-intervention is strongest

when the state judicial system is

involved. See Trainor v. Hernandez, 431

U.S. 434, 441 (1977); Huffman v. Pursue,

420 U.S. 492, 603-04 (1975).

As is apparent from the very

articulation of these policies, the

federal intrusion which abstention seeks

to avoid is not limited to the intrusion

resulting from a federal court order, but

also includes the intrusion resulting

from maintenance of the federal suit

itself. See particularly, Trainor, 431

U.S., at 445; see also Fair Assessment

in Real Estate Association v. McNary,

454 U.S. 100, 114 (1981) (comity

prohibited federal court from

entertaining a section 1983 damages

Claim challenging tax assessments in

which Court noted “the very maintenance

of the suit” is intrusive. )

-15-

Of the policies identified above,

the one most obviously thwarted by the

maintenance of this federal suit is the

acknowledgment that state courts are

competent to safeguard federal constitu-

tional rights. Trying the state judici-

ary in federal court, rather than requir-

ing juveniles to raise constitutional

claims in the state proceedings they

challenge. "“‘can readily be interpreted

as reflecting negatively upon the state

court's ability to enforce constitutional

principles.'" Juidice v. Vail, 430 U.S.

327, 336 (1977), quoting, Huffman v.

Pursue, 420 U.S. 592, 604 (1975). But

just as obviously, if state judicial

defendants can appeal a refusal to

abstain only after the federal court

issues its decision on the merits, the

federal court--not the state court--will

have first addressed the constitutional

attacks on the state system and the state

«26<

will have been deprived of the opportuni-

ty to take corrective action, if

necessary, On its own. See Trainor, 431

U.S., at 445. In short, “displacement

of state courts by those of the National

Government," which is a "threat to our

federal system," will have occurred.

Moore v. Sims, 442 U.S. 415, 423 (1979).

The very pendency of the federal

lawsuit also interferes with the state's

development and enforcement of its impor-

tant polictes. In this case the impor-

tant policies concern operation of the

juvenile justice system--an area _ in

which states have a unique role. See

Schall Ve Martin, Nos. 82-1248 &

82-1278, slip op. at 9, 11 (U.S. June 4,

1984); Moore, 442 U.S., at 435. This

case has called into doubt the validity

of the juvenile detention decision-

making process. Juvenile judges,

masters, and probation officers must make

ai P=

detention decisions on a daily basis.

But, they do so knowing that there is a

possibility that their actions later may

be deemed to have been unconstitutional.

Thus, the very pendency of the federal

suit is likely to have "“a_ chilling

effect" even on those judicial officers

who are implementing the statute in good

faith. See Fair Assessment, 454 U.S.,

at 115. Avoidance of this’ chilling

effect is one purpose of abstention.

See ibid.

The conduct of the trial aiso

would be intrusive. At trial, state

court judges would testify before the

federal court judge, or otherwise intro-

duce evidence, regarding what thought

processes were and are used in making

detention decisions. The state judges

would be justifying those decisions to

the federal court. In effect, the

federal court would be a source of

~19-

appellate review for state court deten-

tion decisions, in contravention of

abstention principles. See id, 454

U.S., at 114. This federal intrusion is

particularly offensive when, as in this

case, the state defendants “are not one

or two isolated" officials, but the

entire state juvenile court judiciary.

Additionally, if state judicial

officers must undergo a trial before an

erroneous refusal to abstain can be

reversed, the unnecessary costs to the

public will be high. There will be

needless expenditure of time by state

judicial officials which not only will

be expensive but also will distract the

officials from performing their judicial

duties. For instance, the plaintiffs in

this case have already requested that

each of the juvenile court judges and

probation officers throughout the state

=19=

(numbering in excess of 700) respond to

numerous interrogatories. And, of

course, the judicial officers wouid have

to expend considerable time in prepara-

tion of their own defense. Because the

juveniles challenge the constitutionality

of the detention provisions as applied,

a thorough defense will require an

explanation of the application of the

statute in each of the State's 59

judicial districts.

The harm resulting from this

improper federal intrusion cannot be

cured by a post-trial reversal of a

refusal to abstain. The dignity and

integrity of, and public trust in, the

state judicial system is necessarily

eroded by a federal court trial of state

judicial officers. If after trial the

court of appeals rules that the district

court should have abstained, the lost

dignity, integrity, and public confidence

=20-

cannot be fully restored. Nor can the

disrespect of the state system shown by

maintenance of the federal suit be

eradicated. Such results do not foster

"Our Federalism". Younger v. Harris,

401 U.S. 37, 45 (1971).

If the refusal to abstain were

appealable (and reversed) prior to trial,

the federal intrusion and the problems

it creates would not exist. The

juveniles would be required to raise

their constitutional claims in the

proceedings they challenge. State

judicial officers would not be

defendants; rather, state judges would

be adjudicators of the constitutional

claims and could make their detention

decisions based on their determination

of the federal constitutional claims.

If the juveniles’ prevailed, federal

interference in this state issue would

be avoided. If they were unsuccessful,

=)

ee

after the constitutional issues were

litigated through the state court

system, the juveniles would have a right

to appeal directly to this Court. 28

U.8.C. $1257. See Huffman v. Pursue,

420 U.S. 592, 605-06 (1975); see also

Allen v. McCurry, 449 U.S. 90 (1980).

This is how our federalist system was

intended to work, and this is how it

must work.

c. The Third Circuit completely

ignored the vital national policies

embodied in the abstention doctrines in

holding that the district court's refusal

to abstain was not an appealable

collateral order. (7a-10a).

The collateral order doctrine

(first announced in Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541

(1949)) permits immediate appeal of an

otherwise interlocutory order if that

order "'conclusively determine[s] the

=22-

disputed question, resolve[s] an impor-

tant issue completely separate from the

merits of the action and [is] effective-

ly unreviewable on appeal from a final

judgment’. . . . As an additional

requirement, . . . an interlocutory order

must ‘presen{t] a serious and unsettled

question.'" Nixon v. Fitzgerald, 457

U.S. 731, 742 (1982). (Citations

omitted).

The Third Circuit held (virtually

without discussion) that a refusal to

abstain is not an appealable collateral

order because it is not final, it is not

separate from the merits, and it is

reviewable on appeal from a final

judgment. (7a-10a). That decision is

so broad that a pretrial refusal to

abstain may not be appealed under any

=233-

circumstances. !® Contrary to the Third

Circuit's conclusions, each of the

requirements of the collateral order

doctrine is met.

First, the nature of the states'

rights protected by the policies of

federalism and comity make a denial of

abstention, at least in part, “effective-

ly unreviewable" on appeal. Where, as

l6fhe Third Circuit's opinion cited

no case in which the appealability of a

refusal to abstain was at issue. The

parties identified only one--Central

States, Southeast and Southwest Areas

Health and Welfare Fund v. Old Securit

Life Insurance Co., 600 F.2d 671 (Teh

Cir. 1979). Unlike the Third Circuit's

holding in this case, Central States

does not establish that a refusal to

abstain is never appealable. Rather,

applying the collateral order doctrine

requirements the Seventh Circuit held

that some requirements of that doctrine

were not met given the specific facts of

the case. The law was settled that

federal (not state) courts had exclusive

jurisdiction so that abstention was

inappropriate and, consequently, no

right was irretrievably lost if appeal

was delayed until after trial. In

Central States, state judicial officers

were not themselves defendants.

-34-

here, appeal after trial “would be an

empty rite" because the very rights

sought to be vindicated would be lost or

seriously undermined by the trial, the

collateral order doctrine applies.

Swift & Co. Packers Vv. Compania

Colombiana Del Caribe, 339 U.S. 684, 689

(1950).

The principles of comity and

federalism are designed to protect the

state judiciary from being tried in

federal court for actions taken in an

adjudicatory capacity when state court

procedures offer an adequate opportunity

to raise the federal claims; that is,

they are protected from trial itself.

Although this Court has never explicitly

so held, its articulation of the federal

policies underlying abstention, as

summarized above, implicitly incorporate

this principle.

=25-

Where the defense asserted is a

right not to be tried and the defendant

can take no further steps to avoid trial,

a rejection of that defense is appealable

under the collateral order doctrine.

See Helstoski v. Meanor, 442 U.S. 500,

506-08 (1979)(claim that speech and

debate clause protected from trial);

Abney v. United States, 431 U.S. 651,

659-61 (1977)(claim that double jeopardy

protected defendant from trial); see

also Nixon v. Fitzgerald, 457 U.S. 731

(1982) (claim that absolute immunity

protected defendant from trial). Like

the defendants in Helstoski and Abney,

the petitioners state judicial officers

are contesting being “‘hale[d] .. .

into [{federal] court to face trial."

Helstoski, 442 U.S., at 507, quoting

Abney, 431 U.S., at 659.

