Amicus Curiae Brief — Massachusetts Commission Against Discrimination v. Chaulk Services, Inc.

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Supreme Court of the United States

October Term, 1995

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On Petition For A Writ Of (¢

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For The First Circuit

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BRIEF OF AMICI CURIAE STATES Ol

ARIZONA, CONNECTICUT, HAWAII, MAINI

MONTANA, NEW JERSEY, OKLAHOMA AND

PENNSYLVANIA IN SUPPORT OF PETITIONER

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Assistant Attorney,

Of Counsel

IEFFREY C. B

Deputy Attorney Gene!

Counsel of Record

CHARLES 3. COHED

Deputy Attorney Gene!

On the Petition

(Additional Counsel

LIST OF ATTORNEYS GENERAL AND STATES

Attorney General of Connecti

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\ttorney General of Me t

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\ttorney General of New Jerse

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Attorne (,enerai of Ok

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TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE

ARGUMENT

|. THE PETITION SHOULD BE GRANTED BECAUSE

THE DECISION BELOW INAPPROPRIATELY CRE-

ATES AN EXCEPTION TO THE YOUNGER

ABSTENTION DOCTRINE SIMPLY BECAUSE OF

THE EXISTENCE OF AN ARGUABLE FEDERAI

PREEMPTION CLAIM....

I] THE PETITION SHOULD BE GRANTED

BECAUSE DISCRIMINATION ACTIONS

BROUGHT UNDER STATE LAW ARE NOT PRE-

EMPTED EVEN WHEN ARISING FROM CON-

DUCT WHICH ALSO VIOLATES THE NLRA

CONCLUSION

THORITIES

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ula RCA Alascom and leamster ocal 359

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rotnernooad r I CNG \ yrriinii On Agall pet os

rimination, 695 F. Supp. 1321 (D. Mass. 1988)

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rotherhood of Maintenan f Way Emp Chicag

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Cir. 1984

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KT, In Pitz, 883 F.2d 468 (6th Cir. 1989

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den 02 1S. 812 (1991)

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350 (1989)

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TABLE OF AUTHORITIES —- Continued

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(4th Cir. 1986), vacated on other groune +84 U

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INTEREST OF THE AMICI CURIAE

[he States of Arizona, Connecticut, Hawaii, Maine

Montana, New Jersey, Oklahoma and Pennsylvania

through their respective Attorneys General, urge this

Court to grant the petition for a writ of certiorari because

the decision of the Court of Appeals for the First Circuit

is emblematic of a line of cases which unwarrantedly

have created a “preemption exception” to the operation

of the abstention doctrine in the context of challenges to

state administrative proceedings. There is no principled

basis on which to disregard the Younger v. Harris, 401 U.:!

37 (1971) doctrine in an ongoing state proceeding which

Ss judicial in nature, involving Important State interests

and in which there is full opportunity to raise the federal

question, merely because such federal question is one of

preemption. In a wide variety of state quasi-judicial pro

ceedings including but not limited to those involving

enforcement of state civil rights laws, the setting here

state administrative agencies are faced with federal pre

emption claims. To permit federal court interference with

state administrative proceeding simply because a color

able claim of preemption is raised would constitute a

striking denigration of the states’ ability to enforce fed

eral law faithfully, cutting squarely against the federalism

and comity underpinnings of Younger and its progeny

(most notably the case recognizing Younger’s applicability

to quasi-judicial hearings, Ohio Civil Rights Comm. v. Day

ton Christian Schools, 477 U.S. 619 (1986)). In essence, the

decision below (as well as certain other Circuit Court of

Appeals decisions upon which the court below relie:

would render Younger a nullity in the myriad of state

administrative proceedings in which arguable federal

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preemption claims can be asserted. This would seriously

