Petition for Writ of Certiorari — Cleveland v. Wilken

Supreme Court, U.S.

FILED

9.8 — 1-4 —JUN-2 6.1998

_ OFFICE OF THE CLERK

Supreme Court of the United States

October Term, 1997

+

JOHN CLEVELAND, VENANT JOSEPH, RUDDY

PEART, GARNETT BURTON, PETER MATHURIN,

PATRICK PHILLIP, GREGORY SCHELL, SARAH

CLEVELAND, T.A. WYNER, AND THE AMERICAN

CIVIL LIBERTIES UNION CF FLORIDA, INC.,

Petitioners,

In The

V.

DOROTHY WILKEN, CLERK OF COURT OF THE

FIFTEENTH JUDICIAL CIRCUIT, AND ROBERT

BUTTERWORTH, in his official capacity as Attorney

General of the State of Florida,

Respondents.

€ —

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

e wubetueiemeretemsmensnaie

PET'TION FOR A WRIT OF CERTIORARI

+

James K. GREEN

JAMes K. Green, P.A.

One Clearlake Centre, Suite 1602

250 S. Australian Avenue

West Palm Beach, FL 33401

Phone 561-659-2029

Fax 561-655-1357

Counsel of Record

Mark R. Brown

Visiting Professor of Law

University of Illinois

College of Law

504 East Pennsylvania Ave

Champaign, IL 61821

Phone 217-333-0931

Fax 217-244-1478

Cooperating Attorneys, ACLU

Foundation of Florida, Inc.

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether appellate review of a District Court's

decision to abstain under Pullman is deferential or de

novo?

2. Whether Pullman abstention is proper for plain-

tiffs whose federal claims are not affected by state law

merely because they are joined with other plaintiffs’

claims which potentially are?

3. Whether pending state proceedings justify both

Pullman abstention and a federal court’s refusal to use

adequate state certification procedures?

il

TABLE OF CONTENTS

Page

CUES LEAS FPIREOEMONEIEE os (oak bss hewwssesnuabrees i

EAR CE PUTER RE ie bn ved dad deka exe ious ili

ey ee ke, Re aa eo SE ery e ]

STATEMENT OF FURIES TOI: ss cows cainiawiecaand l

SIALBMOINE OF 8250 CABS iis ves Videtioeeveress 2

REASONS FOR GRANTING THE PETITION....... 4

I. The Eleventh Circuit’s Abuse of Discretion Stan-

dard Conflicts With the De Novo Review Stan-

dards of the Second, Third, Fifth, Ninth And

Tertthn (SCs os sk iv nko doe ee eee 4

Il. The Eleventh Circuit Erred in Ordering Absten-

tion for Non-indigent Petitioners Whose Claims

Will Not and Cannot Be Affected Nor Modified

by an Indigency Exception. . oss 6. esrsa<seerees 8

Ill. The Eleventh Circuit Erred by Abstaining and Not

Certifying the Relevant State Law Questions to the

Florida Supreme Court Notwithstanding Adequate

State Certification Procedures ................... 13

CONCLUSION 0.5140 <o50050 5 bk one eee eee eee 20

APPENDIX

Opinion of the United States Court of Appeals

for the Eleventh Circell ...c) a sana App. 1

Order of the United States District Court for the

Southern District of FROWIGA: i.ocds ck oo kee App. 4

ill

TABLE OF AUTHORITIES

Page

CASES

Aldrich v. Aldrich, 375 U.S. 249 (1963).............. 16

Alliance For Clean Coal v. Bayh, 888 F.Supp. 924

(S.D. Ind.), aff'd, 72 F.3d 556 (7th Cir. 1995)....... 1]

America’s Best Family Showplace Corp. v. City of

New York, 530 F. Supp. 607 (E.D.N.Y. 1982)....... 12

Arizonans for Official English v. Arizona, 117

ee Se ROWE ae aes teh wed ems Kans 14, 15, 16, 17, 19

Bellotti v. Baird, 428 U.S. 132 (1976) ..... 14, 15, 16, 19

Brown v. Atlantic Sugar Ass’n, No. CL-91-310-7-

ey Re Rae Ni vk ea Wks hak cob ae dws 2

Camps Newfound/Owatanna, Inc. v. Town of

Pee Bae eG, CO ROWOT Ria vice eax yncieceee 9

Casines v. Murchek, 766 F.2d 1494 (11th Cir. 1985) ..... 4

Cedar Shake and Shingle Bureau v. City of Los

Angeles, 997 F.2d 620 (9th Cir. 1993)............... 6

Chez Sez III Corp. v. Township of Union, 945 F.2d

I SE ES oa On hn 065450 aed ob ac bee cnaaaewe 6

City of Houston v. Hill, 482 U.S. 451 (1987)..8, 10, 12, 16

Clay v. Sun Insurance Office Ltd., 363 U.S. 207

IRE CRE Re eee eee Sere Pee 2 ee eer eae 13

Commissioner of Internal Revenue v. McCoy, 484

te ee ay eae pha RPah Anse OAKES one Os Hes 1

Copier v. Smith & Wesson Corp., 138 F.3d 833

ey EO he Asis on 6 vw ius Sek dw ha wakas.eas 17

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)... 11, 12, 13

Dresner v. City of Tallahassee, 375 U.S. 136 (1963) .... 16

TABLE OF AUTHORITIES - Continued

Page

Elkins v. Moreno, 435 U.S. 647 (1978) ............... 17

Garamendi v. Allstate Ins. Co., 47 F.3d 350 (9th

ee. Pay ree Soe er rset re rey oe eer eye 6

Gottfried v. Medical Planning Services, 1998 WL

Vie Be AS. Se rere peter es re 12

Howlett v. Rose, 496 U.S. 356 (1990) ................ 10

Jayaraj v. Scappini, 66 F.3d 36 (2d Cir. 1995) ........ 17

Joseph v. Okeclanta Corp., No. CL-91-3105-AO

CER: Baek SR, Ae 8 642. os Wee a eee ab aw 2

Lansing Mercy Ambulance Service v. Tri-County

Emergency Medical Control Authority, 893 F.

Supp. 1337 (W.D. Mich. 1995), aff'd on other

STOUMIG, ELD Tate Oto LON SG Bee oes he aew recess 17

Lehman Bros. v. Schein, 416 U.S. 386

gh ts | re ree wey a, pe kay 80) OF, 80

Louisiana Debating and Literary Ass’n v. City of

New Orleans, 42 F.3d 1483 (5th Cir. 1995) ......... 6

Lunding v. New York Tax Appeals Tribunal, 118 S.

Ci Pe Ree orks kek ee ee ke a ee ea ee 10

Marks v. Stinson, 19 F.3d 873 (3rd Cir. 1994)........ 12

New Orleans Public Service, Inc. v. Council of

City of New Orleans, 491 U.S. 350 (1989).......... 7

Northeastern Florida Chapter of Associated Gen-

eral Contractors v. City of Jacksonville, 508 U.S.

