# Petition for Writ of Certiorari — Cleveland v. Wilken > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1183%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 525 U.S. 867 ## Text 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1183%3A1. Public record. Not legal advice.