undermine the states’ ability to enforce laws (such as the

anti-discrimination statute involved here) arising out of

deeply rooted state interests

Amici also urge that this Court grant certiorari on the

second question presented by petitioner: whether the

National Labor Relations Act, 29 U.S.C. § 151 et seg

(“NLRA”), preempts a state law prohibiting gender dis

crimination in employment merely because the facts

underlying the discrimination action overlap with NLRA-

regulated activity. The large majority of cases brought

under state civil rights statutes involve claims of employ

ment discrimination. As this case demonstrates, factual

allegations supporting a state law discrimination clain

readily can touch on conduct regulated by the NLRA. Thx

court below erred in finding preemption merely because

the facts underlying the state discrimination claim in part

coincided with facts supporting an NLRA unfair labor

practice charge. Amici respectfully submit that the deci

sion below will be very deleterious to the states’ enforce

ment of their anti-discrimination statutes. While a stat

ertainly is preempted from regulating NLRA-covered

union activity, the mere fact that a discrimination clain

irises in the setting of a union organizational effort dos

it warrant preemption of a st

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ARGUMENT

I. THE PETITION SHOULD BE GRANTED BECAUSE

THE DECISION BELOW INAPPROPRIATELY CRE-

ATES AN EXCEPTION TO THE YOUNGER

ABSTENTION DOCTRINE SIMPLY BECAUSE OIF

THE EXISTENCE OF AN ARGUABLE FEDERAL

PREEMPTION CLAIM.

Prior to this Court’s decision in New Orleans Publi

Service, In Counsel of City of New Orleans, 491 U.S. 351

(1989) (“NOPSI"), various Circuit Courts of Appeal had

held that the Younger abstention analysis should not

apply in cases involving claims of federal preemptior

because “comity is not strained when a federal court

uts off state proceedings that entrench upon the federa

domain.” Middle South Energy, In Arkansas Pul r

Comm., 772 F.2d 404, 417 (8th Cir. 1985 ert. den

nom., Ratepayers Fight Back v. Middle South Energy, Inc., 474

U.S. 1102 (1986). See also, Kentucky West Va. Ga

Penn. Public Ut. Comm., 791 F.2d 1111, 1116-17 (3d ¢

1986); Champion Int'l. Cort Brown, 731 F.2d 140¢

1408-09 (9th Cir. 1984). In contrast, other courts had

rejected arguments that Younger abstention principle

inapplicable where federal preemption is asserted

e.g., Potomac Electric Power Co. v. Sachs, 802 F.2d 152

1531 (4th Cir. 1986), vacated on other grounds, 484 U.S. 1022

(1988) (it would be “anomalous to hold that a state cour

may decide federai constitutional issues but is unqual

i

ified or inhibited from deciding preemption issues

A i« * “ ’

Brotherhood of Loc. Ene¢e. v. Commission Against D1scrimina

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tion, 695 F. Supp. 1321, 1324-25 (D. Mass. 1988); Fore Way

Express, Inc. v. Wisconsin Dept. of Ind., 660 F. Supt

mf

(E.D. Wisc. 1987)

This Court in NOPSI seemingly put this split to rest.

in NOPSI, petitioner had asserted that the second prong

of the test for Younger abstention articulated in Middlesex

County Ethics Comm. v. Garden State Bar Ass’n., 457 U.S.

423, 432 (1982) - the existence of “an important state

interest” — is not met where there is a “substantial claim”

of federal preemption because such claim “calls into

question the prerequisite of Younger abstention that the

State have a legitimate, substantial interest in its pending

proceedings.” NOPSI, supra, 491 U.S. at 364. In speaking

for this Court, Justice Scalia responded:

We disagree. There is no greater federal interest

in enforcing the supremacy of federal statutes

than in enforcing the supremacy of explicit con-

stitutional guarantees. . . . [Id. at 365]

Therefore, even a “substantial” preemption claim does

not negate the operation of the abstention doctrine. Id. at

367.

Petitioner in NOPSI also argued that “a facially con-

clusive” preemption claim should render abstention inap-

propriate. Justice Scalia responded: “Perhaps so. But we

do not have to decide tlie matter here,” as the preemption

question necessitated “turther factual inquiry - and what

requires further factual inquiry can hardly be deemed

‘flagrantly’ unlawful for purposes of a threshold absten-

tion determination.” Id.