GG (IDSS) . vciiios isdn sia oh ena cae ee een 10

O’Hair v. White, 675 F.2d 680 (5th Cir. 1982)......... 6

rs

TABLE OF AUTHORITIES - Continued

Page

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)...... 11

Planned Parenthood of Dutchess-Ulster v. Stein-

Ba Bok pe re Oye ee BB...) NR a ge rae 6

Pyle v. South Hadley School Committee, 55 F.3d

ee Seek Ge, SE bebe hoa wake cond 6o0dss ee 18, 19

Quackenbush v. Allstate Ins. Co., 517 U.S. 706

NE 5 sx dc cho wk ep Ros ay FEE KO 7

Railroad Commission of Texas v. Pullman Co., 312

Co ee CARRE G OH 6 ek RENE ae T hae passim

Rindley v. Gallagher, 929 F.2d 1552 (11th Cir. 1991)..... +

Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995)........ 18

Nt Ae, De UES CROMER ia ou cs ove hn oe eeue l

Steffel v. Thompson, 415 U.S. 452 (1974) ..... ip ag & Aa

Stone v. Wall, 135 F.3d 1438 (11th Cir. 1998)....... 4,18

Strochak v. Federal Insurance Co., 707 So. 2d 727

Es BORG 70 kek acs Ra Ee CN OE Ro 14

Summit Medical Associates v. James, 984 F. Supp.

SE Se: es PE Vie oh hake eek eae Cee 17

United Home Rentals v. Texas Real Estate Com-

mission, 716 F.2d 324 (5th Cir. 1983)............... 6

Vinyard v. King, 655 F.2d 1016 (10th Cir. 1981)....... 7

Virginia Society for Human Life v. Caldwell, 906 F.

eg eRe. Oe nee a er ee 17

——————

Vi

TABLE OF AUTHORITIES - Continued

Page

Virginia v. American Booksellers Ass’n, 484 U.S.

PE SUE 3 oO 5S Codes ke Ci Cate e a eben ee 17, 19

Younger v. Harris, 401 U.S. 37 (1971) ............ ‘s. 32

FEDERAL STATUTES

Se se CRD sh oG.o POET ACR Cee ewe Eee l

Sk a BE oe ow kk RR ER OE LER UL 2

ee Ras ee Oe fuss Wok RR eed eed aas eee 2

eS, i cs ha eeu peed awn ye ire 6 etter

STATE STATUTES, RULES AND

CONSTITUTIONAL PROVISIONS

eS, ek, es SS oc 4 9 0 Soe ean 3, 4

PeeeCee Fae eeeeee,. We BODE 6 cise oie i Se Pea eres 14

Pas Wis: WANs Oy RAE i've 5 nb O50 ve bees ba eee is, i

Fa PE ea Sb CAPER ad Wick wb yaw bcaie ne bak de eh EKS 2

3) Wig ae SE ye) SD ree ere ermeret ai. ea

MISCELLANEOUS

Bradford R. Clark, Ascertaining the Laws of the

Several States: Positivism and Judicial Federalism

After Erie, 145 U. Pa. L. Rev. 1459 (1997).......... 18

Martha A. Field, The Abstention Doctrine Today, 125

5m ie ee a a. gs 5 PR ae geek ee 17

Proposed Long Range Plan for the Federal Courts,

Recommendation 7 (November 1994).............. 18

iN

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition this Court for a writ

of certiorari to review the final judgment of the United

States Court of Appeals for the Eleventh Circuit, entered

on April 3, 1998.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eleventh Circuit is not reported! and is reprinted in

the Appendix, (App., infra, 1). The opinion of the United

States District Court for the Southern District of Florida is

not reported and is reprinted in the Appendix, (App.,

infra, 4).

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Eleventh Circuit was entered on November 20,

1997. The United States Court of Appeals for the Eleventh

Circuit denied timely petitions for rehearing and rehear-

ing en banc on April 3, 1998. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. § 1254(1).

¢

1 See Comm’r of Internal Revenue v. McCoy, 484 U.S. 3, 7

(1987) (“the fact that the Court of Appeals’ order under

challenge here is unpublished carries no weight in our decision

to review the case.”); Smith v. U.S., 502 U.S. 1017, 1020 n.* (1991)

(Blackman, J., dissenting) (“The fact that the Court of Appeals’

opinion is unpublished is irrelevant. Non-publication must not

be a convenient means to prevent review.”).

ho

STATEMENT OF THE CASE

he jurisdiction of the District Court was invoked

under 28 U.S.C. §§ 1331 and 1343, this being a federal

constitutional challenge brought under 42 U.S.C. § 1983

Petitioners consist of seven individuals, six indigent and

one non-indigent, who live outside the state of Florida

and who either have filed,2 or who seek to file,? civil

actions in Florida’s state courts. (R.11). Six are migrant

workers. Two additional Petitioners are licensed lawyers

in Florida who either represent or who have represented

indigent and non-indigent migrant workers in state court

proceedings. (Id.) Lastly, the American Civil Liberties

Union of Florida, Inc. (“ACLU”), a Florida non-profit

corporation which provides litigation costs to lawyers

and non-resident plaintiffs in Florida’s courts, irrespec-

tive of indigency, joins as a Petitioner in this litigation.

(/d.)

Petitioners challenge Florida’s non-resident bond

requirement (codified at Fla. Stat. Ann. § 57.011), which

requires all plaintiffs living outside the state to post $100

bonds in order to pursue claims in Florida’s state courts.

Florida law holds both the plaintiff and lawyer personally

Petitioners, Garnett Burton, Peter Matnurin and Patrick

Phillip, are indigent plaintiffs in Brown v. Atlantic Sugar Ass‘n,

No. CL-91-3107-AO (Fla. 15th Jud. Cir.). Petitioners, Venant

Joseph and Ruddy Peart, are plaintiffs in Joseph v. Okeclanta

Corp., No. CL-91-3105-AO (Fla. 15th Jud. Cir.). Joseph is

indigent, Peart is not (R.11).

’ Petitioner, John Cleveland, is indigent, and has no action

pending in state court. Petitioner, T.A. Wyner, is indigent and

has separate actions pending in state court. (R.11).

responsible for this bond. Petitioners have been threat-

ened with dismissals of pending state court proceedings

and have been threatened with personal liability for the

required bond.

Petitioners filed the present action under 42 U.S.C.

§ 1983 on December 21, 1995 against the Clerk of Flor-

ida’s Fifteenth Judicial Circuit (a local governmental offi-

cial) and the State’s Attorney General (hereinafter

referred to collectively as “the State”). Petitioners, inter

alia, argue that Florida’s bond requirement facially vio-

lates Article I, § 8 (the “Dormant Commerce Clause”) and

Article IV, § 2 (the “Privileges and Immunities Clause”) of

the United States Constitution, because it discriminates

between resident and non-resident plaintiffs. The State

claimed, in response, that indigent non-resident plaintiffs

may be entitled to waivers under either Article I, § 21 of

the Florida Constitution (governing access to courts), or

Fla. Stat. Ann. § 57.081(1) (governing in forma pauperis

proceedings). The state therefore argued that these state

law issues justified federal abstention in favor of state

court proceedings.

On February 27, 1996, the District Court denied Peti-

tioners’ Motion for Preliminary Injunction and abstained

from further proceedings “pending resolution of Plain-

tiffs’ state court claims in state court.” (App., infra, 13).

On March 26, 1996, Petitioners filed their Notice of

Appeal and moved the Eleventh Circuit to certify the

state law issues to the Florida Supreme Court pursuant to

Florida’s certification procedure. (R.27).

On November 20, 1997, a three-judge panel, Judges

Anderson, Edmondson and Rosenn, held that abstention

was proper as to all Petitioners, regardless of indigency,

and refused to certify the indigency exception question to

the Florida Supreme Court. (App., infra, 2-3). Petitioners

thereafter moved for Rehearing and suggested Rehearing

En Banc. This motion was denied on April 3, 1998.

