Opposition Brief — O'Neill v. City of Philadelphia

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

NO. 94-982

In The —

Supreme Court of The Anited States

October Term 1994

JOHN O'NEILL and SAMUEL R. GOODMAN, on behalf of

themselves and all others similarly situated, -

Petitioners,

VS.

CITY OF PHILADELPHIA, PHILADELPHIA PARKING

AUTHORITY, OFFICE OF DIRECTOR OF FINANCE,

BUREAU OF ADMINISTRATIVE ADJUDICATION,

Respondents.

BRIEF OF RESPONDENT CITY OF PHILADELPHIA,

OFFICE OF DIRECTOR OF FINANCE, BUREAU OF

ADMINISTRATIVE ADJUDICATION IN OPPOSITION

TO A PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT.

Joseph A. Dworetzky

City Solicitor

Michael F. Eichert, Jr.

Chief Deputy City Solicitor

Counsel of Record

Attorneys for Respondent City

of Philadelphia, Office of the

Director of Finance, Bureau

of Administrative Adjudication

City of Philadelphia Law Department

1600 Arch Street, 8th Floor

Philadelphia, PA 19103-2081

(215) 686-5226

ee ee W207

COUNTERSTATEMENT OF THE QUESTIONS

PRESENTED FOR REVIEW

l. Did the Court of Appeals for the Third Circuit err in

reviewing the District Court's decision refusing to abstain

under Younger v. Harris, 401 U.S. 37 (1971) for abuse of

discretion, rather than de novo?

2. Did the District Court err in refusing to abstain under

Younger v. Harris, 401 U.S. 37 (1971), where state

administrative proceedings, implicating an important state

interest, had been discontinued without state judicial or

administrative review, and where Petitioners’ federal claims

could have been raised in the course of such review?

TABLE OF CONTENTS

Counterstatement of the Questions =

PUCOGMOOG TOF TROVIGW 2... wc cece eees i

hs 5 os oe eke eRe RO KO 1V

Counterstatement of the Case ................. l

EE rae 9

EEE a rr 10

I. The Standard By Which The Court Of Appeals

Reviewed The District Court's Refusal

To Abstain Was Incorrect, And In Conflict With

The Standard Of Review Applied In Other Circuits .. 10

II. The Court Of Appeals’ Decision That

Abstention Was Proper Under The Facts Of

This Case Is Consistent With The Decisions

Of This Court. However, There Exists A Conflict

Among The Circuits On This Issue ............ 12

ER ee 15

- TABLE OF AUTHORITIES

Page

Cases Cited:

Allegheny Corp. v. McCartney,

896 F.2d 1138 (8th Cir. 1990) ............... 14

Allegheny Corp. v. Pomeroy,

898 F.2d 1314 (8th Cir. 1990) ............... 14

Beltran v. State of California,

871 F.2d 777 (9th Cir. 1988) ............. 10, 11

Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800 (1976) ...... 11

Fresh International Corp. v. Agricultural Labor

Relations Bd., 805 F.2d 1353 (9th Cir. 1986) .. 10, 11

Gwynedd Properties, Inc. v. Lower Gwynedd Township,

FFU Fe BEee Ce BD on cee eenge reese 10

Hawaii Housing Authority v. Midkiff,

SOF Ws Be eee eve ewan ee eee 11, 12

Huffman v. Pursue, Ltd.,

Re Re 2 nr 12, 13

Juidice v. Vail, 430 U.S. 327 (1977) ........... 13

Kentucky West Virginia Gas Co. v. Pennsylvania

Public Utility Comm'n,

Tot PaO 1408 COUR, TGR) nc cece eeces 11

Middlesex County Ethics Committee v.

Garden State Bar Assoc., 457 U.S. 423 (1982) . 11, 13

Nevada Entertainment Industries v. City

of Henderson, Nevada,

8 F.3d 1348 (9th Cir. 1993)(percuriam) ........ 14

New Orleans Public Service, Inc. v. Council

of City of New Orleans, 491 U.S. 350 (1989) ..... 12

Norfolk & Western Railway Co. v. Public

Utilities Comm'n of Ohio,

926 F.2d 567 (6th Cir. 1991) .............2.0.. 14

Ohio Civil Rights Commission v. Dayton

Christian Schools, Inc., 477 U.S. 619 (1986) . 9, 12, 14

Pennzoil. Co. v. Texaco, 481 U.S. 1 (1987) ...... 13

Polykoff v. Collins, 816 F.2d 1326 (9th Cir. 1987) . 10

Samuels v. Mackell, 401 U.S. 66 (1971) ........ 12

Thomas v. Texas State Board of

Medical Examiners,

Sul Fae Sos CO Ce. ISBT) . wc ccc ccc cen 14

Traughber v. Beauchane,

moib ey Tyee le a. | re 1]