-26-

Secondly, the district court's

refusal to abstain conclusively resolved

the abstention question. At the comple-

tion of discovery trial will commence.

Defendants can do nothing more to prevent

trial. Absent the district court judge

sua sponte changing his mind, there is

no effective opportunity for the absten-

tion issue to be raised again prior to

triar.)’

Thirdly, and again contrary to

the Third Circuit's holding, abstention

is an important issue completely

separate from the merits. The very

essence of abstention is that a federal

court not address the merits of the

constitutional claims. See, @.g-,

Samuels v. Mackell, 401 U.S. 66, 73

l?wnile, theoretically, defendants

could file a motion for summary judgment,

defendants are unaware of any additional

information or argument that could be

made on the abstention issue.

x\>=

(1971) (relief “should have been denied

without consideration of the

merits"). 2°

This Court frequently has

underscored the importance of

safeguarding “Our Federalism" and the

threat posed by federal court

intervention.??

Lastly, this case present

“serious and unsettled” questions?° --

(a) the extent to which abstention

prohibits a federal court from adjudica-

iv

ting a civil rights claim brought against

18fhe Third Circuit also said that

abstention was not separate from the

merits because it depended on pleadings

and proof. (9a). Certainly, whether

abstention is appropriate depends on the

Pleadings (i.e., who is sued, what claims

are being raised, and what relief is

sought) but it does not depend on the

merits of the claim. And, if pleadings

establish appropriateness of abstention,

there is no need for further proof.

l9see cases cited at n.n. 11-15

supra.

20a question is unsettled unless

this Court has ruled on it. See Nixon

v. Fitzgerald, 457 U.S. 731, 743 (1982).

-28-

state judicial officers for their

performing duties under an allegedly

unconstitutional statute or in an

allegedly unconstitutional manner; and,

(b) whether the abstention doctrines

apply when monetary damages (against

non-judicial defendants), as well as

declaratory and injunctive relief, are

sought. Although this Court has ruled

on the applicability of abstention in

some cases in which state judicial

officers were defendants, it has not

provided definitive guidance on when

abstention is appropriate. “2 Nor, has

the Court specifically held that absten-

tion doctrines apply in a $1983 damages

2lsee, e.g., Juidice v. Vail, 430

U.S. 327 ( 7); Gerstein v. Pugh, 420

U.S. 103 (1975); O*Shea v. Littleton,

414 U.S. 488 (1974).

=29<

case. ae

To the extent this Court has

given guidance in the areas--that is, to

the extent the abstention issues are

"settled"--the district court's refusal

to abstain was contrary to that guidance

(see below). Certainly defendants'

right to appeal an erroneous refusal to

abstain should not be denied because the

refusal is clearly erroneous.

Ze Because of the important,

serious, and unsettled questions

presented by the abstention issue in

this case, petitioners also urge this

Court to accept jurisdiction of that

issue and to remand the case directing

the district court to abstain. Tnis

22This Court has held, however,

that general principles of comity barred

a §1983 damages claim challenging

administration of state tax systems.

Fair Assessment in Real Estate

Association v. McNary, 454 U.S. 100

(1981).

~~

Court clearly has authority to do so.

Nixon v. Fitzgerald, 457 U.S. 731, 743

n. 23 (1982). The "question is a pure

issue of law" and “concerns of judicial

economy fully warrant [this Court's]

decision of the important question

presented." Ibid.

Each of the three "distinct but

23

related lines of abstention cases"

--Pullman, Burford, and Younger absten-

24

tion is implicated in this case and,

in their totality, overwhelmingly demon-

strate the need for abstention here.

Each “reflect{s] the same sensitivity to

the primacy of the State in the interpre-

23Moore v. Sims, 442 U.S. 415, 427

(1979).

24see Railroad Commission V.

Pullman Company, 312 U.S. 496 {1941),

Burford v. Sun Oil Company, 319 U.S. 315

(1943), and Younger v. Harris, 401 U.S.

37 (1971), respectively. See also

Colorado River Water Conservation

District v. United States, 424 U.S. 800

(1979) for a synopsis of each type.

aGin

tation of its own laws and the cost to

our federal system of government inherent

in federal-court interpretation and

subsequent invalidation of parts of an

integrated statutory framework." Moore

v. Sims, 442 U.S. 415, 427 (1979).

First, Younger abstention

applies because the juveniles seek

federal court interference with state

judicial proceedings and there was an

adequate opportunity for them to raise

their federal constitutional claims in

the state proceedings. Ali of the named

juveniles had detention hearings prior

to initiation of their federal lawsuits.

None raised his federal constitutional

claims in his state hearing; and, none

attempted to appeal his detention order.

The juveniles’ faiiure to do so does not

nullify the applicability of Younger.

See Moore v. Sims, 442 U.S. 415, 430 n.

12 (1979); Huffman v. Pursue, 420 U.S.

=—Te

592, 609 (1975); see also Juidice v.

Vail, 430 U.S. 327, 330, 337 (1977)

(dicta).

In this case, plaintiffs seek

federal intervention not merely into a

state civil or even criminal justice

system in which abstention concerns are

very strong, but in to the. state's

juvenile judicial system in which

abstention concerns are even stronger.

The state's juvenile system is akin to

the criminal system but the~ state

concerns are greater when children are

involved; and the issues are _ wmore

complex. The state has "a parens patriae

interest in preserving and promoting the

welfare of [children]." Schall v. Martin,

82-1248 & 82-1278, Slip op. at 9 (U.S.

June 4, 1984).

Second, the juvenile justice

system is both comprehensive and complex.

It balances several competing societal

=~33-

interests: protecting children from the

criminal system, providing children

adequate due process safeguards, and

maintaining adequate public protection.

See 42 Pa. Cons. Stat. Ann. §6301(b)

(Purdon 1982). (6la). A federal court's

tampering with one aspect risks throwing

the system out of balance. Consequently,

abstention under the Burford doctrine is

appropriate. See Colorado River Water

Conservation District v. United States,

424 U.S. 800, 814 # (1976). This

disruption is less likely to occur if

state courts address the issues. State

courts deal with this system on a daily

basis and are keenly aware of the

competing interests and the balancing

act required to maintain the system's

vitality. State courts are in a better

position to determine what corrective

procedures, if any, are appropriate.

~36=-

Third, the subject matter raised

here is not one on which Pennsylvania

state courts have spoken before,

therefore, Pullman abstention is

implicated. This Court has stated that

broad constitutional attacks on state

statutes, such as are presented here,

almost always offer an opportunity for

narrowing constructions and that federal

court interference prevents the

evolution of state policies by state

tribunals. Moore v. Sims, 442 U.S. 415,

429-30 (1977). More particularly, in

Schall _v. Martin, 82-1248 «& 82-1278.

(U.S. June 4, 1984), a case raising

similar federal constitutional challenges

to a similar juvenile act provision, the

Court stated that state court review of

detention decisions on a case-by-case

basis was appropriate; in this way,

state courts "may well flesh out" the

state statute. Id., slip op. at 27.

a33<

Abstention requires that state judges be

given an opportunity to do what they are

supposed to do--interpret state statutes

in light of constitutional requirements.

Furthermore, this is not an

isolated case affecting one juvenile or

one judge. The issues affect the entire

state juvenile justice system; they will

have ramifications for aspects of the

system beyond detention because detention

is interrelated with other concepts in

the juvenile act. Again, abstention

concerns are very strong in cases of such

system-wide impact. See Fair Assessment

in Real Estate Association v. McNary, 454

U.S. 100, 114-15 (1981).

Not only is the very existence

of the federal suit intrusive, as

discussed above, but a grant of the

relief sought would be additionally

intrusive. The juveniles seek a federal

court order controlling juvenile court

«aSG—

judges’ consideration of matters relating

to the detention decision. The complaint

requests continued federal court juris-

diction to insure state court compliance.

The possibility of state judicial

officers being charged with contempt

exists in perpetuity. Abstention

precludes such an entanglement of the

federal courts with the state courts.

See O'Shea v. Littleton, 414 U.S. 488,

501-02 (1974).

While the constitutional issues

raised should be addressed, they must be

addressed in the first instance by state

courts. As this Court frequently has

emphasized, state courts are presumed

competent to handle federal constitution-

al issues.*> Pennsylvania state courts

have not demonstrated an inability to do

so. By failing to raise their federal

25see cases cited at n.13 supra.

a3

constitutional issues in their state

proceedings (and, instead, raising them

for the first time in federal court),

plair iffs have deprived the state courts

of the right to rule on their own

procedures, the right to correct any

problems they might perceive in those

procedures, and the right to construe

the statute narrowly--altering or elimi-

nating the constitutional concerns.

This deprivation can be corrected only

by this Court accepting jurisdiction of

this case and remanding with directions

to abstain. It is simply unnecessary

and inappropriate for a federal court to

interfere at this time.