¢

REASONS FOR GRANTING THE PETITION

I. THE ELEVENTH CIRCUIT’S ABUSE OF DISCRE-

TION STANDARD CONFLICTS WITH THE DE

- NOVO REVIEW STANDARDS OF THE SECOND,

THIRD, FIFTH, NINTH AND TENTH CIRCUITS.

The District Court abstained under Railroad Commis-

sion of Texas v. Pullman Co., 312 U.S. 496 (1941), because it

felt that state law, particularly Article I, § 21 (governing

access to courts) of the Florida Constitution, might pro-

vide indigent non-resident plaintiffs an exception to the

statutory bond requirement. (App., infra, 10.) The Elev-

enth Circuit affirmed because it found that state law

“could provide a definitive interpretation of the Florida

statute which may substantially modify the federal ques-

tion in this split issue case.” (App., infra, 2).

The long-standing rule in the Eleventh Circuit is that

decisions to abstain and not to abstain under Pullman are

reviewable only for an abuse of discretion. See Stone v.

Wall, 135 F.3d 1438, 1441 (11th Cir. 1998) (“We reverse a

district court’s decision to abstain when there is an abuse

of discretion.”); Rindley v. Gallagher, 929 F.2d 1552, 1554

(11th Cir. 1991) (“In the Eleventh Circuit, a district court’s

decision to abstain will only be reversed upon a showing

of abuse of discretion.”); Casines v. Murchek, 766 F.2d

1494, 1502 (11th Cir. 1985) (Pullman abstention subject to

review only for abuse of discretion).

Petitioners argued before the Eleventh Circuit that a

de novo standard of review ought to be applied to the

District Court’s affirmative decision to abstain under

Pullman. Although the Eleventh Circuit failed to cite any

relevant standard of review in its two-page, per curiam

decision, well-established Eleventh Circuit precedent and

the Eleventh Circuit’s cursory decision to abstain as to

even non-indigent Petitioners* establish that it reviewed

the District Court’s abstention decision only for an abuse

of discretion.

Every other circuit that has addressed this question

has applied a de novo standard of review for abstention

decisions. While the decision not to abstain is generally

subjected to an abuse of discretion standard, these cir-

cuits agree that whether a case fits within the narrow

Pullman abstention requirements is reviewed de novo.

The Third Circuit, for instance, has held that

[iJn reviewing a district court’s abstention deci-

sion, we apply two separate standards of

review. The district court’s determinations as to

the first two “special circumstances”, that is,

whether state law is uncertain and whether state

law is amenable to a construction that would

obviate or narrow the constitutional issues pre-

sented, are essentially legal decisions which are

to be reviewed de novo by this court,. ...

4 See infra at 8-13.

Chez Sez III Corp. v. Township of Union, 945 F.2d 628, 631

(3d Cir. 1991) (discussing Pullman.)

The Second Circuit likewise has stated that Pullman

“[a]bstention is a narrow exception to the generally broad

duty of federal courts to exercise jurisdiction. There is

little, if any, discretion to abstain in a case which does not

meet the requirements of a particular abstention princi-

ple.” Planned Parenthood of Dutchess-Ulster v. Steinhaus, 60

F.3d 122, 126 (2d Cir. 1995).

The Fifth Circuit initially declared that both affirma-

tive abstention and its rejection are reviewed de novo. See

United Home Rentals v. Texas Real Estate Commission, 716

F.2d 324, 332 n.19 (5th Cir. 1983) (“review of the district

court’s refusal to abstain is predicated on a de novo stan-

dard.”); O’Hair v. White, 675 F.2d 680 (5th Cir. 1982). It

recently joined the Second and Third Circuits, however,

and declared that a de novo standard applies only to

whether the conditions of Pullman abstention are met.

Assuming these conditions are met, a decision not to

abstain is reviewed for an abuse of discretion. See Louisi-

ana Debating and Literary Ass'n v. City of New Orleans, 42

F.3d 1483, 1489 (Sth Cir. 1995).

The Ninth and Tenth Circuits are in agreement with

the Second, Third and Fifth. While they review “the deci-

sion not to abstain for an abuse of discretion,” Cedar Shake

and Shingle Bureau v. City of Los Angeles, 997 F.2d 620, 622

(9th Cir. 1993), they agree that “[a] district court has no

discretion to abstain where the abstention requirements

are not met; whether those requirements are met is

reviewed de novo.” Id. See also Garamendi v. Allstate Ins.

ae

Co., 47 F.3d 350, 354 (9th Cir. 1995) (“[t]here is no discre-

tion to abstain in a case that does not meet the require-

ments of the abstention doctrine being invoked. We

review whether those requirements are met de novo.”),

aff'd sub nom. on other grounds, Quackenbush v. Allstate Ins.

Co., 517 U.S. 706 (1996). “The question of the clarity of

state law is essentially legal in nature and our review is de

novo.” Vinyard v. King, 655 F.2d 1016, 1019 (10th Cir. 1981)

(discussing Pullman abstention).

Because the Eleventh Circuit's deferential standard of

review for an affirmative decision to abstain contradicts

the standard applied in every other circuit, this Court

should grant certiorari to resolve the conflict. See

Supreme Court Rule 10.1(a). The Eleventh Circuit appears

to be the only circuit applying a deferential standard of

review. This Court has yet to expressly resolve this

important issue. Its most recent abstention decision,

Quackenbush v. Allstate Insurance Co., 517 U.S. 706 (1996),

appeared to address the propriety of a lower court’s

abstention decision de novo. The Court was not asked in

Quackenbush, however, to state the proper standard of

review. Similarly, this Court’s holding in New Orleans

Public Service, Inc. v. Council of City of New Orleans, 491

U.S. 350 (1989) (NOPSI), which overturned a lower

court’s decision to abstain, suggests a stringent standard

of appellate review. Again, the Court was not asked in

NOPSI to rule on the proper standard of review, and thus

the matter remains open.

Il. THE ELEVENTH CIRCUIT ERRED IN ORDERING

ABSTENTION FOR NON-INDIGENT PETI-

TIONERS WHOSE CLAIMS WILL NOT AND

CANNOT BE AFFECTED NOR MODIFIED BY AN

INDIGENCY EXCEPTION.

Pullman abstention is predicated on two conditions:

first, state law must be ambiguous, and second, state law

must potentially resolve or modify the case so that fed-

eral constitutional issues can be avoided. See, e.g., City of

Houston v. Hill, 482 U.S. 451, 468 (1987). In the present

case, the District Court found that abstention was proper

because the Florida Constitution might admit an indi-

gency exception to its non-resident bond requirement.

Similarly, the State argued on appeal that state statutory

law, specifically Fla. Stat. Ann. § 57.081(1), which pro-

vides for waivers of fees for individuals proceeding in

forma pauperis, might provide an exception for indigents.°®

Relying on these possibilities, the Eleventh Circuit con-

cluded that state law “could provide a definitive inter-

pretation of the Florida statute which may substantially

> Even if the State is correct, the indigency exception

created by Fla. Stat. Ann. § 57.081(1) itself discriminates. It

requires that as a condition of indigency one must certify that

“no person has been paid or promised any payment of any

remuneration by the applicant for services performed on behalf

of the applicant in connection with the action or proceeding.” Id.