Trust & Investment Advisers, Inc. v. Hogsett,

___ F.3d ___, 1994 WL 706102

(7th Cir. December 19, 1994) ................ 11

United Services Automobile Ass'n v. Muir,

p28 we &- oy i & A | ree ene 11

Younger v. Harris, 401 U.S. 37 (1971) .... 9, passim

Statutes Cited:

es 6 is 6 id dekh ea 7

CE | rer ee 3

SE OE Se ee 3

se FBP REUTEETEEERET TTT 3

Me I ED nw cece ccctvceeesen 3

a EE ee 5

Pee. Cte GEZ-ZOGIe) . wc wc cece ccecns 4,6

i ae Ry | re 3, 4, passim

Phila. Code § 12-2008(Z) .. 0. cece ceees 2, 13

i Ee, ork ceeeeseeveeeus 8

DE SE GROEED 0 oc ccc senseccesen 2, 6

Court Rules Cited:

re ns eh ye de om we 7

supmeme Court Rule 10.1(a) ... 1... cc eeees 14, 15

i ee tke ne eae ee ee 4

NO. 94-982

In The

Supreme Court of The Anited States

October Term 1994

JOHN O'NEILL and SAMUEL R. GOODMAN, on behalf of

themselves and all others similarly situated,

Petitioners,

VS.

CITY OF PHILADELPHIA, PHILADELPHIA PARKING

AUTHORITY, OFFICE OF DIRECTOR OF FINANCE,

BUREAU OF ADMINISTRATIVE ADJUDICATION,

Respondents.

BRIEF OF RESPONDENT CITY OF PHILADELPHIA,

OFFICE OF DIRECTOR OF FINANCE, BUREAU OF

ADMINISTRATIVE ADJUDICATION IN OPPOSITION.

TO A PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT.

COUNTERSTATEMENT OF THE CASE

Respondent! adopts as its Counterstatement of Facts

the summary of events and overview of relevant

administrative procedures of the Bureau of Administrative

Adjudication ("BAA") set forth in the majority opinion of the

1 The Office of the Director of Finance and the Bureau of

Administrative Adjudication are not separate legal entities,

but simply agencies of the City of Philadelphia, which the

District Court found was the only proper defendant. (See

Opinion of District Court, A. 51a, n.1)

Court of Appeals. (A. 6a -12a) We wish to clarify certain

points directly relevant to the issue presented in the present

Petition for Certiorari.

Within the BAA adjudicatory scheme, an initial

decision of a hearing examiner may be appealed to the Parking

Appeals Panel. (A. 7a) The Parking Appeals Panel has the

power to affirm, reverse or modify any determination

appealed from, and may also hear the case de novo. Phila.

Code §12-2808(2). By the terms of the ordinance, the

Appeals Panel "shall have the power to review the facts and

the law, and shall have power to affirm the determination or to

reverse or modify any determination appealed from for error

of fact or law. . ." Phila. Code §12-2808(2)(emphasis added).

Thus, under this section, constitutional challenges to BAA

proceedings can be raised in the context of an administrative

appeal. No Pennsylvania cases exist which prohibit an

administrative agency from considering such questions.

The order of the Parking Appeals Panel constitutes the

final order of the Director of Finance; if no appeal is taken, the

order of the hearing examiner is the final order.2

Judicial review of the BAA's final order is available

by way of an appeal to the Court of Common Pleas of

Philadelphia County pursuant to Pennsylvania's Local Agency

2 Phila. Code § 12-2808(5) states:

“The order of a Parking Appeals Panel shall be the final

order of the Finance Director’s Office. However, in the

event that no appeal is taken, the order of the Parking

Hearing Examiner shall be the final order. If payment is not

made within thirty (30) days after entry of a final order

determining liability for a parking violation and fixing fines,

costs and additional fees for such violation, such fines,

costs and additional fees shall be considered a debt due and

" Owing the City.”

Law, 2 PA.C.S.A. §§ 751-754, and the Judicial Code, 42

Pa.C.S.A. § 933(a)(2).3 On appeal to the Court of Common

Pleas, a defendant clearly has the opportunity to raise the

constitutionality of the proceedings before the BAA.4

Pursuant to the terms of BAA ordinance, any

appeal to the Parking Appeals Panel from a hearing

examiner's determination must be taken within 30 days of

entry of such final determination. Phila. Code §12-2808(3).