Despite this holding, the court below inappropriately

seized on the above-quoted unanswered hypothetical to

continue to recognize what essentially is a “preemption

exception” to the Younger doctrine. The danger of such

unwarranted stretching of the “facially conclusive” lan-

guage in NOPSI is seen in how the court below collapsed

the Younger abstention issue into a determination of the

preemption claim’s merits. Even though this Court in

NOPSI squarely rejected the view that a federal court

7

“should take a quick look at the merits” of the preemp-

tion claim and if it “appears substantial . . . endeavor to

resolve it,” id. at 364-365, this is precisely what the court

below did, extensively discussing the merits of the pre-

emption issue before addressing the State’s abstention

defense. Pet. App. 8A-25A. And as a review of the deci-

sion makes clear, the preemption claim here is anything

but “facially conclusive”. Even though the complainant

before the Massachusetts Commission Against Discrimi-

nation was not seeking to enforce any NLRA rights,

instead alleging that she was harassed and differentially

treated by her employer based on her sex, the majority

delved into the facts of this case, to the extent of relying

on the agency’s investigative interrogatories to conclude

that the sex discrimination claim in reality is one involv-

ing an unfair labor practice. Pet. App. 22A, 23A, 36A.

Moreover, that the preemption claim is not “facially con-

ciusive” is underscored by the thoughtful discussion of

this question by Circuit Judge Lynch in dissent, who

concludes that the state action should not be preempted

by the NLRA. Pet. App. 39A-61A.

Should the Court of Appeals’ inappropriate construc-

tion of the “facially conclusive” hypothetical in NOPSI be

accepted, virtually every non-frivolous preemption claim

will be captured by this approach, whereby the federal

court analyzes the merits of the preemption claim before

addressing abstention, leading to inappropriate adjudica-

tion by lower federal courts of an issue which state courts

(and administrative bodies) are fully capable of deciding.

That such concern is justified is seen by the fact that this

matter is not the only post-NOPSI Circuit Court of

Appeals decision authorizing a preemption-based federal

injunction against a state proceeding which otherwise

meets the Younger criteria. See Bud Antle, Inc. v. Barbosa, 45

F.3d 1261, 1272-73 (9th Cir. 1994) (federal court injunction

issued against ongoing proceeding before California

Agricultural Labor Relations Board because of alleged

preemption by NLRA); Freehold Cogeneration v. Bd of Reg.

Comm. of New Jersey, 44 F.3d 1178, 1187, n. 6 (3d Cir. 1995),

cert. den. ____ U.S. __, 116 S.Ct. 68, 113 L.Ed.2d 29 (1995)

(state rate-making hearing enjoined because of federal

preemption).! See also, Olde Discount Corp. v. Tupman, 1

F.3d 202, 206-215 (3d Cir. 1993) (state proceeding for

securities law violation enjoined because of preemption

by Federal Arbitration Act, despite the absence of any

' This is not to argue that the substantive preemption

decisions in Bud Antle or Freehold necessarily were wrong.

Rather, these decisions involve preemption claims in which the

Circuit Courts of Appeals (as did the court below) engaged in a

close examination of the merits of substantial but not “facially

conclusive” preemption claims, precisely what this Court

warned against in NOPSI. For example, the preemption

question in Bud Antle turned on a heavily fact-sensitive issue of

whether employees who handle and process agricultural goods

are “agricultural laborers” exempt from NLRA coverage and

subject to state regulation. Similarly, the preemption issue in

Freehold was highly complex, relating to the interplay of state

utility rate proceedings and the federal Public Utilities

Regulatory Policies Act, requiring the court to engage in a

detailed analysis of the state administrative hearing.

determination that preemption was “facially conclu-

sive”); Gartrell Const. Inc. v. Aubry, 940 F.2d 437, 441 (9th

Cir. 1991) (action to enforce state contractors’ licensing

requirement enjoined because federal preemption was

“readily apparent”). Contra, CSXT, Inc. v. Pitz, 883 F.2d

468 (6th Cir. 1989), cert. den., 502 U.S. 812 (1991) (“to hold

that a state court may decide Federal constitutional issues

generally but should not decide preemption issues makes

little sense”); Employer Resource Management Co., Inc. v.

Shannon, 65 F.3d 1126, 1136 (4th Cir. 1995) (same).