=3@-

Conclusion

For these reasons, a writ of

certiorari should issue to review the

decision of the Third Circuit.

Respectfully submitted,

Leroy S. Zimmerman

Attorney General

By: Kathleen F. McGrath

Deputy Attorney General

David M. Donaldson

Deputy Attorney General

Andrew S. Gordon

Deputy Attorney General

Allen C. Warshaw

Deputy Attorney General

Chief, Litigation Section

Office of Attorney General

15th Fl., Strawberry Square

Harrisburg, PA 17120

(717) 783-1471

Howland Abramson, Esquire

Assistant Legal Counsel to

the Court Administrator

Office of the Court

Administrator

1414 Three Penn Building

Philadelphia, PA 19102

(215-563-4523

Walter S. Jenkins, Esquire

Sweeney, Sheehan & Spencer

Three Penn Center Plaza

Philadelphia, PA 19102

(215) 563-9811

Attorneys for Petitioners

Date: October 2, 1984

a$@u

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 83-1730

COLEMAN, KASEEM, a minor, by his mother

and next friend, DELORES LEE; and

MATTOX, AARON, a minor, by his mother

and next friend, DORIS MATTOX; WIGGINS,

LAWRENCE LEE, and WIGGINS, FREDDIE LEE,

minors, by their mother and next friend,

BARBARA WIGGINS, on their own behalf and

on behalf of all others’ similarly

situated,

Appellees

Vv.

JOSEPH H. STANZIANI and LAWRENCE A,

BROWN, individually and in their

official capacities as Judges of the

Montgomery County Court of Common Pleas,

Juvenile Division, on their own behalf

and on behalf of all other Juvenile

Court Judges similarly situated in the

Commonwealth of Pennsylvania; ANTHONY

GUARNA, individually and in his official

capacity as Chief Juvenile Probation

Officer, Montgomery County, on his own

behalf and on behalf of all other

juvenile probation officers similarly

situated in the Commonwealth of

Pennsylvania;

THE MONTGOMERY COUNTY COURT OF COMMON

PLEAS, JUVENILE DIVISION; and MONTGOMERY

COUNTY, PENNSYLVANIA,

Appellants

la

No. 83-3539 ——

JOSEPH H. STANZIANI and LAWRENCE A.

BROWN, individually and in their

official capacities as Judges of the

Montgomery County Court of Common Pleas,

Juvenile Division, on their own behalf

and on behalf of all other Juvenile

Court Judges similarly situated in the

Commonwealth of Pennsylvania;

ANTHONY GUARNA, individually and in his

official capacity as Chief Juvenile

Probation Officer, Montgomery County, on

his own behalf and on behalf of all

other juvenile probation officers

similarly situated in the Commonwealth

of Pennsylvania;

THE MONTGOMERY COUNTY COURT OF COMMON

PLEAS, JUVENILE DIVISION;

and

MONTGOMERY COUNTY, PENNSYLVANIA,

Petitioners

ve

HONORABLE JOSEPH S. LORD, III,

Nominal Respondent

KASEEM COLEMAN, a minor, by his mother

and next friend, DELORES LEE; AARON

MATTOX, a minor, by his mother and next

friend, DORIS MATTOX; LAWRENCE LEE

WIGGINS and FREDDIE LEE WIGGINS, minors,

by their mother and next friend, BARBARA

WIGGINS, on their own behalf and on

behalf of all others similarly situated,

Actual Respondents

(Petition for Writ of Mandamus. or

Prohibition)

2a

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN

DISTRICT OF PENNSYLVANIA

BEFORE: GIBBONS and HUNTER, Circuit

Judges, and STAPLETON, District Judge*

(Opinion filed June 4, 1984)

Kathleen F. McGrath (Argued)

David M. Donaldson

Deputy Attorneys General

Andrew S. Gordon

Deputy Attorney General

Allen C. Warshaw

Chief, Litigation Section

Office of Attorney General

15th Fl. Strawberry Square

Harrisburg, PA 17120

Howland Abramson, Esqurie

Assistant Legal Counsel to

the Court Administrator

Office of the Court

Administrator

1414 Three Penn Building

Phildelphia, PA 19102

Walter S. Jenkins, Esquire

Sweeney, Sheehan & Spencer

Three Penn Center Plaza

Philadelphia, PA 19102

Attorneys for Appellants

Hon. Walcer Kk. Stapleton, United

States District Judge for the District

of Delaware, sitting by designation.

3a

Lawrence M. Schall, Esquire

(Argued )

Robert G. Schwartz, Esquire

Juvenile Law Center of

Philadelphia

112 S. 16th Street, Suite 703

Philadelphia, PA 19102

Harry F. Swanger, Esquire

John R. Bird, Esquire

National Juvenile Law Center

3701 Lindell Boulevard

St. Louis, MO 63178

Attorneys for Appellees

OPINION OF THE COURT

GIBBONS, Circuit Judge:

Several juveniles have filed in

the United States District Court for the

Eastern District of Pennsylvania a class

action for injunctive, declaratory and

other relief pursuant to 42 U.S.C. §1983

(Supp. V 1981), challenging the

constitutionality of the “preventive

detention" provisions of the Pennsylvania

Juvenile Act, 42 Pa. Cons. Stat. Ann. §$§

6325, 6335, 6341 (Purdon 1982). The

4a |

named aefendants are Montgomery County

Juvenile Court Judges Stanziani- and

Brown. Montgomery County Juvenile

Probation Officer Guarna, the Montgomery

County Juvenile Court, and the County.

The trial court certified a plaintiff

class consisting of all juveniles who

pursuant tc the challenged statutes are

now, or will be in the future, detained

prior to a disposition hearing or trial.

The court also certified a defendant

Class composed of all Juvenile Court

Judges, masters, and probation officers

who are now, or will be in the future,

responsible for conducting preventive

detention proceedings under the

challenged statutes.

The defendants moved in the

district court for judgment on the

pleadings, and for partial

decertification of the plaintiff class.

5a

They contended that Younger v. Harris,

401 U.S. 37 (1971) required a dismissal

of the complaint, or that abstention on

the authority of Railroad Commissio. v.

Pullman Co., 312 U.S. 496 (1941) or

Burford v. Sun Oil Co., 319 U.S. 315

(1943) was appropriate. The trial court

denied the motions for judgment on the

pleading and for partial decertification

of the class on September 14, 1983, and

scheduled a discovery conference for

October 6, 1983.

On September 26, 1983, the

defendants filed a notice of appeal from

the order denying their motion for

judgment on the pleadings. The class

representative plaintiffs moved to

dismiss that appeal as_ interlocutory.

The defendants then filed a petition for

a writ of mandamus directing the district

judge to grant their motion. We dismiss

the appeal and deny mandamus.

6a

I.

Appealability

The district court has. neither

granted nor denied injunctive relief. Cf.

28 U.S.C. §1292(a)(1)(1982). Nor has the

court entered a final judgment on any

arguably separate claim. Cf. Fed. R.

Civ. P. 54(b). Nor has the court

determined that there is a controlling

question of law with respect to which

there is a substantial ground for

difference of opinion which should be

resolved in an immediate appeal. Cf. 28

U.S.C. §1292(b) (1982). Indeed, the court

was not asked to certify any such

controlling question. Thus we have

appéllate jurisdiction only if an order

denying a motion for judgment on the

Pleadings is a final j»dgment within the

meaning of 28 U.S.C. §1291 (1982). An

order denying a Rule 12(c)~ motion,

however, is a prime example of an

interlocutory order.

7a

The Attorney - General of

Pennsylvania, who appears for the

defendants, urges vehemently that when he

makes a motion to dismiss on Younger v.

Harris grounds the denial of such a

motion must be treated as aée final

judgment - within the collateral order

doctrine. Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 546-47 (1949).

In order to qualify as collaterally

final, however, "Ct]he order must

conclusively determine the disputed

question, resolve an important’ § issve

completely separate from the merits of

the action, and be effectively

unreviewable on appeal from a final

judgment." Firestone Tire & Rubber Co.

v. Risjord, 449 U.S. 368, 375 (1981)

quoting Coopers & Lybrand v. Livesay, 437

U.S. 463, 468 (1978). The order appealed

from satisfies none of these criteria.

It does not conclusively determine

8a

anything, since the district court is

free to reconsider it at any time. It is

not separate from the merits, because a

Younger v. Harris ruling requires a

determination of the appropriateness of

the requested relief in light of the

pleadings and proof. It is not

unreviewable on appeal from aée final

judgment, for scores of Younger v. Harris

issues have been heard and decided in

such appeals.

The Attorney General urges that

the order should be treated as a final

rejection of a claim of immunity. We

have rejected a similar contention in

Forsyth v. Kleindienst, 729 F.2d 267,

273-74 (3a Cir. 1984) (Forsyth II).