An attorney who represents an indigent plaintiff, meanwhile,

must certify that she “has not been paid or promised payment of

any remuneration for services and intends to act as attorney for

the applicant without compensation.” Id. Hence, while residents

can proceed without posting the bond and with compensated

counsel, non-residents can have the bond waived only if they

waive their right to compensated counsel.

~~

modify the federal question in this split-issue case.”

(App., infra, 2).

Assuming that both the Florida Constitution and Fla.

Stat. Ann. § 57.081(1) allow exceptions to Florida’s non-

resident bond requirement and justify abstention as to

those Petitioners who are indigent, Pullman abstention is

still not warranted for the four Petitioners who are not

indigent. While the Eleventh Circuit noted the presence

of non-indigent Plaintiffs, it held that Pullman abstention

was proper for all, indigent and non-indigent alike:

The non-indigent plaintiff who has brought only

this instant federal action and has not sued in

the state court asserts his claims cannot be

raised in the state court litigation. It may well be

that even as to his claim, . . . a consideration of

the constitutional questions raised in the federal

action may be rendered unnecessary.

(App., infra, 2).

How an indigency exception might benefit non-indi-

gent plaintiffs, as well as their attorneys and representa-

tives, is left unexplained by the Eleventh Circuit. Indeed,

no one has ever suggested that Florida law allows, or

even theoretically might allow, non-indigent plaintiffs the

luxury of bypassing Florida’s non-resident bond require-

\ment.

Petitioners claim that Florida’s bond requirement

facially violates the Privileges and Immunities Clause

and the Dormant Commerce Clause. Both of these consti-

tutional provisions prohibit discrimination against citi-

zens based on their residence. See Camps Newfound/

Owatanna, Inc. v. Town of Harrison, 117 S. Ct. 1590 (1997)

10

(denial of tax exemption to camps operated principally

for non-residents violates Dormant Commerce Clause);

Lunding v. New York Tax Appeals Tribunal, 118 S. Ct. 766

(1998) (denial of tax deduction to non-resident violates

Privileges and Immunities Clause). Indeed, in Howlett v.

Rose, 496 U.S. 356, 382 n.26 (1990), this Court stated that

the “privileges and immunities clause requires a state to

accord to citizens of other states the same right of access

to its courts as it accords to its own citizens.” According

free access to residents while forcing non-residents to

either pay or seek an indigency exemption is not “the

same right of access” addressed in Howlett. Even assum-

ing that state law admits an indigency exception, Peti-

tioners’ discrimination claims remain. Petitioners who

can afford to pay are required to post bonds that state

residents, indigent or not, are not. While an indigency

exception might affect the claims of indigent plaintiffs,® it

has nothing to do with the claims of non-indigents.

© Even the constitutional claims of indigent Petitioners will

remain following abstention. Their claim is one of disparate

treatment based on their non-resident status. An indigency

exception for non-residents cannot cure the disparate treatment

they suffer when similarly situated residents are not required to

seek an exemption. While residents proceed directly to court

without posting a bond, non-residents must either post the

bond or prove indigency. Rather than resolve the constitutional

question, this begs it. See also supra note 5 (indigents must waive

right to compensated counsel). This Court has recognized facial

injuries based on disparate treatment in cases arising under the

Fourteenth Amendment Equal Protection Clause. See

Northeastern Florida Chapter of Associated General Contractors v.

City oj jacksonville, 508 U.S. 656 (1993). It has also noted that

abstention is inappropriate in the context of facial constitutional

challenges. See City of Houston v. Hill, 482 U.S. 451, 467 (1987)

11

The Eleventh Circuit’s decision creates an “absten-

tion by association” exception to the limits of Pullman.

Under that court’s ruling, when a plaintiff with a proper

and timely federal claim in federal court joins a plaintiff

subject to Pullman abstention, the district court must abs-

tain as to both. This Court has rejected this argument in

the only abstention context in which it has been raised -

Younger v. Harris, 401 U.S. 37 (1971). In Doran v. Salem Inn,

Inc., 422 U.S. 922, 928 (1975), the Court rejected the claim

that “three plaintiffs should automatically be thrown into

the same hopper for Younger purposes. ...” Although

“on occasion there will be duplicating and overlapping

adjudication of cases which are sufficiently similar in

content, time, and location to justify being heard before a

single judge had they arisen within a unitary system,” id.,

“each of the [parties] should be placed in the position

required by our cases as if that [party] stood alone.” Id. at

29.7 See also Steffel v. Thompson, 415 U.S. 452 (1974) (same).

(“we have been particularly reluctant to abstain in cases

involving facial challenges based on the First Amendment.”);

Pike v. Bruce Church, Inc., 397 U.S. 137, 140 n.3 (1970) (holding

abstention improper in the context of the Dormant Commerce

Clause). See also Alliance For Clean Coal v. Bayh, 888 F. Supp. 924

(S.D. Ind.), aff'd, 72 F.3d 556 (7th Cir. 1995) (holding abstention

improper where plaintiffs raised facial claim under Dormant

Commerce Clause).

7 The Court noted that “there plainly may be some

circumstances in which legally distinct parties are so closely

related that they should all be subject to Younger considerations

which govern any one of them... . ” 422 U.S. at 928. However,

even though all the Younger plaintiffs “were represented by

common counsel, and have similar business activities and

problems,” id. at 929, “they are apparently unrelated in terms of

ownership, control, and management,” id., and thus were

12

Since Doran and Steffel, the rule has been well-estab-

lished that federal courts should not abstain under Youn-

ger where the plaintiff is not the target of state court

proceedings, even if others are. See, e.g., Gottfried v. Medt-

cal Planning Services, 1998 WL 177955 (6th Cir. 1998)

(“Younger abstention does not apply because [plaintiff]

has not violated the injunction and is not the target of a

pending prosecution in state court.”) No court, other than

the lower courts here, has held that a plaintiff whose

claim is not properly subject to Pullman abstention must

await state court proceedings involving co-plaintiffs’

claims that are. See, e.g., America’s Best Family Showplace

Corp. v. City of New York, 530 F. Supp. 607, 610 n.5

(E.D.N.Y. 1982) (“the Doran case is no less dispositive

because the abstention issue arose under the Younger

abstention doctrine, rather than the Pullman abstention

doctrine relied on by defendants in this case.”).

This issue is ripe for certiorari because the Eleventh

Circuit disregarded the weil-established abstention prece-

dent of this Court. See Supreme Court Rule 10.1(c). Pull-

man abstention is predicated on a possibility of avoiding

federal constitutional issues. Hill, 482 U.S. at 468. Non-

resident plaintiffs who are not indigent will continue to

be treated differently regardless of whether Florida cre-

ates an indigency exception. Four Petitioners in this case

subject to independent treatment under Younger. Id. In the

present case, non-indigent Petitioners are not related in any way

to the indigent Petitioners, and thus do not fall into this “closely

related” exception. Cf. Marks v. Stinson, 19 F.3d 873, 884 n.7 (3rd

Cir. 1994) (reserving “for another day” whether candidates and

voters are “closely related” for purposes of Younger).

13

are either not indigent or represent non-indigent plain-

tiffs. Not all the Petitioners even have claims pending in

state court. Their constitutional claims should not be

thrown into the same hopper with the claims of indigent

plaintiffs suing in state court. See Doran, 422 U.S. 922;

Steffel, 415 U.S. 452.

il. THE ELEVENTH CIRCUIT ERRED BY ABSTAIN-

ING AND NOT CERTIFYING THE RELEVANT

STATE LAW QUESTIONS TO THE FLORIDA

SUPREME COURT NOTWITHSTANDING ADE-

QUATE STATE CERTIFICATION PROCEDURES.