At heart, the decision below manifests a distrust of

the ability of state courts and administrative agencies to

adjudicate federal preemption issues fairly. This distrust

is misplaced, as state courts, and state agencies acting in

a quasi-judicial capacity, routinely decide preemption

issues (including those involving employment law, the

setting here), often finding that federal law displaces the

state proceeding. See, e.g., Nolan v. Otis Elevator Co., 505

A.2d 580 (N.J. 1986), cert. den., 479 U.S. 820 (1986) (ERISA

preempts action under state anti-discrimination statute

involving pension benefits); Johnson v. Jaffray, Inc., 530

N.W.2d 790 (Minn.1995) (Federal Arbitration Act pre-

empts state law discrimination action against securities

broker); Brotherhood of Maintenance of Way Emp. v. Chicago

and Northwestern Transp. Co., 514 N.W.2d 90 (Iowa 1994)

(Railway Labor Act preempts state statute on employee

drug and alcohol testing); Beaman v. Yakima Valley Dis-

posal, Inc., 807 P.2d 849 (Wash. 1991) (state wrongful

discharge claim preempted by NLRA). And more impor-

tantly, such distrust has been squarely repudiated by this

Court in Younger and its progeny, which militate against

assuming federal jurisdiction where it would “reflect neg-

atively” upon the willingness and ability of the state

forum to apply federal law faithfully. See, e.g., Juidice v.

Vail, 430 U.S. 327, 336 (1977).

For these reasons, amici curiae respectfully request

that the petition for a writ of certiorari on the significant

Younger abstention issue raised by this matter be granted.

Il. THE PETITION SHOULD BE GRANTED

BECAUSE DISCRIMINATION ACTIONS

BROUGHT UNDER STATE LAW ARE NOT PRE-

EMPTED EVEN WHEN ARISING FROM CON- -

DUCT WHICH ALSO VIOLATES THE NLRA.

By holding that states are preempted from enforcing

their anti-discrimination laws under circumstances

involving conduct that is also encompassed by the NLRA,

the majority misinterpreted Congressional intent and

failed to give due regard to the importance of the states’

interest in addressing discrimination by employers.?

That state and federal statutes may address the same

basic areas of the law does not automatically compel a

2 Massachusetts asserts in the Petition (at 21-23) that the

majority opinion below conflicts with a holding of the

Massachusetts Supreme Judicial Court that a cause of action

under the state’s anti-discrimination action was not preempted

by the NLRB. Massachusetts Elec. Co. v. Massachusetts Comm'n

Against Discrimination, 375 Mass. 160, 375 N.E.2d 1192 (Mass.

1978). Similar decisions have also been made by the Supreme

Courts of lowa (Franklin Manufacturing Co. v. lowa Civil Rights

Com., 270 N.W.2d 829, 834 (lowa 1978)) and Alaska (Bald v. RCA

Alascom and Teamsters Local 359, 569 P.2d 1328, 1335 (Alaska

1977)).

finding of federal preemption. Fighting discrimination,

for instance, has consistently been recognized as an

important exercise of the states’ police powers. Board of

Directors of Rotary International v. Rotary Club of Duarte,

481 U.S. 537, 548 (1987). In such areas where the states

have traditionally acted, the states are not to be deemed

superseded unless that is “the clear and manifest purpose

of Congress.” Cipollone v. Liggett Group, Inc., 505 U.S. 504,

516 (1992).3

San Diego Building Trades Council v. J].S. Garmon, 359

U.S. 236, 244 (1959), sets forth the general rule that a state

may not regulate any activity which clearly or by reason-

able inference falls within the scope of the NLRA. How-

ever, the states are not necessarily preempted in all areas

which may fall within the broad scope of the NLRA. They

may continue to regulate with respect to: (1) matters

which “merely peripheral[ly] concern” the Act, and (2)

“where the regulated conduct touched interests so deeply

* Thus, it has been held that even ERISA, which contains an

express provision preempting inconsistent state law (unlike the

NLRA), does not necessarily preempt state anti-discrimination

law. Shaw v. Delta Air Lines, 463 U.S. 85, 102-103 (1983). To

interpret ERISA as completely preemptive of a state civil rights

law would preclude the EEOC from referring claims to state

agencies and frustrate the goal of Title VII to encourage joint

enforcement. Ibid. See also, Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399, 409-410 (1988) (under Section 301 of the Labor

Management Relations Act, 29 U.S.C. § 185, an independent

state cause of action may be pursued as long as it would not

require interpretation of a collective bargaining agreement,

even if dispute resolution under the LMRA and the state action

would both require addressing precisely the same set of facts.)