Moreover the immunity claim is in this

instance a highly dubious one, since

injunctive and declaratory relief are

sought. See Pulliam v. Allen, 52

9a

U.S.L.W. 4525 (1984); Conover Vv.

Montemuro, 477 F.2d 1073, 1094 (3d Cir.

1973)(Gibbons, J., concurring). Thus the

arguement for enlarging the collateral

order doctrine is in this case far weaker

than with respect to immunity from a

claim for money damages made in Forsyth

II for a former high executive branch

officer of the federal government.

“C{TJhis Circuit has consistently

maintained that the collateral order

doctrine should be sparingly applied...."

Akerly v. Red Barn System, Inc., 55] F.2d

539, 543 (3d Cir. 1977). The Attorney

General has referred us to no case

hoiding that it should be extended so as

to embrace the denial of a motion to

dismiss on abstention grounds.

The motion to dismiss the appeal

will be granted.

10a

II.

Mandamus

Alternatively, the Attorney

General urges that we should issue a writ

of mandamus directing the trial court to

dismiss the complaint. The case is one

over which the trial court has undoubted

subject matter jurisdiction. The order

disposed of a motion within that

jurisdiction. The merits of the order

are reviewable on appeal from a final

judgment. An abstention decision

involves the exercise of discretion.

Mandamus to control the exercise of that

discretion is wholly inappropriate.

The petition for mandamus will be

denied.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

lla

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KASEEM COLEMAN, et al., : CIVIL ACTION

Ve 3 No. 81-2215

JOSEPH STANZIANI, et al. :

OPINION

Lord, S.J. September 14, 1983

Plaintiffs have brought’ suit

under 42 U.S.C. §1983 challenging the

constitutionality ‘of the Pennsylvania

Juvenile Pretrial Detention’ statutes.

The pertinent portions are attached

hereto as an appendix. Plaintiffs seek

abintee. declaratory and injunctive

relief. I have certified a plaintiffs'

and a defendants’ class. Plaintiffs’

class consists of all allegedly

delinquent juveniles in diieutvente who -

are or will in the future be detained

before adjudication pursuant to 42 Pa.

Cons. Stat. Ann. §§ 6625 and 6335, and

12a

all adjudicated delinquent juveniles who

are now or in the future will be detained

before their disposition hearing pursuant

to § 6341.

The defendant class is composed

of all juvenile court judges and masters

and all juvenile probation officers in

Pennsylvania who are now or who will be

responsible for hearing delinquency

matters and conducting detention

procedures.

De fendants have moved for

judgment on the pleadings and/or for

partial decertification of plaintiffs'

class. Defendants argue that named

plaintiffs do not have standing to

represent the interest of future pretrial

detainees; that those named plaintiffs

who were in Getention at the time of

filing the complaint must bring a habeas

corpus action, exhausting their remedies

in state court, rather than a suit under

_ 13a

§ 1983; and that Younger v. Harris, 401

U.S. 37 (1971) or Railroad Commissioner

v. Pullman, 312 U.S. 496 (1941) or

Burford v. Sun Oil Company, 319 U.S. 315

(1943) requires that I abstain from

deciding the merits of the case. I shall

deny defendants‘ motion.

I. Standing

There are four named plaintiffs.

At the time of the filing of the

complaint, plaintiffs Coleman and Mattox

had already been releasei from detention;

plaintiffs Lawrence and Freddy Wiggins

were in detention pursuant to the

provisions of the challenged statute.

De fendants argue that named

plaintiffs Coleman and Mattox lack

standing. Article III of the United

States Constitution requires that those

who seek to invoke the jurisdiction of

the federal courts must allege an actual

l4a

case or controversy. Flast v. Cohen,

392 U.S. 83, 94-101 (1968). A plaintiff

must show that he has a “personal stake

in the outcome," Baker v. Carr, 369

U.S. 186, 204 (1962) and that he “has

sustained or is immediately in danger of

sustaining some direct injury." City of

Los Angeles v. Lyons, 51 U.S.L.W. 4424,

4426 (April 30, 1983).

Defendants agree that named

plaintiffs Mattox and Coleman would have

standing to assert a valid damages claim.

Defendants argue, however, that the claim

of Coleman and Mattox for damages is

faulty because defendants are judges and

probation officers who would enjoy at

least a good faith immunity. Because it

is clear from the pleadings that

plaintiffs were detained pursuant to a

state statute which has not previously

been found unconstitutional, defendants

claim that their .good faith immunity is

15a

established by the pleadings. Defendants

fail to consider, however, that Montgomery

County is also a named defendaat in this

action. Even if I were to find that

individual judges and probation officers

1 because of absolute or

were immune

good faith immunity, the county would not

acquire immunity and would still be

subject to a suit for damages. See Owen

v. City of Independence, 445 U.S. 622

(1980). Therefore, plaintiffs Mattox and

Coleman have standing to bring their

damages action in federal court.

The question then arises whether

any of the named plaintiffs have standing

to seek injunctive and declaratory relief.

In City of Los Angeles v. Lyons, supra,

the plaintiff had suffered injury as a

lBecause it is not necessary for my

determination of the validity of the

damages claim, I decline to reach the

question of whether individual defendants

are immune.

16a

resuit of a chokehold applied to him

pursuant to Los Angeles police

regulations. The Court held that Lyons

Clearly presented a case or controversy

as to the damages claim, but that he did

not have standing to seek injunctive

relief because his standing to claim

damages did not establish “a real and

immediate threat” that he would again be

stopped and choked into unconsciousness.

Clearly, therefore, under Lyons, if this

case were brought solely by Coleman and

Mattox in their individual capacity,

they would not have standing to seek an

injunction of the pretrial detention

statute.

Because I find that plaintiffs

Freddie and Lawrence Wiggins have

standing to seek injunctive and

l7a

declaratory relief, I need not reach the

question of whether the claims of

Coleman and Mattox for damages would be

sufficient to grant them standing to

seek injunctive and declaratory relief

in a class action suit. Like defendants

here, however, courts have tended to

confuse the requirements for standing

and class representation under Federal

Rule of Civil Procedure 23. "Class

Standing and the Class Representative,"

95 Harv. L. Rev. 1637 (1981).

I have already certified the

class to include all juveniles who will

be detained in the future pursuant to

the provisions in question. There is a

point where the class becomes the

plaintiff in a lawsuit. In mootness

cases, it appears that that point occurs

at certification of the class. Id. at

1643 n. 39. See Sosna v. Iowa, 419 U.S.

393 (1975) (holding that even though the

18a

class was moot as to the named

plaintiff, the case was live for the

class which plaintiff had been certified

to represent). Because the class in

this case is defined to include all who

will be detained in the future, there is

no question that there is a “real and

immediate threat" that class members

will be subject to the application of

the allegedly unconstitutional

provisions of the statute. Therefore,

the allegations of Coleman and Mattox of

specific aiguiinat, coupled with an

unambiguous, well-defined class whose

members will unavoidably be subject to

the allegedly unconstitutional statute

would distinguish this case from O'Shea

v. Littleton, 414 U.S. 488, 494-95, n.

3, 496 (1974).

The real question here is

whether Coleman and Mattox are adequate

class representatives. I have already

19a

concluded that Coleman and Mattox

. fulfill the requirements for adequate

representation. 3 Their attorney is

qualified, experienced, and able tn

conduct this litigation and Coleman and

Mattox do not have interests that are

antagonistic to those of the class.

Wetzel Vv. Liberty Mutual Insurance.

Company, 508 F.2d 239, 247, cert.

denied, 421 U.S. i011 (1975).

As I noted above, plaintiffs

need not rely, however, on the standing

of Coleman and Mattox to bring their

damages claim in order to pursue

injunctive relief. At the time of the

filing of the complaint, named

plaintiffs Freddie and Lawrence Wiggins

were he custody pur-ant to the

challenged provisions of the statute.

Therefore, the Wiggins brothers have

standing to request injunctive and

20a

declaratory relief.”

II. Exhaustion of State Remedies

Defendants claim that even though

plaintiffs Wiggins have standing to bring

this suit for declaratory and injunctive

relief, the suit is barred by the

doctrine set forth in Preiser Ve

Rodriguez, 411 U.S. 475 (1973) as _ to

them and those members of the plaintiffs'

class presently in detention.

In Preiser, Plaintiffs were

state prisoners who brought a civil

2The mootness of the Wiggins'

claims once they were released from

prison does not require me to dismiss

the case. This case belongs to the

narrow class of cases approved in Sosna

v. Iowa, supra, in which the termination

of the named plaintiff's case does not

moot the claims of the unnamed members

of the class. It also falls squarely

within the exception to the £Sosna

requirement that the class be certified

before the named plaintiffs' claim is

mooted because it is “capable of

repetition, yet evading review."