Florida Rule of Appellate Procedure 9.150(a) allows

the Florida Supreme Court to receive and answer ques-

tions certified to it by federal appellate courts. It states:

On either its own motion or that of a party, the

Supreme Court of the United States or a United

States court of appeals may certify a question of

law to the Supreme Court of Florida if the

answer is determinative of the cause and there

is no controlling precedent of the Supreme

Court of Florida.

Fla. R. App. P. 9.150(a). Both this Court and the courts of

appeals have used this procedure on numerous occasions

in the past. See Lehman Bros. v. Schein, 416 U.S. 386, 390 &

nn.5 & 6 (1974) (collecting cases). Indeed, Florida was the

first state to offer such a procedure. See Clay v. Sun

Insurance Office Ltd., 363 U.S. 207 (1960).

14

This Court has often trumpeted an “adequate certi-

fication procedure”® as “sav[ing] time, energy, and

resources and help[ing] build a cooperative judicial feder-

alism.” Bellotti v. Baird, 428 U.S. 132, 151 (1976). In Bellotti,

where the district court had abstained and enjoined

enforcement of the state abortion law pending a state

court’s resolution of the state law issues, this Court

directed the lower court to certify the question pursuant

to local law.

More recently, Arizonans for Official English v. Arizona,

117 S. Ct. 1055, 1073 (1997), stated:

Certification today covers territory once domi-

nated by a federal device called “Pullman

abstention,”. . . . Designed to avoid federal-

court error in deciding state-law questions ante-

cedent to federal constitutional issues,

Pullman abstention proved protracted and

expensive in practice, for it entailed a full round

of litigation in the state-court system before any

resumption of proceedings in federal court... .

Certification procedure, in contrast, allows a

federal court faced with a novel state-law ques-

tion to put the question directly to the State’s

highest court, reducing the delay, cutting the

cost, and increasing the assurance of gaining an

authoritative response.

(Citations omitted).

*’ There is no argument over the adequacy of Florida’s

procedures. The Florida Constitution grants jurisdiction to the

Florida Supreme Court to entertain questions certified to it by a

United States Court of Appeals or the Supreme Court, see Art. V,

§ 3(b) (6), Fla. Const., and the Florida Supreme Court continues

to willingly answer certified questions. See, e.g., Strochak v.

Federal Insurance Co., 707 So. 2d 727 (Fla. 1998).

ei

15

Petitioners moved for certification pursuant to Rule

9.150(a) immediately after filing their Notice of Appeal.

This motion was carried with the case and was ultimately

denied by the Eleventh Circuit. Disregarding the fact that

not all Petitioners had actions pending in state court, the

Eleventh Circuit justified its refusal only on the basis of

“proceedings now pending in the state court.” (App.,

infra, 2). -

While this Court has never stated that certification is

necessary to abstention, it has found that the availability

of certification makes the abstention analysis easier. In

Bellotti, it stated that while it did not “mean to intimate

that abstention would be improper in this case were

certification not possible, the availability of certification

greatly simplifies the analysis.” 428 U.S. at 151. Certifica-

tion thus justifies abstention in close cases.

The question here focuses on the grounds necessary

to justify-a federal court’s refusal to certify state law

questions pursuant to an otherwise adequate procedure

when it has decided to abstain. The Eleventh Circuit

ruled that pending state proceedings not only justified

Pullman abstention, but also justified not certifying the

state law questions it thought otherwise dispositive. This

holding contradicts the strong sug;;estion in Arizonans for

Official English that courts use certification procedures to

answer state law issues rather than abstention. There the

Court reasoned that because “Pullman abstention proved

protracted and expensive in practice, for it entailed a full

round of litigation in the state-court system before any

resumption of proceedings in federal court,” 117 S. Ct. at

16

1073, certification was the preferred course. Certification

“allows a federal court faced with a novel state-law ques-

tion to put the question directly to the State’s highest

court, reducing the delay, cutting the cost, and increasing

the assurance of gaining an authoritative response.” Id.

Hence, it is because certification avoids a “full round of

litigation in the state-court system” that it should be

used. Refusing to certify because of a “full round of state-

court litigation” turns the logic of Arizonans for Official

English on its head.

This Court has never chosen abstention over certi-

fication. While it has held that certification is not proper

where abstention is unnecessary, see, e.g., City of Houston

v. Hill, 482 U.S. 451, 468-69 (1987), once it becomes clear

that abstention is proper because state law is unsettled

this Court has always directed the lower courts to use

state certification procedures. This Court has not only

used Florida’s certification procedure, see Aldrich v.

Aldrich, 375 U.S. 249 (1963); Dresner v. City of Tallahassee,

375 U.S. 136 (1963), but has used or instructed lower

courts to use other states’ certification procedures on a

regular basis. See, e.g., Bellotti v. Baird, 428 U.S. 132, 151

9 While it is generally understood that the decision to

certify rests in the discretion of the court, see Lehman Bros., 416

U.S. at 391, this discretion presupposes that state law may or

may not be unsettled. Once the court has decided that state law

is unsettled enough to justify abstention, it cannot credibly

argue that state law is clear enough to avoid certification. It

likewise should not be heard to argue that the inefficiency of

protracted state proceedings is preferable to quick and certain

resolution by the state supreme court. See Arizonans for Official

English, 117 S. Ct. 1055.

17

(1976) (“We [] hold that the District Court should have

certified to the Supreme Judicial Court of Massachusetts

appropriate questions. . . . ”); Elkins v. Moreno, 435 U.S.

647, 668 (1978) (certifying questions to Maryland Court of

Appeals); Virginia v. American Booksellers Ass'n, 484 U.S.

383, 398 (1988) (certifying questions to Virginia Supreme

Court). See also Lehman Bros. v. Schein, 416 U.S. 386, 391-92

(1974) (vacating and remanding so that lower court might

consider certification to Florida Supreme Court).

The lower courts have largely followed this Court’s

advice to choose certification over abstention.!° While

observing that certification is discretionary and need not

be invoked in the absence of abstention, see, e.g., Copier v.

Smith & Wesson Corp., 138 F.3d 833, 838 (10th Cir. 1998),

the various districts and circuits with local certification

procedures make regular use of them when abstention

appears otherwise appropriate. See, e.g., Jayaraj v. Scap-

pini, 66 F.3d 36, 40 (2d Cir. 1995) (directing lower court to

certify questions to Connecticut Supreme Court); Summit

Medical Associates v. James, 984 F. Supp. 1404, 1438 (N.D.

Ala. 1998) (“heed[ing] counsel of the unanimous Supreme

Court in Arizonans for Official English...” and certifying

state law issues to Alabama Supreme Court); Virginia

Society for Human Life v. Caldwell, 906 F. Supp. 1071 (W.D.

Va. 1995) (certifying question to Virginia Supreme Court);

Lansing Mercy Ambulance Service v. Tri-County Emergency

Medical Control Authority, 893 F. Supp. 1337 (W.D. Mich.

10 Scholars too have also praised certification as a preferred

choice over abstention. See, e.g., Martha A. Field, The Abstention

Doctrine Today, 125 U. Pa. L. Rev. 590, 605-06 (1977).