10

rooted in local feeling and responsibility” that Congres-

sional intent to preempt cannot be inferred. Id. at 234-235.

As to enforcement of state anti-discrimination laws, both

of these exceptions should be found to apply.

Focusing on the fact that both the NLRA action and

the state discrimination claim in this case arose from the

same conduct, the majority below failed to recognize the

distinct aspects of this conduct being addressed by these

separate laws. That discrimination in the workplace is not

a principal concern of the NLRA is clear from cases

holding that federal civil rights employment actions under

Title VII, 42 U.S.C.A. § 2000e et seq., are not preempted by

the NLRA. This Court has expressly noted the coexistence

of remedies under both statutes, observing, for example,

that a Senate sponsor of the bill ultimately enacted as

Title VII specifically declared that nothing in Title VII was

intended to affect rights and obligations under the NLRA.

Alexander v. Gardner-Denver Co., 415 U.S. 36, 48, n.9

(1974), quoting 110 Cong. Rec. 7201 (1964). In fact, pro-

posed amendments to make Title VII exclusive as to

employment remedies were defeated. Ibid.

It is evident, then, that the NLRA does not preclude

an individual harmed by an unlawful discriminatory

employment practice from pursuing non-NLRA civil

rights remedies, even though the discrimination arose in

a context of NLRA-regulated activities. That Title VII

allows for dual-filing of discrimination complaints with

both the Equal Employment Opportunity Commission

and state anti-discrimination agencies - thus expressly

preserving all statutory rights — should not extinguish an

Ee

11

individual’s state cause of action. Indeed, the Congres-

sional intent is obviously otherwise. Shaw v. Delta Air

Lines, supra, 463 U.S. at 102-103.

The second Garmon exception - the uniquely local

aspect of anti-discrimination law enforcement - further

supports the argument against preemption. The states’

interest in prohibiting discrimination has been deemed

“substantial” and “compelling” and is therefore a para-

mount basis for exercising their police powers. Board of

Directors of Rotary International v. Rotary Club of Duarte,

supra; Ohio Civil Rights Comm. v. Dayton Christian Schools,

supra, 477 U.S. at 628. This is precisely why state civil

rights statutes complement - and in fact play a significant

part in — Title VII’s enforcement scheme. Congress made

clear that Title VII does not supersede state law in this

area, and, as mentioned above, permits for preservation

of a claimant’s rights by providing for dual-filed com-

plaints.

The eradication of discrimination in employment has

long been recognized to be a supreme interest of the

states. That such discrimination may arise in a context

which also invokes the authority of the NLRB because it

involves unlawful labor organizational practices should

not deprive a victim of discrimination of the appropriate

remedy for the violation of his or her civil rights. This

intent was not expressed by Congress when it enacted the

NLRA and should not be inferred therefrom.

In sum, amici curiae respectfully submit that the peti-

tion should be granted on this preemption issue, on

which there is a split between the decision below and

those of various state supreme courts, and which will

12

have a significant impact on the states’ enforcement of

their anti-discrimination laws.

+

CONCLUSION

For the foregoing reasons amici curiae states respect-

fully request this Court to grant the petition for a writ of

certiorari on both the abstention and preemption ques-

tions raised by the petition.

ANDREA M. SILKOwITZ

Respectfully submitted,

DesoraAH T. Poritz

Attorney General of New Jersey

Attorney for the State of

New Jersey and other amici

curiae States

Division of Law

Hughes Justice Complex

CN 112

Trenton, New Jersey 08625

Phone No. (201) 648-7579

Assistant Attorney General

Of Counsel

JEFFREY C. BURSTEIN

Deputy Attorney General

Counsel of Record and On the Petition

CHARLES S. COHEN

Deputy Attorney General

On the Petition