Gerstein v. Pugh, 420 U.S. 103,230 a.

ll (i975).

2la

rights action in federal court under 42

U.S.C. § 1983, alleging that they had

been deprived unconstitutionally of

their good conduct time credits.

Plaintiffs sought injunctive relief to

restore the credits, which in each case

would result in their immediate release.

The Court held that a habeas corpus

action under 28 U.S.C. § =2254 was

plaintiffs' exclusive remedy because

plaintiffs’ suit attacked the very “fact

and duration" of their confinement.

The Court distinguished the case

from one challenging conditions of

confinement, stating that a suit

challenging conditions rather than the

fact or duration of confinement is the

proper subject. of a § 1983 action.

Furthermore, the Court stated that there

are situations in which a plaintiff

could choose to bring either a federal

habeas corpus action or a § 1983 suit.

Id. at 499.

22a

The Court's holding in Preiser

is significant because the federal

habeas corpus hetabe requires that a

litigant exhaust state remedies before

bringing suit in federal court, a

requirement that is absent from 42

U.S.C. §1983. Thus, in the case at bar,

if defendants are correct in asserting

that the Preiser doctrine applies to

plaintiffs' suit, I would be forced to

dismiss the case, requiring plaintiffs

to go to state court first.

It would appear at first blush

that a suit challtnging the preventive

detention statute challenges the fact or

duration of plaintiffs' confinement and

would therefore be governed by the

Preiser doctrine. I find,. however, that

the Preiser doctrine is inapplicable to

the case before me. Since Preiser, the

United States Supreme Court has decided

two cases which limit the broad language

23a

set forth in Preiser. In Gerstein v.

Pugh, 420 U.S. 103 (1975), a case

arising in Florida that challenged the

plaintiffs‘ pretrial detention without a

probable cause nearing, the Court found

the Preiser doctrine inapplicable

because plaintiffs did not seek and the

court did not order release from custody

as a result. The only relief sought in

Gerstein was an order that the state

grant plaintiffs a probable cause

hearing. Id. at 107 n. 6.

In Wolff v. McDonnell, 418 U.S.

539 (1974), the plaintiffs brought a

suit under 42 U.S.C. § 1983 challenging

procedures and practices in the Nebraska

prisons. The Court upheld the court of

appeals’ decision that Preiser precluded

the district court from granting the

remedy sought in the complaint -- a

restoration of good time credits.

However, the Cewxrt held further that

24a

Preiser did not preclude the district

court from examining the validity of the

procedure employed in the Nebraska

prison system for imposing sanctions on

prisoners, including the withdrawal of

good time credits. In Wolff, the Court

-held that the district court had to

determine the constitutionality of the

state pcieon system's procedures because

plaintiffs had brought a damages action

which was a proper subject of a claim

brought pursuant to 42 U.S.C. § 1983.

The Court went even further. It stated

that the Preiser doctrine would not bar

a litigant from obtaining an injunction

of the prospective enforcement of

unconstitutional prison regulations.

The Court stated:

Such a declaratory judgment as a

predicate to a damages award would

not be barred by Preiser; and because

under that case, only an injunction

restoring good time improperly taken

is foreclosed, neither would it

preclude a litigant with standing

25a

from obtainin b wa of ancillar

relief an otherwise proper injunction

ospective enforcement

prison regulations.

Id. at 555 (emphasis added).

Thus, in order to avoid the

habeas requirement of exhaustion,

whatever relief I may grant, except

damages, can be prospective only.

Wright v. Cuyler, 624 F.2d 455

(34 Cir. 1980) further supports my

conclusion. In Wright, the court held

that the Preiser doctrine was inapplica-

ble to a prisoner who challenged the

Pennsylvania Bureau of Corrections'

application to plaintiff of eligibility

standards for the state prisoner's

prerelease furlough. Even though a

finding by the court that the eligibili-

ty standards were unconstitutional, as

applied to plaintiff, would result in

shortening plaintiff's period of confine-

ment, the court distinguished Preiser.

26a

In distinguishing Preiser, the

Third Circuit in Wright, like the

Supreme Court in Gerstein and Wolff,

emphasized the relief sought by the

plaintiff. In Wright, the plaintiff

challenged the procedures used by

officials to determine eligibility for

the furlough program, and demanded a

fair application of standards. He did

not demand admission to the program.

The court stated:

Wright's demand for fair application

of the furlough eligibility criteria, as

distinct from his demand for admission

to the program, relates to the manner by

which the prison authorities reach their

decision and not the outcome of their

decision. Thus, this particular claim

of Wright's unmistakably goes not to the

fact or duration of confinement but

rather to the fairness of the decision

making process. Although impartial

application of his chance to gain

admission to ° the furlough program,

injunctive relief ordering impartial

application would not intrude upon or

divest the prison administration of its

ultimate discretion to grant or deny

Wright's admission to the program. The

Preiser rule is therefore in any event

inapplicable.

Id. at 458 n. 5.

27a

Furthermore, in Wright, at 624

F.2d 458 n. 5, the court cited favorably

Project Release v. Provost, 463 F. Supp.

facts and procedural posture of Project

Release are very similar to the case

before me. In Project Release plaintiffs

were a non-profit corporation suing

individually and on behalf of its

members and an individual who was

committed to a state psychiatric center.

The named plaintiffs filed a suit under

42 U.S.C. § 1983, seeking to represent a

Class of “all persons who have been or

may in the future be involuntarily

committed to mental hospitals.” The

suit challenged the standards and

procedures for civil commitment embodied

in provisions of the New York Mental

Hygiene Law. Plaintiffs sought an

injunction of certain provisions that

plaintiffs alleged were unconstitutional

28a

because the standards were vague and

overbroad.

The court held that the Preiser

doctrine was inapplicable because

plaintiffs sought “constitutional

substantive standards and procedures for

commitment" rather than immediate or

speedier release from confinement.

In the case at bar, plaintiffs

are not seeking release from pretrial

detention as a remedy. Just as in

Gerstein, Wright, and Project Release,

plaintiffs here challenge the standards

and procedures by which they are

committed rather than the fact or

duration of their incarceration.

III. Younger Abstention

Notwithstanding ny conclusion

that plaintiffs have standing to seek

injunctive relief and that the Preiser

doctrine is inapplicable, plaintiffs

29a

argue that the doctrine set forth in

Younger Vv. Harris, supra, and its

progeny require a federal court to

abstain from deciding this case.

In Younger, the Court held that

even where a plaintiff challenged a

facially invalid statute, principles of

comity and federalism required a federal

court to refrain from enjoining a state

court's ongoing criminal proceeding if

the defendant in the state court

proceeding could raise the constitution-

ality of the statute as a defense to his

prosecution. Since then, the Younger

doctrine has been expanded considerably

by the Supreme Court.

In Huffman v. Pursue,- 420 U.S.

592 (1975), the Court applied the

Younger doctrine to state civil

proceedings that were akin to criminal

prosecutions. The Court also expanded

the definition of “ongoing proceedings”

30a

by requiring that the plaintiff in

federal court who had been subject to a

state trial proceeding exhaust his state

appellate remedies before seeking relief

in federal court.

Juidice v. Vail, 430 U.S. 327

(1977) and Moore v. Sims, 442 U.S. 415

(1979) went even further. In both cases,

the Court stressed that for Younger

abstention to apply, the federal

plaintiff needs only to have had the

“opportunity to raise his federal

constitutional claims in adequate state

court proceedings."

in Juidice v. Vail, the federal

plaintiff, a judgment debtor, sought to

have the New York contempt provisions

enjoined as unconstitutional. Younger.

required the federal court to abstain

because the plaintiff had failed to

appear at the state contempt hearing.

Had the plaintiff attended the state

3la

contempt hearing, he could have raised

his constitutional claims as a defense

to the proceedings. Id. at 330. And,

had the New York county trial court

ruled against him, finding the contempt

statute constitutional, plaintiff could

have appealed the decision to the

Appellate Division of the New York

Supreme Court. Id. Even though plain-

tiff chose not to avail himeeté of the

New York state court's proceedings, if

he had attended, the state court

proceedings would have’ provided him

adequate opportunity to raise his federal

constitutional claims in state court and

his federal suit was barred by the

Younger doctrine.

In Moore v. Sims, the Court

stressed that for the purposes of

Younger abstention "the only pertinent

inquiry is whether the state proceedings

afford an adequate opportunity to raise

32a

constitutional claims." Id. at 430. In

that case, the Court held that Younger

abstention was necessary because Texas

law did not impose any procedural

barriers to attacking the constitution-

ality of the Texas Family Code in state

court proceedings.

As in Juidice v. Vail, the

plaintiffs in Moore v. Sims_ ignored

critical state court proceedings. In

Moore, plaintiffs' children had been

removed from their custody pursuant to

an ex parte order that was’ entered

pursuant to an allegedly unconstitutional

state statute whose purpose was to

protect battered children.