18

1995) (certifying issues to Michigan Supreme Court), aff'd

on other grounds, 125 F.3d 855 (6th Cir. 1997). See also

Proposed Long Range Plan for the Federal Courts, Rec-

ommendation 7, at 27 (November 1994) (“The states

should be encouraged to adopt certification procedures,

where they do not currently exist, under which federal

courts (both trial and appellate) could submit novel or

difficult state law questions to state supreme courts.”)

The First Circuit has gone so far as to hold that “[w]Jhile

uncertainty or difficulty regarding state law is generally

not sufficient to justify traditional abstention, it may be

enough to counsel certification where that procedure is

available.” Pyle v. South Hadley School Committee, 55 F.3d

20, 22 (1st Cir. 1995). Hence, in the First Circuit it appears

that certification will always obtain where abstention is

warranted, and will even be proper on occasion when it

is not.!!

Where abstention is warranted and certification pro-

cedures exist, the presumption is in favor of certification.

See Bradford R. Clark, Ascertaining the Laws of the Several

States: Positivism and Judicial Federalism After Erie, 145 U.

11 Strangely, the Eleventh Circuit between 1990 and 1994

had one of the higher certification rates in the country. See

Bradford R. Clark, Ascertaining the Laws of the Several States:

Positivism and Judicial Federalism After Erie, 145 U. Pa. L. Rev.

1459, 1549 n.476 (1997) (noting that the Eleventh Circuit had a

91% certification rate). Since 1994 it has continued to certify

questions. See, e.g., Roe v. Alabama, 43 F.3d 574, 582-83 (11th Cir.

1995) (certifying to Alabama Supreme Court); Stone v. Wall, 135

F.3d 1438, 1443 (11th Cir. 1998) (certifying question to Supreme

Court of Florida).

19

Pa. L. Rev. 1459, 1550-56 (1997) (arguing for a presump-

tion in favor of certification). In the absence of strong

countervailing reasons that overcome efficiency and the

ultimate authority of the state’s highest court, see Arizo-

nans for Official English, a federal court should certify

state law questions that justify abstention to the state

supreme court. Because the Eleventh Circuit’s refusal to

certify was based only on the pendency of state court

proceedings, its opinion contradicts the express language

of Arizonans for Official English and the established prac-

tice of this Court, see, e.g., Bellotti, Lehman, Virginia Book-

sellers, and virtually every other circuit. See, e.g., Pyle, 55

F.3d at 22. This Court should grant certiorari in order to

make it clear that in the absence of strong countervailing

reasons, certification is the preferred course and should

be used once the lower court finds state law unsettled

enough to support abstention. See Supreme Court Rule

10.1(a) & (c).

20

CONCLUSION

For the foregoing reasons, Petitioners respectfully

request that this Court grant certiorari to the United

States Court of Appeals for the Eleventh Circuit.

Respectfully submitted,

James K. GREEN

James K. Green, P.A.

One Clearlake Centre, Suite 1602

250 S. Australian Avenue

West Palm Beach, FL 33401

Phone 561-659-2029

Fax 561-655-1357

Counsel of Record

Mark R. Brown

Visiting Professor of Law

University of Illinois

College of Law

504 East Pennsylvania Ave.

Champaign, IL 61821

Phone 217-333-0931

Fax 217-244-1478

Cooperating Attorneys, ACLU

Foundation of Florida, Inc.

Attorneys for Petitioners

App. 1

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 96-4424

D.C. Docket No. 95-8784-CV-JAG

JOHN CLEVELAND, VENANT JOSEPH,

RUDDY PEART, GARNETT BURTON,

PETER MATHURIN, PATRICK PHILLIP,

GREGORY SCHELL, SARAH

CLEVELAND, T.A. WYNER,

AMERICAN CIVIL LIBERTIES UNION

OF FLORIDA, INCORPORATED,

Plaintiffs-Appellants,

versus

CLERK OF COURT, FIFTEENTH

JUDICIAL CIRCUIT, Dorothy Wilken as

Clerk of Court, ATTORNEY GENERAL,

STATE OF FLORIDA, Robert Butterworth

in his official capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Florida

(November 20, 1997)

App. 2

Before ANDERSON and EDMONDSON, Circuit Judges,

and ROSENN*, Senior Circuit Judge.

PER CURIAM:

Whether § 57.011 of the Florida Statutes will be inter-

preted to provide an exception from the bond require-

ment for indigents and their counsel is an issue which

could be readily raised in pending state court proceed-

ings involving some of the instant plaintiffs. The resolu-

tion of that issue in the state court could provide a

definitive interpretation of the Florida statute which may

substantially modify the federal question in this split-

issue case.

The non-indigent plaintiff who has brought only this

instant federal action and has not sued in the state court

asserts his claims cannot be raised in the state court

litigation. It may well be that even as to his claim, when

the several sections of the Florida Constitution are exam-

ined by the state court in light of Article I, section 21 of

the Florida Constitution which provides for access “to

every person for redress of any injury,” a consideration of

the constitutional questions raised in the federal action

may be rendered unnecessary. Moreover, pragmatic con-

siderations also support the district court’s decision to

abstain as to the federal questions. It is entirely possible

that the Florida courts may resolve the issue raised on

state statutory and constitutional grounds without requir-

ing the federal courts to reach federal constitutional ques-

tions, thereby avoiding needless costs and expenses to

*Honorable Max Rosenn, Senior U.S. Circuit Judge for the Third

Circuit, sitting by designation.

App. 3

the parties, to the judicial system, and delay to other

litigants who are compelled to wait by what may be

unnecessary complex federal proceedings until their suits

can be heard. See Rogers v. Desiderio, 58 F.3d 299, 300 (7th

Cir. 1995).

Appellants’ challenge to the district court’s decision

denying their motion for a preliminary injunction is

rejected for failure to demonstrate an irreparable injury

warranting such extraordinary relief. They have not

shown that they attempted to utilize § 57.081(1), which

offers an exemption from the prepayment of costs for any

party who obtains a certificate of indigency from the

Clerk. The appellants also have not shown that the attor-

neys who represent indigent clients were denied waiver

of costs under § 57.081(1) by filing an appropriate certifi-

cate asserting that their clients are indigent and that their

attorneys will not be compensated for services rendered

to such clients. As for a non-indigent party, submitting a

cost bond, if required, pending disposition of this litiga-

tion will not constitute an irreparable injury.

Finally, the request that we certify the question of law

to the Supreme Court of Florida is denied in light of the

proceedings now pending in the state court.

Accordingly, the judgment of the district court ab-

staining in this case is

AFFIRMED.

App. 4

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

JOHN CLEVELAND, VENANT

JOSEPH RUDDY PEART, GAR-

NETT BURTON, PETER

MATHURIN, PATRICK PHILLIP,

GREGORY SCHELL, SARAH

CLEVELAND, T. A. WYNER, and

the AMERICAN CIVIL LIBERTIES oe a

UNION OF FLORIDA, INC., GONZALEZ

Plaintiffs,

V.

DOROTHY WILKEN, CLERK OF

COURT OF THE FIFTEENTH

JUDICIAL CIRCUIT, and ROBERT

BUTTERWORTH, IN HIS OFFI-

CIAL CAPACITY AS ATTORNEY

GENERAL OF THE STATE OF

FLORIDA,

Defendant.

ORDER

(Filed Feb. 27, 1996)

Plaintiffs in this case are migrant farm workers and

their legal services attorneys, a civil rights activist, and

the American Civil Liberties Union of Florida, Inc.