By local court rule, a party appealing to the Court of Common

Pleas has 30 days from the date of the adjudication by the

3 Specifically, 2 Pa.C.S.A. § 752 states:

"Any person aggrieved by an adjudication of a local agency

who has a direct interest in such adjudication shall have the

right to appeal therefrom to the court vested with jurisdiction

of such appeals by or pursuant to Title 42 (relating to

judiciary and judicial procedure)."

4 2 PAC.S.A. § 754 provides, in relevant part:

(a) In the event a full and complete record of the

proceedings before the local agency was not made, the court

may hear the appeal de novo, or may remand .. . for the

purpose of making a full and complete record. . .

(b) In the event a full and complete record of the

proceedings before the local agency was made, the court shall

hear the appeal without a jury on the record certified by the

agency. After hearing the court shall affirm the adjudication

unless it shall find that the adjudication is in violation of the

constitutional rights of the appellant, or is not in accordance

with law...

agency within which to file an appeal.5

A final BAA ozder assessing fines is not a judgment

against the violator, but merely a debt owed to the City. Phila.

Code §12-2808(S5). (A. 7a) This is true regardless of whether

the final order results from a default because of failure to

request a hearing, or from a determination of liability after a

hearing or after an administrative appeal. In order to collect the

debt, the City must proceed to a court of appropriate

jurisdiction to obtain an enforceable judgment.

Enactment of the Ordinance created a period of dual

jurisdiction. Phila. Code § 12-2807(8). (A. 8a) A person

who had received a parking ticket, citation or summons from

the Traffic Court between October 2, 1987 and June 1, 1989,

could choose to proceed either in Traffic Court or the BAA.

In Traffic Court, a defendant was entitled to three

rights not provided in a BAA hearing: a disposition could not

be made without the personal appearance of the defendant; the

defendant’s guilt-had to proved beyond a reasonable doubt;

and, because parking violations are summary offenses, they

5 Phila. Civ. R. 320(D), states:

"(D) Time for Appeal. An appeal shall be filed not later

than thirty days after the date of the adjudication by the

agency unless otherwise provided by statute or ordinance.

The date of the adjudication shall be the date of mailing of

the notice of adjudication by the agency, which date shall be

separately and clearly designated on such notice." [Footnote

omitted]

6 June 1, 1989 is the effective date of the ordinance which

established the BAA. The reason for the October 2, 1987 date

is that individuals with tickets issued prior to that date were

automatically eliminated from the computer system because

they presumptively qualified for the two year statute of

limitations defense applicable in Traffic Court. (A. 54a, n.2)

were subject to the two year statute of limitations contained in

42 Pa.C.S.A. § 5553(e).

Petitioners Goodman and O’Neill each received

parking tickets before the effective date of the Ordinance.

(District Court's Opinion, A. 54a) Neither Petitioner paid the

fines, and the Traffic Court lodged an information and issued

a summons. (A. 55a) A summons was served on each, stating

the fines and penalties for the offense, with a notice to appear

in Traffic Court on a date certain. Neither Goodman nor

O’Neill appeared for the scheduled hearing, and the Traffic

Court periodically sent notices to them seeking payment. (A.

55a)

In November of 1989, Goodman and O’Neill each

received a “Violation Warning Notice” from the Office of the

Director of Finance. This notice informed them that they could

elect to appear before the Traffic Court or proceed in the BAA,

and informed them that the former proceeding would be

treated as a criminal matter whereas the BAA proceeding

would be a civil action. Goodman and O’ Neill took no action

in response to this notice.

On March 4, 1991, Goodman requested a hearing

before the BAA to adjudicate a ticket he received on February

4, 1991. At the hearing, the BAA listed for disposition four

additional tickets for violations that had occurred before June

1, 1989. Counsel for Goodman appeared at the hearing and

objected to including these pre-June 1, 1989 tickets in the

proceedings, on the basis that they were within the Traffic

Court’s exclusive jurisdiction and that Goodman had not

consented to the BAA’s jurisdiction. Moreover, Goodman’s

counsel raised the statute of limitations defense as to all tickets

that were more than two years old.

On the date of Goodman’s hearing (March 18, 1991),

a “Code 41” disposition was available in BAA proceedings

which, when requested, would have required the hearing

examiner to refrain from making any disposition of parking

tickets which Goodman refused to submit to the Director of

Finance’s jurisdiction. The provision for a Code 41

disposition is consistent with § 12-2807(8) of the Ordinance,

which states that a party may elect to have violations originally

subject to Traffic Court jurisdiction heard by the BAA.

The hearing examiner overruled Goodman’s

objections, apparently holding that the BAA had jurisdiction

regardless of consent, and that the statute of limitations only

applied in Traffic Court where parking violations were treated

as criminal offenses. The Hearing Examiner determined

liability, and assessed a total fine of $247.00, which included

$173.00 for tickets issued before June 1, 1989. Goodman

has paid his fines.