The plaintiffs sought relief in

both the federal and state forums,

creating a procedural entanglement.

After the procedural morass was

disentangled, and the children returned

to their parents, the state filed a

33a

"Suit Affecting the Parent-Child

Relationship" as provided for by the

statute. The state court ordered a

hearing requiring plaintiffs to show

cause why one of the children should not

be placed in custody of his grandparents.

The plaintiffs avoided service and filed

suit in federal court. The Court held

that because plaintiffs could have

challenged the provisions of the statute

in the state proceedings, Younger

abstention was required.

A. Damages Suit

As far as the damages suit

brought by Celeman and Mattox is

concerned, the Younger doctrine has not

been expanded to bar an action brought

for damages under 42 U.S.C. § 1983 in

federal court. Juidice v. Vail, 430

U.S. at 339 Ne 16.

34a

Until now, the Supreme Court has

?

consistently refused to require’ the

exhaustion of state remedies in cases

brought pursuant to § 1983. Monroe v.

Pape, 365 U.S. 167 (1961), Steffel v.

Thompson, 415 U.S. 452 (1974), Mitchum

v. Foster, 407 U.S. 225 (1972), Patsy v.

Beard of Regents of the State of Florida,

457 U.S. 496 (1982). A finding that

Younger applies to a damages action

would, in effect, require a litigant to

exhaust his state remedies before

bringing a § 1983 action in federal

court. Furthermore, in a situation like

the case at bar where the state remedies

that must be exhausted are judicial

rather than administrative, a finding

that Younger applies would require the

litigant to bring his § 1983 suit in

state court or forego his action. While

such an exhaustion requirement would

probably contravene the legislative

35a

intent and purpose of § 1983, it would

accomplish little to further the values

of comity and federalism embodied in

Younger.

Section 1 of the Civil Rights

Act of 1871, 17 Stat. 13, the precursor

to § 1983, was enacted to enforce the

fourteenth amendment. Both the

fourteenth amendment and the Civil

Rights Act were “crucial ingredients in

the basic alteration of our federal

system accomplished during the

Reconstruction era." Patsy, 457 U.S. at

503. The “very purpose of $ 1983 was to

interpose the federal courts between the

States and the people, as guardians of

the people's federal rights -- to protect

the people from unconstitutional action

under color of state law ‘whether that

action be executive, legislative, or

judicial.’" Mitchum v. Foster, 407 U.S.

at 242 (quoting Ex Parte Virginia, 100

36a

U.S. 339, 346 (1879). This purpose is

furthered by allowing the plaintiff in a

§ 1983 damages action to file suit in

federal court. Because there are in

this case no ongoing state proceedings

to which a plaintiff in a § 1983 damages

action is a party, the problem of

federal intervention in a state

proceeding is non-existent. The mere

fact that state interest in the outcome

is high is not a valid reason to require

Younger abstention.

B. Injunctive Relief

For those plaintiffs seeking

injunctive relief, Moore v. Sims, supra,

requires an examination of the state

procedures to determine whether’ the

state proceedings afford an “adequate

opportunity" to raise their constitu-

tional claim. Under § 6324(2) of the

Pennsylvania Juvenile Detention Statute,

37a

the child may be taken into custody

pursuant to the laws of arrest. Once a

child is in custody, § 6325 allows the

correctional officer to detain the child

if detention “is required to protect the

person or property of others or of the

child. ...". Section 6326(3) requires

that a child who is to be detained be

brought before the court or delivered to

a detention center desiynated by the

court “with all reasonable speed." Once

a child is brought before the Court or

delivered to the detention facility,

§ 6331 requires the "intake or other

authorized officer of the court" to

release the child “unless it appears

that his detention .. . is warranted or

required under § 6325." If the child is

not released, a petition shall be

presented to the court within twenty-four

hours of the child's admission or the

next court business day.

38a

Section 6332 requires that the

court or master hold an informal hearing

not later than seventy-two hours after

the child is placed in detention to

determine whether detention is required

under § 6325 and that probable cause

exists. The child, his parents or

guardian shall be given’ reasonable

notice before the hearing. Before the

hearing begins, the court or master

shall inform the parties of their right

to counsel and to appointed counsel if

they are needy. Section 6337 allows the

court to continue the proceeding to

enable the party to get counsel.

Under § 6335, not later than ten

days after the petition is filed, an

adjudicatory hearing must be held before

the judge without a jury in which the

prosecutor presents evidence. The

juvenile has the right to present

witnesses at this adjudicatory hearing.

39a

The adjudicatory hearing may be

continued up to ten days and a child

kept in detention for that additional

period if the court determines at a

hearing that evidence will be available

at a later date and that the child or

community will be in danger or the child

will abscond if he is not detained.

After the hearing, under § 6341,

the court shall make its finding as to

whether the prosecutor has proven beyond

reasonable doubt that the child committed

the acts ascribed to him.

These procedures do not

guarantee plaintiffs an adequate

opportunity to raise their constitutional

claim. Section 6325 allows a correctio-

nal officer to make a determination that

a child shoulda be detained. No hearing

is given at this stage in which

plaintiffs can raise their

constitutional claims. Section 6331

40a

requires an intake officer to review the

decision to detain the child but no

hearing is granted at this stage. A

child can -be in detention for up to

seventy-two hours without having the

opportunity for a hearing or to raise

this constitutional challenge. Up to

this point in the proceedings, therefore,

the procedural situation is exactly the

same as that in Gerstein v. Pugh, supra,

a case challenging the pretrial detention

of Florida inmates without a probable

cause hearing. As in Gerstein, ° for

the first three days oof detention

pursuant to §§ 6325 and 6331, a child

can be detained in Pennsylvania with

absolutely no opportunity to challenge

the constitutionality of the procedures.

3In Gerstein, the Court refused to

abstain on Younger principles because

there was no Sear ii in which plaintiffs

could raise their constitutional

challenges.

4la

Three days after apprehension,

at the informal detention hearing

provided for in § 6332, the juvenile

has, for the first time, the opportunity

to challenge the constitutionality of

his detention. Immediately before the

detention hearing, the court or master

must inform the child for the first time

that he has the right to be represented

by counsel and to have counsel appointed.

Presumably, at this point the detained

child must choose between waiving his

right to obtain counsel and requesting

the continuance provided for in § 6337

so that he can obtain counsel. The

statute is unclear as to how much longer

the child can be detained awaiting the

appointment of counsel.

Even assuming that the child has

counsel at his seventy-two hour detention

hearing, if the juvenile raises a

constitutional challenge to his

42a

detention at -the hearing and it is

denied, an appeal from a denial will be

quashed as interlocutory. Pennsylvania

courts have consistently held that an

appeal in a delinquency case is interlo-

cutory until after the disposition

stage, the equivalent of sentencing.

Commonwealth v. Kiker, 289 Pa. Super.

187, 432 A.2a 1115 (1981). Specifi-

cally, the courts have quashed appeals

from detention orders as interlocutory.

In the Matter of Brown, 268 Pa. Super.

563, 408 A.2d 1146 (1979). And, once

the juvenile is released from confine-

ment, Pennsylvania courts will dismiss

as moot appeals from the decision to

detain. In the Interests of Del

Signore, 249 Pa. Super. 149, 375 A.2d

803 (1977).

An individual juvenile cannot

raise a constitutional challenge to the

Juvenile Act on behalf of a class in the

43a

course of the juvenile court proceedings

described above because Pennsylvania

Rule of Civil Procedure 1703 requires

that class actions be initiated by the

filing of a separate complaint.

Therefore, the doctrine recognized in

federal courts of “capable of repetition

yet evading review" which allows a named

plaintiff to represent a class even

though his claim has become moot will

not be applicable. Assuming the

Pennsylvania courts recognize that

doctrine, the only recourse in state

court would be for the plaintiff to

institute a separate section 1983 suit

in state court. Requiring the plaintiffs

to institute a separate action in state

court, however, would go well beyond the

Younger doctrine. As explained above, a

requirement that a plaintiff must exhaust

his state judicial remedies has so far

consistently been rejected by the

Supreme Court.

44a

Once a juvenile appears at the

adjudicatory hearing required by § 6335,

the child may have already been detained

more than twenty days without = an

opportunity to appeal a finding by the

lower court or master that his detention

is constitutional. At the adjudicatory

hearing, juveniles have challenged the

admissibility of statements and identifi-

cation on the grounds that they were

obtained during their detention which

aid not comply with the mandates of the

statute. Commonwealth v. Bey, 249 Pa.