According to Plaintiffs, Florida Statute § 57.001 [sic]

imposes upon them a constitutionally impermissible bur-

den, and has barred or threatens to bar their access to

state courts. The challenged section provides as follows:

App. 5

When a nonresident plaintiff begins an action or

when a plaintiff after beginning an action

removes himself or his effects from the state, he

shall file a bond with surety to be approved by

the clerk of $100, conditioned to pay all costs

which may be adjudged against him in said

action in the court in which the action is

brought. On failure to file such bond within 30

days after such commencement or such removal,

the defendant may, after 20 days notice to plain-

tiff (during which the plaintiff may file such

bond), move to dismiss the action or may hold

the attorney bringing or prosecuting the action

liable for said costs and if they are adjudged

against plaintiff, an execution shall issue against

said attorney.

Fla.Stat. § 57.001 [sic]. Significantly, Plaintiffs argue, the

Florida Legislature has not imposed a similar bond

requirement upon resident plaintiffs, nonresident defen-

dants, or defendants who remove their assets from Flor-

ida, nor has it included any provision to accommodate

the inability of indigent plaintiffs to afford the bond.

One case in which a court considered a situation

similar to that presented here is Clopper v. Merrill Lynch

Relocation Management, Inc., 812 F.2d 1116 (9th Cir. 1987).

The court in that case considered the constitutionality of

Or.Rev.Stat. § 20.160, which provides:

Liability of attorney of nonresident or foreign

corporation plaintiff; security for costs. The

attorney of a plaintiff who resides out of the

state or is a foreign corporation, against whom

costs are adjudged in favor of a defendant, is

App. 6

liable to the defendant therefor; and if the attor-

ney neglects to pay the same, upon the informa-

tion of the defendant shall be punished as for a

contempt. The attorney may relieve or discharge

the attorney from such liability by filing an

undertaking at the commencement of the action

or suit, or at any time thereafter before judg-

ment or decree, for the payment to the defen-

dant of the costs and disbursements that may be

adjudged to the attorney, executed by one or

more sufficient sureties.

Or.Rev.Stat. § 20.160, quoted in Clopper, at 1119. This provi-

sion is supplemented by § 20.170, which provides:

Qualification of and exception to sureties;

deposit in lieu of undertaking. The sureties in

the undertaking described in Or.Rev.Stat.

§ 20.160 shall possess the qualifications of sure-

ties in an undertaking for bail on arrest, and

their sufficiency may be excepted to by the

defendant at any time within five days from

notice of filing the same, and if so, they shall

justify in an amount not less than $200, in like

manner and with like effect as sureties for bail

on arrest. Until the time for excepting to the

sufficiency of the sureties has expired or, if

excepted to, until they are found sufficient, the

attorney is liable as if no undertaking had been

given. A deposit of $200 or other sum which the

court or judge may direct, with the clerk, may

be made in lieu of such undertaking.

Id.

The Court in Clopper first rejected the plaintiff's argu-

ment that the above provisions violated the Privileges

and Immunities Clause of the Constitution, which “does

Eee Oren ee ee

App. 7

not,” the court held, “preclude disparity of treatment in

| the many situations where there are perfectly valid inde-

| pendent reasons for it.” Toomer v. Witsell, 334 U.S. 385, 396

(1948), reh’g denied, 335 U.S. 837 (1948), quoted in Clopper,

at 1121. Thus, the Court held that the additional burden

created by § 20.160 were justified by the “potential added

difficulty of collecting costs from nonresidents. .

Clopper, at 1121.

The court next held that even if the challenged stat-

ute impeded the plaintiff’s right to travel, it was not so

restrictive or burdensome as to violate the Constitution.

The court also rejected the plaintiff’s equal protection

argument after finding that no fundamental right had

been interfered with. Id., at 1123. Finally, the court

rejected the argument that the challenged ordinance

impermissibly burdened interstate commerce. Ii.

The First Circuit Court of Appeals has also rejected

the argument that a non-resident bond requirement is

unconstitutional. Hawes v. Club Ecuestre El Comandante,

535 F.2d 140 (1st Cir. 1976). After holding that the plain-

tiffs’ fundamental rights to travel and access to the courts

were not impinged by the bond requirement, the court

applied the rational basis test and rejected the plaintiffs’

equal protection challenges. Id., at 144-145. The court in

Hawes, however, placed significant emphasis on the fact

that the local rule being challenged allowed a district

court to dispense with the bond requirement when neces-

sary to assure a plaintiff’s access to the court. Id., at

143-44. Moreover, the court made clear that a district

court applying the rule at issue was to consider, among

other factors, “[any] ownership by a nondomiciliary

App. 8

plaintiff of attachable property in the district, the likeli-

hood of success on the merits, the presence of a co-

plaintiff who is domiciled in the district, the probable

length and complexity of the litigation, the conduct of the

litigants, and the purposes of the litigation.” Id., at 144. In

closing, the court noted “that ‘to require all foreign plain-

tiffs, as such, to post substantial security as a condition to

access to the courts may well be an unconstitutional

denial of equal protection.’ ” Id., quoting Coady v. Aqua-

dilla Terminal Inc., 456 F.2d 677, 679 (1st Cir. 1972).

In a later case, placing particular emphasis upon the

plaintiff’s ability to pay, the First Circuit held that it is an

abuse of discretion for a district court to fail to consider

the above mentioned factors in determining whether the

bond requirement should be dispensed with. See e.g.

Aggarwal v. Ponce School of Medicine, 745 F.2d 723, 727-29

(Ist Cir. 1984). The court noted that:

“[wlhile it is neither unjust nor unreasonable to

expect a suitor ‘to put his money where his

mouth is,’ cf. In re Stumo, 449 F.2d 1297, 1298 (1st

Cir. 1971) (per curiam), toll-booths cannot be

placed across the courthouse doors in a haphaz-

ard fashion. The district court, in the exercise of

its sound discretion, must settle upon an assur-

ance which is fair in the light not only of the

case itself and of the exigencies faced by the

defendant, but also fair when illuminated by the

actual financial situation of the plaintiff. The

rule is a scalpel, to be used with surgical preci-

sion as an aid to the even-handed administra-

tion of justice, not a bludgeon to be employed as

an instrument of oppression.

Id., at 728.

SS eaeaeE

tte

ee Ch RA et

aetna anita tania

App. 9

Other courts have rejected arguments similar to those

presented by Plaintiffs, but without conducting a detailed

analyses [sic]. See e.g., Brewster v. North Am. Van Lines,

Inc., 461 F.2d 649 (7th Cir. 1972); Kreitzer v. Puerto Rico

Cars, Inc., 417 F. Supp. 498 (D.P.R. 1975); Russell v. Cun-

ningham, 233 F.2d 806, 811 (9th Cir. 1956).

Plaintiffs’ arguments have not received strong sup-

port by courts in the past. Florida’s bond requirement,

however, seems unique in its failure to allow a court to

dispense with the requirement when warranted by a

plaintiff’s indigence. Thus, particularly in light of the

First Circuit opinions, Plaintiff's have presented a

number of colorable claims. For reasons stated below,

however, the Court will abstain from hearing this matter

until after the state courts have the opportunity to con-

strue the challenged statute in light Article I, § 21 of the

Florida Constitution.

