# Petition for Writ of Certiorari — Stanziani v. Coleman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2364%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 1037 ## Text ¥ % _ _ ‘ _ 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. ) >) 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= (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 $1983 damages 2lsee, e.g., Juidice v. Vail, 430 U.S. 327 ( 7); Gerstein v. Pugh, 420 U.S. 103 (1975); O*Shea v. Littleton, 414 U.S. 488 (1974). =29 Pennsylvania state courts have not demonstrated an inability to do so. By failing to raise their federal 25see cases cited at n.13 supra. a3 constitutional issues in their state proceedings (and, instead, raising them for the first time in federal court), plair iffs have deprived the state courts of the right to rule on their own procedures, the right to correct any problems they might perceive in those procedures, and the right to construe the statute narrowly--altering or elimi- nating the constitutional concerns. This deprivation can be corrected only by this Court accepting jurisdiction of this case and remanding with directions to abstain. It is simply unnecessary and inappropriate for a federal court to interfere at this time. =3@- Conclusion For these reasons, a writ of certiorari should issue to review the decision of the Third Circuit. Respectfully submitted, Leroy S. Zimmerman Attorney General By: Kathleen F. McGrath Deputy Attorney General David M. Donaldson Deputy Attorney General Andrew S. Gordon Deputy Attorney General Allen C. Warshaw Deputy Attorney General Chief, Litigation Section Office of Attorney General 15th Fl., Strawberry Square Harrisburg, PA 17120 (717) 783-1471 Howland Abramson, Esquire Assistant Legal Counsel to the Court Administrator Office of the Court Administrator 1414 Three Penn Building Philadelphia, PA 19102 (215-563-4523 Walter S. Jenkins, Esquire Sweeney, Sheehan & Spencer Three Penn Center Plaza Philadelphia, PA 19102 (215) 563-9811 Attorneys for Petitioners Date: October 2, 1984 a$@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 a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2364%3A1. Public record. Not legal advice.