Super. 185, 375 A.2da 1304 (1977), In the

Interest of Schirner, 264 Pa. Super.

i8s, 399 A.2ad 728 (1979), In the

Interest of White, 264 Pa. Super. 190,

399 A.2d 731 (1979). Presumably,

Juveniles would be permitted to raise at

the adjudicatory hearing the question of

the constitutionality of their detention

indirectly * <-rder to challenge the

45a

PPTL SHPO I TE PT I Pp FY EY PY PF GTY PPP TY

admissibility of statements and identifi-

cations obtained during the detention.

And, presumably, after a finding of

delinquency and disposition by the

hearing judge or master, a juvenile

could appeal the court's decision to

admit the statements or identification

obtained as a result of his allegedly

unconstitutional detention. Where the

juvenile's challenge to the constitution-

ality of of his detention, however, does

not attack the admissibility of evidence

tending to establish guilt or innocence,

the challenge will not be heard at the

adjudicatory hearing because it will be

irrelevant.

It is clear from the procedures

described above that the only opportunity

a juvenile has to attack the

constitutionality of his detention

directly is at the § 6332 informal

46a

detention hearing. Because Huffman v.

Pursue, supra, and Juidice v. Vaii,

Supra, stress the importance of pursuing

state appellate remedies, and no. such

remedies exist in Pennsylvania, I find

that the opportunity afforded to the

plaintiffs in Pennsylvania state courts

is inadequate.

Furthermore, because plaintiffs'

constitutional challenge to the

preventive detention statutes is an

attack on a collateral issue which does

not affect the merits of the

prosecution, federal injunctive or

declaratory relief in this case would

not be the intrusive interfer-nce which

Younger sought to bar. Fernandez v.

Trias Monge, 586 F.2d 848 (lst Cir.

1978). Although the collateral nature

of A constitutional attack is not

determinative of whether Younger absten-

tion is appropriate or not, State of New

47a

Jersey v. Chesimard, 555 F.2d 63 (3d

Cir. 1977)(en banc), when an attack

which is collateral to the merits of the

prosecution is combined with a lack of

procedures in state court by which to

challenge the constitutionality of the

allegedly unconstitutional. statute,

Younger abstention is inappropriate.

Gerstein v. Pugh, supra, Fernandez v.

Trias Monge, supra.

In Gerstein v. Pugh, a_e case

challenging the absence of a probable

cause hearing, the Court affirmed the

district court's finding that Younger

abstention was inappropriate by stating:

The District Court correctly held

that respondents' claim for relief

was not barred by the equitable

restrictions on tederal intervention

in state prosecutions, Younger v.

Harris, . . .- the injunction was not

directed at the state prosecutions as

such, but only at the legality of

pretrial detention without a judicial

hearing, an issue that could not be

raised in defense of the criminal

prosecution. The order to hold

preliminary hearings could not

prejudice the conduct of the trial on

the merits.

48a

Defendants argue that even if

the Younger doctrine does not require

a»bstention I should exercise my

discretion to abstain under the

doctrines set forth in Railroad

Commissioner _v. Pullman, supra, or

Burford v. Sun Oil Company, supra.

Pullman abstention “may be

invoked where there is an_ unsettled

question of state law, the resolution of

which would affect the decision of a

federal constitutional issue, either by

obviating the need to decide it or by

changing the light in which it must be

viewed." Heritage Farms, Inc. Vv.

Solebury Township, 671 F.2d 743 (3d Cir.

1982), cert. denied, 102 S.Ct. 2270.

Plaintiffs argue that Pullman

abstention is inappropriate here for two

reasons. First, they argue that since

they are claiming that preventive

detention per se, violates the due

49a

process Clause of the fourteenth

amendment, a state court's narrowing

interpretation of the statute would

neither resolve nor affect the issue.

Secondly, they argue that even if the

fourteenth amendment does not prohibit

all preventive detention, the statute

violates due process because it is so

vague and overbroad in its absence of

procedures and standards of proof for

determining whether a juvenile presents

a danger to the community that it cannot

be cured short of rewriting the statute.

Although I disagree that I will

necessarily reach the question of whether

preventive detention is unconstitutional

per se, I agree with plaintiffs that the

statute is so clearly lacking in

standards that it would be impossible

for the Pennsylvania Supreme Court to

narrow the statute without rewriting it.

50a

I refuse to exercise my

discretion to abstain under the Pullman

doctrine.

First, it would be useless to

allow the State Supreme Court to attempt

to narrow the statutory provisions tte

question. Secondly, this motion to

abstain was filed almost two years after

the filing of the complaint, and

thirdly, my withdrawal from the

adjudication at this point would cause

an extended and unwarranted delay in the

ultimate disposition of the case.

Frederick L. v. Thomas, 557 F.2d 373,

383 (3d Cir. 1977).

Bur ford abstention is

appropriate “where a difficult question

of state law is presented which involves

important state policies or administra-

tive concerns." Heritage Farms, Inc.,

671 F.2d at 746. It has two

components: a procedural and a substan-

tive one. The procedural component

5la

requires a federal court to defer to a

specialized state regulatory agency for

issue entrusted to the agency. Burford

v. Sun Oil Company, supra.

The substantive component allows

a federal court to abstain where diffi-

cult questions of state law bear on

policy problems “of substantial public

import whose importance transcends the

results in the case then at bar."

Colorado . River Water Conservation

District v. United States, 424 U.S. 800,

814 (1976). Burford abstention is a

limited doctrine which should not be

applied “merely because resolution of a

federal question may result in the

overturning of a state policy." Zablocki

Vv. Redhail, 434 U.S. 374, 380 n.5

(1977). Clearly, the federal constitu-

tional concerns in this case outweigh

the state's interest in detaining

juveniles before trial. Therefore, I

52a

refuse to exercise my discretion to

abstain under the Burford doctrine.

For the reasons explained above,

I shall deny defendant's motion for

judgment on the pleadings and/or for

partial decerti fication of the

plaintiffs' class.

Joseph S. Lord, III S.J.

53a

Appendix to Opinion of the Court

The following are the statutory

provisions challenged by plaintiffs. [In

its pertinent part 42 Pa. Cons. Stat.

Ann. § 6325 reads as follows:

A child taken into custody shall not

be detained or placed in shelter care

prior to the hearing on the petition

unless his detention or care is

required to protect the person or

property of others or of the child or

because the child may abscond or be

removed from the jurisdiction of the

court ...

In its pertinent portions 42 Pa. Cons.

Stat. Ann. § 6335 reads as follows:

General rule. After the petition has

been filed the court shall fix a time

for hearing thereon, which, if the child

is in detention or shelter care shall

not be later than ten days after the

filing of the petition. If the hearing

is not held within such time, the child

shall be immediately released from

54a

detention or shelter care. A child may

be detained or kept in shelter care for

an additional single period not to

exceed ten days where:

(1) the court determined at a hearing

that:

(i) evidence material to the case

is unavailable;

(ii) due diligence to obtain such

evidence has been exercised;

and

(iii) there are reasonable grounds

to believe that such evidence

will be available at a later

date; and

(2) the court finds by clear and

convincing evidence that:

(i) the life of the child would be

in danger;

(ii) the community would be

exposed to a specific

danger; or

(iii) the child will abscond or be

removed from the jurisdiction

of the court.

The court shall direct the issuance of a

summons to the parents, guardian, or

other custodian, a guardian ad liten,

and any other persons as appear to the

court to be proper or necessary parties

to the proceeding, requiring them to

appear before the court at a time fixee

to answer the allegations of the

petition. The summons shall also be

directed to the child if he is 14 or

more years of age or is alleged to be a

delinquent. A copy of the petition

shall accompany the summons.

55a

42 Pa. Cons. Stat. Ann. § 6341 reads as

follows:

(a) General rule.---After hearing the

evidence on the petition the court shall

make and file its findings as to whether

the child is a dependent child, or if

the petition alleges that the child is

delinquent, whether the acts ascribed to

the child were committed by him. If the

court finds that the child is not a

dependent child or that the allegations

of delinquency have not been established

it shall dismiss the petition and order

the child discharged from any detention

or other restriction theretofore ordered

in the proceeding.

(b) Finding of delinquency.---If the

court finds on proof beyond a reasonable

doubt that the child committed the acts

by reason of which he is alleged to be

delinquent it shall enter such finding

on the record and it shall then proceed

immediately or at a postponed hearing,

which shall occur not later than 20 days

after adjudication if the child is in

detention, to hear evidence as _ to

whether the child is in need of

treatment-:, supervision or rehabilitation

and to make and file its findings

thereon. In the absence of evidence to

the contrary, evidence of the commission

of acts which constitute a felony shall

be sufficient to sustain a finding that

the child is in need of treatment,

supervision or rehabilitation. If the

court finds that the child is not in

need of treatment, supervision or

rehabilitation it shall dismiss the

56a

proceeding and discharge the child from

any detention or other rec triction

theretofore ordered.