Article I, § 21 of the Florida Constitution provides

that “[t]he courts shall be open to every person for

redress of any injury, and justice shall be administered

without sale, denial or delay.” The Florida Supreme Court

has held that this right should be “construed liberally in

order to guarantee broad accessibility to the courts for

resolving disputes.” Psychiatric Associates v. Siegel, 610

So.2d 419, 424 (Fla. 1992). The Court accordingly has held

that the right to access the courts may be abrogated only

under two narrow circumstances:

Although courts generally oppose any burden

being placed on the right of a person to seek

redress of injuries from the courts, the legisla-

ture may abrogate or restrict a person’s access to

App. 10

the courts if it provides: 1) a reasonable alterna-

tive remedy or commensurate benefit, or 2) a

showing of an overpowering public necessity

for the abolishment of the right, and finds that

there is an alternative method of meeting such

public necessity.

Id. (citations omitted) (emphasis in original).

While Plaintiffs’ argument would be one of first

impression in the Florida courts, it appears to have sub-

stantial merit. Thus, this case may well be resolved on the

basis of the Florida constitutional provision alone. It is a

fundamental principle of federal jurisprudence that

courts should avoid reaching federal constitutional

claims if possible. As noted by the Supreme Court, “[ilf

there is one doctrine more deeply rooted than any other

in the process of constitutional adjudication, it is that we

ought not to pass on questions of constitutionality .. .

unless such adjudication is unavoidable.” Spector Motor

Service v. McLaughlin, 323 U.S. 101, 105 (1944), quoted in

Church of Scientology Flag Service Org., Inc. v. City of Clear-

water, 777 F.2d 598, 604 (11th Cir. 1985), cert. denied, 476

U.S. 1116 (1986).

In light of this principle, and in an effort to avoid

unnecessary friction between state and federal courts, the

Supreme Court approved the doctrine of abstention in the

seminal case of Railroad Commission of Texas v. Pullman

Co., 312 U.S. 496 (1941). Abstention allows a federal court

to withhold adjudication on federal constitutional claims

when it appears that the conflict presented may be

avoided solely on state law grounds. By abstaining from a

case, a federal court also avoids interfering with “impor-

tant state functions,” ruling on tentative issues of state

Ne TM Sm

App. 11

law, and deciding federal constitutional claims pre-

maturely. Harman v. Forssenius, 380 U.S. 528, 534 (1965);

Southern Ry. Co. . ‘tate Bd. of Equalization, 715 F.2d 522,

527 n.10 (11th Cir. 1983), cert. denied, 465 U.S. 1100 (1984);

Charles A. Wright, Handbook of the Law of Federal Courts,

The Abstention Doctrines § 52.

Abstention should not be ordered where the state law

is clear on its face, or if its meaning has been previously

determined by a state court, or if the federal constitu-

tional issue would have to be addressed regardless of

how the state law were construed. Instead, the state law

must be “fairly subject to an interpretation which will

render unnecessary or substantially modify the federal

constitutional question.” Harman v. Forssenius, 380 U.S.

528, 534-35 (1965), quoted in Babbitt v. United Farm

Workers Nat. Union, 442 U.S. 289, 306 (1979); Edwards v.

Sammons, 437 F.2d 1240, 1244 (5th Cir. 1971); see also

Barrett v. Atlantic Richfield Co., 444 F.2d 38, 40 (5th Cir.

1971).

Since this entire case may be resolved on state consti-

tutional grounds, abstention seems particularly appropri-

ate here. Plaintiffs are challenging the validity of state

statute [sic] on state constitutional grounds. There are no

reported cases that have considered § 57.011 in light of

Art. 1 § 21, nor is there any definitive guidance as to how

the Supreme Court of Florida would rule if presented

with this issue. Thus, the validity of the statute is uncer-

tain. Ibarra v. Bexar County Hosp. Dist., 624 F.2d 44, 47 (5th

Cir. 1980); see also Johns Manville Products Corp. v. Doyal,

510 F.2d 1196, 1198 (5th Cir. 1976), citing Reetz v. Bozanich,

397 U.S. 82, 86 (1970); Harman v. Forssenius, 380 U.S. 528,

934 (1965); Gray Line Motor Tours, Inc. v. City of New

App. 12

Orleans, 498 F.2d 293, 298 (5th Cir. 1974); Moore’s Federal

Practice, 0.203 (2d ed.); C. Wright, Federal Courts § 52 (2d

ed.). The state courts have not had the opportunity to

address this issue in the past, and it would be awkward

for this Court to rule on this matter of first impression.

While the statute seems clear on its face, Plaintiffs have

made a plausible argument that it violates the Florida

Constitution. Where a state statute is clear, but there is a

fair possibility that it violates the state’s constitution,

abstention is proper so long as the state constitutional

provision is not “the mirror of the federal one.” Herald Co.

v. McNeal, 553 F.2d 1125, 1130 n.8 (8th Cir. 1977). See also,

Examining Bd. of Engineers, Architects & Surveyors v. Flores

de Otero, 426 U.S. 572, 598 (1976). In this case there is no

similar provision in the federal Constitution.

While “we ... cannot ignore that abstention operates

to require piecemeal adjudication in many courts

... thereby delaying ultimate adjudication on the merits

for an undue length of time,” Baggett v. Bullitt, 377 U.S.

360, 375-79 (1964), in this case, Plaintiffs claims stem from

various law suits which have been brought, and which

Plaintiffs intend to bring, in state courts. Thus, this litiga-

tion became more piecemeal when the parties attempted

to drag the federal court into their dispute. The state

court should have the first crack at this issue. This may

actually save time by avoiding shuttling back and forth

between state and federal court, instead of delaying the

ultimate disposition of this case.

This Court will accordingly abstain from any further

proceedings in this case until the parties have the oppor-

tunity to [sic] the state court the issue of whether Fla.Stat.

App. 13

§ 57.001 [sic] violates Art. L, § 21 of the Florida Constitu-

tion. Should the Plaintiffs choose to submit all of their

claims to the state court, they should feel free to do so.

National Ass'n for the Advancement of Colored People v.

Sutton, 371 U.S. 415 (1963). Plaintiffs may, however,

reserve their federal claims for adjudication by this

Court, should such adjudication become necessary. Eng-

land v. Louisiana State Bd. of Medical Examiners, 375 U.S.

411, 421-22 (1964).

The Court has reviewed the motion and the record,

and being otherwise duly advised, it is hereby:

ORDERED and ADJUDGED that as follows:

1. Plaintiffs’ Motion for Preliminary Injunction,

filed on January 5, 1996, is DENIED without prejudice:

2. Pursuant to the doctrine announced in Railroad

Commission of Texas v. Pullman Co., 312 U.S. 496 (1941),

this Court hereby ABSTAINS from any further proceed-

ings in this matter pending the resolution of Plaintiffs’

state court claims in state court;

3. All proceedings in this matter are STAYED;

4. Plaintiffs are directed to file status reports with

this Court every three (3) months, outlining the progress

of the state court proceedings;

5. Should this matter be resolved such that this [sic]

the federal issues in this case become moot, the parties

shall notify this Court immediately;

6. Should the state court finally deny the relief

sought by Plaintiffs, Plaintiffs shall move this Court to

reopen this case;

7. This case is CLOSED for administrative purposes.

App. 14

DONE AND ORDERED in Chambers at Fort

Lauderdale, Florida, this 26th day of February, 1996.

/s/ Jose A. Gonzalez, Jr.

JOSE A. GONZALEZ, JR.

UNITED STATES DISTRICT

JUDGE

cc: Counsel