(c) Finding of dependency. ---If the

nds

court rom clear and convincing

evidence that the child is dependent,

the court shall proceed immediately or

at a postponed hearing, which shall

occur not later than 2C days after

adjudication if the child has been

removed from his home, to make a4 proper

disposition of the case.

(a) Evidence on issue of

disposition.---In disposition hearings

under subsections (k) and (c) all

evidence helpful in determining the

questions presented, including oral and

written reports, may be received by the

court and relied upon to the extent of

its probative value even though not

Otherwise competent in the hearing on

the petition. The parties or their

counsel shall be afforded an opportunity

to examine and controvert written

reports so received and to cross-examine

individuals making the reports. Sources

of information given in confidence need

not be disclosed.

(e) Continued hearings.---On its motion

or that of a party the court may

continue the hearings under this section

for a reasonable period to receive

reports and other evidence bearing on

the disposition or the need for

treatment, supervision or rehabilita-

tion. In this event the court shall

make an appropriate order for detention

of the child oor his’ release (from

detention subject to supervision of the

court during the period of the

57a

continuance. In scheduling investiga-

tions and hearings the court shall give

priority to proceedings in which a child

is in detention or has otherwise been

removed from his home before an order of

disposition has been made.

58a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KASEEM COLEMAN, et al., : CIVIL ACTION

:

ve :

:

JOSEPH STANZIANI, et al., : NO. 81-2215

ORDER

AND NOW this 14th day of

September, 1983, it is hereby ORDERED

that defendants’ Motion for Judgment on

the Pleadings and/or for Partial Decerti-

fication of the plaintiffe' Class be and

is DENIED.

BY THE COURT:

_ Yoseph S. tord, 11r Ss. J.

59a

APPENDIX OF STATUTES INVOLVED

28 U.S.C. §1291 states:

The courts of appeals (other than the

United States Court of Appeals for the

Federal Circuit shall have jurisdiction

of appeals from all final decisions of

the district courts of the United States,

the United States District Court for the

District of the Canal Zone, the District

Court of Guam, and the District Court of

the Virgin Islands, except where a direct

review may be had in the Supreme Court.

The jurisdiction of the United States

Court of Appeals for the Federal Circuit

shall be limited to the jurisdiction of

the United States Court of Appeais for

the Federal Circuit shall be limited to

the jurisdiction described in sections

1282(c) and (da) and 1295 of this title.

42 U.S.C. §1983 states:

Every person who, under color of any

statute, ordinance, regulation, custom

or usage, of any State or Territory or

the District of Columbia, subjects, or

causes to be subjected, any citizen of

the United States or other person within

the jurisdiction thereof to the depriva-

tion of any rights, privileges, or

immunities secured by the Constitution

and laws, shall be liable to the party

injured in an action at law, suit in

equity, or other proper proceeding for

redress. For the purposes of this

section, any Act of Congress applicable

exclusively to the District of Columbia

shall be considered to be a statute of

the District of Columbia.

60a

42 Pa. Cons. Stat. Ann. §6301(b) states:

(ob) Purposes.--This chapter shall be

interpreted and construed as to

effectuate the following purposes.

(1) To preserve the unity of the

family whenever possible and to provide

for the care, protection and wholesome

mental and physical development of

children coming within the provisions of

this chapter.

(2) Consistent with the protec-

tion of the public interest, to remove

from children committing delinquent acts

the consequences of criminal behavior,

and to substitute therefor a program of

Supervision, care and rehabilitation.

(3) To achieve the foregoing

purposes in a family environment whenever

possible, separating the child from

parents only when necessary for his

welfare or in the interests of public

safety.

(4) To provide means’~ through

which the provisions of this chapter are

executed and enforced and in which the

parties are assured a fair hearing and

their constitu*ional and other legal

rights recognizei and enforced.

42 Pa. Cons. Stat. Ann. §6331 states:

Release from detention or commence of

proceedings.

If a child is brought before the court

or delivered to a detention or shelter

care facility designated by the court,

the intake or other authorized officer

6la

of the court shall immediately make an

investigation and release the child

unless it appears that his detention or

shelter care is warranted or required

under section 6325 (relating to

detention of child). [(54a)]. The

release of the child shall not prevent

the subsequent filing of a petition as

provided in this chapter. If he is not

so released, a petition shall be promptly

made and presented to the court within

24 hours or the next court business day

of the admission of the child to

detention or shelter care.

42 Pa. Cons. Stat. Ann. §6332(a) states:

Informal hearing.

(a) General rule.--An informal hearing

shall be held promptly by the court or

master and not later than 72 hours after

the child is placed in detention or

sheiter care tG determine whether his

detention or shelter care is required

under section 6325 (relating to

detention of child) [(54a)] and if the

child is alleged to be delinquent, that

probable cause exists that the child has

committed a delinquent act. Reasonable

notice thereof, either oral or written,

stating the time, place, and purpose of

the hearing shall be given to the child

and if they can be found, to his

parents, guardian, or other custodian.

Prior to the commencement of the hearing

the court or master shall inform the

parties of their right to counsel and to

appointed counsel if they are needy

persons, and of the right of the child

to remain silent with respect to any

allegations of delinquency.

62a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 83-1730

COLEMAN, KASEEM, a minor, by his mother

and next friend, DELORES’~ LEE; and

MATTOX, AARON, a minor, by his mother

and next friend, DORIS MATTOX; WIGGINS,

LAWRENCE LEE, and WIGGINS, FREDDIE LEE,

minors, by their mother and next friend,

BARBARA WIGGINS, on their own behalf and

on behalf of all others”~ similarly

situated,

Appellees

Ve

JOSEPH H. STANZIANI and LAWRENCE A,

BROWN, individually and in their

official capacities as Judges of the

Montgomery County Court of Common Pleas,

Juvenile Division, on their own behalf

and on behalf of all other Juvenile

Court Judges similarly situated in the

Commonwealth of Pennsylvania; ANTHONY

GUARNA, individually and in his official

capacity as Chief Juvenile Probation

Officer, Montgomery County, on his own

behalf and on behalf of all other

juvenile probation officers similarly

situated in the Commonwealth of

Pennsylvania;

THE MONTGOMERY COUNTY COURT OF COMMON

PLEAS, JUVENILE DIVISION; and MONTGOMERY

COUNTY, PENNSYLVANIA,

Appellants

63a

No. 83-3539

JOSEPH H. STANZIANI and LAWRENCE A,

BROWN, individually and in their

official capacities as Judges of the

Montgomery County Court of Common Pleas,

Juvenile Division, on their own behalf

and on behalf of all other Juvenile

Court Judges similarly situated in the

Commonwealth of Pennsylvania;

ANTHONY GUARNA, individually and in his

official capacity as Chief Juvenile

Probation Officer, Montgomery County, on

his own behalf and on behalf of all

other juvenile probation officers

Similarly situated in the Commonwealth

of Pennsylvania;

THE MONTGOMERY COUNTY COURT OF COMMON

PLEAS, JUVENILE DIVISION;

and

MONTGOMERY COUNTY, PENNSYLVANIA,

Petitioners

Vv.

HONORABLE JOSEPH S. LORD, III,

Nominal Respondent

KASEEM COLEMAN, a minor, by his mother

and next friend, DELORES LEE; AARON

MATTOX, a minor, by his mother and next

friend, DORIS MATTOX; LAWRENCE LEE

WIGGINS and FREDDI£Z LEE WIGGINS, minors,

by their mother and next friend, BARBARA

WIGGINS, on their own behalf and on

behalf of all others similarly situated,.

Actual Respondents

(Petition for Writ of Mandamus’_ or

Prohibition)

64a

Nos. 83-1730 & 83-3539

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN

DISTRICT OF PENNSYLVANIA

Present: GIBBONS and HU’ TER, Circuit

Judges and STAPLETON, District Judge*

JUDGMENT

This cause came on to be heard on the

record from the United States District

Court for the Eastern District of

Pennsylvania and was argued by counsel

on May 17, 1984.

On consideration whereof, it is now

here ordered and adjudged by this Court

that the within appeal at No. 83-1730

be, and the seme is hereby dismissed for

lack of jurisdiction and the motion to

dismiss is thus granted.

* Honorable Walter K. Stapleton, United

States District Judge for the District

of Delaware, sitting by designation.

65a

It is further ordered and

adjudged that the petition for writ of

mandamus docketed at No. 83-3539 be, and

the same is hereby denied. Costs taxed

against appellants in No. 831730 and

against petitioners in No. 83-3539. All

the above in accordance with the opinion

of this Court.

ATTEST:

Sally Mrvos/s

Clerk

June 4, 1984

Certified as a true copy and issued in

lieu of a formal mandate on June 26,

1984, Test: M. Elizabeth Ferguson/s

Chief Deputy Clerk, U.S. Court of Appeals

for the Third Circuit COPY

66a

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