When Petitioner O’ Neill tried to have three pre-June 1,

1989 parking tickets listed for disposition in Traffic Court in

April of 1991, the court informed him that it no longer heard

parking violation cases. Subsequently, O’ Neill requested a

hearing, which the BAA scheduled for August 30, 1991.

O’Neill attended the hearing with counsel, raised the same

objections as Goodman, and experienced the same lack of

success. The Hearing Examiner determined liability, and

reduced the assessment of fines to $45.00. To date, O’ Neill

has not paid any of his fines. The same Code 41 disposition

which was available in Goodman’s case was also available to

O'Neill.

Neither Goodman nor O'Neill ever appealed to the

Parking Appeals Panel or to the Court of Common Pleas.

As noted above, a default or a finding of liability by a

BAA hearing examiner or the Parking Appeals Panel does not

result in a judgment against the offender, but is only

considered a debt due the City. Phila. Code §12-2808(5). (A.

7a) It is undisputed that no judgments were ever entered

against either Petitioner, and that their vehicles were never

towed or immobilized as a result of any of the violations or

proceedings at issue in this case.

Respondent disagrees with Petitioners’ statement to

the effect that the Director of Finance transferred all traffic

tickets issued out of Traffic Court prior to June 1, 1989 into

the jurisdiction of the BAA, and that such tickets were

"transposed into a mature debt... to the City of

Philadelphia." (Petition for Certiorari, p. 4). On the contrary,

these Petitioners were afforded an opportunity for hearing on

their pre-June 1, 1989 tickets before the BAA. At that hearing,

they had the opportunity to raise the statute of limitations

defense, as well as the opportunity to object to BAA

jurisdiction by invoking the Code 41 procedure. In the event

the BAA Hearing Examiner or Parking Appeals Panel rejected

these defenses, Petitioners had full opportunity for judicial

review. Finally, any further collection effort could not have

proceeded on the basis of a final order of the BAA, but would

have required a judgment against Petitioners from a state

court.

Petitioners commenced this action on October 30,

1991 in the United States District Court for the Eastern District

of Pennsylvania under 42 USC § 1983, seeking declaratory

and injunctive relief, and monetary damages, for alleged

deprivation of their constitutional rights. On January 6, 1992,

one of the defendants, the Philadelphia Parking Authority,

was dismissed from the case with prejudice pursuant to a

motion under Fed. R. Civ. P. 12(b)(6). Thereafter,

Petitioners were granted leave to amend their Complaint. The

case proceeded on the basis of their Second Amended

Complaint.

In their prayer for relief before the District Court,

Petitioners asked that the BAA ordinance be declared void to

the extent that it conferred jurisdiction upon the BAA; that all

BAA hearings on parking violations occurring prior to March

22, 1989 and all liability imposed thereon, be declared void;

that defendants be enjoined from conducting hearings or

collecting fines for parking violations which occurred prior to

March 22, 1989; and that the City be ordered to refund all

fines, costs and fees collected as a result of the allegedly void

proceedings. Thus the relief sought by Goodman and O'Neill

in federal court constituted a direct attack on the results of the

BAA's adjudications against these Petitioners.

On the date the federal suit was commenced, the time

for Petitioner Goodman to file an appeal to the Parking

Appeals Panel or the Court of Common Pleas had expired.

Goodman, of course, had chosen to pay the amount assessed

against him. O'Neill, on the other hand, may have been within

the time for appealing to state court on the date the federal

action was commenced.7 In any event, no such appeal was

ever filed.

Abstention was properly raised in the City’s Answer

to Plaintiffs’ Second Amended Complaint and in the City’s

Motion for Summary Judgment. The subsequent proceedings

in the District Court and the Court of Appeals are clear from

the Opinions of those courts.

7 A defendant has thirty days from entry of a hearing

examiner's determination to appeal to the Parking

Appeals Panel. Phila. Code §12-2808(3). Failure to

appeal renders the order final. Thereafter, the defendant

has thirty days from the date of mailing of a notice of

adjudication to appeal to the Court of Common Pleas.

Supra, atn. 5.

It is unclear from the record when the hearing

examiner's determination was entered in O'Neill's case,

and it may have been after the August 30, 1991 hearing.

It is also possible that the mailing date of the notice of

adjudication may have extended the period for appealing

to state court for a few days. Both of these factors may

have combined to extend the date for filing a state court

appeal until shortly after the date the federal suit was

filed (October 30, 1991).

SUMMARY OF ARGUMENT

In reaching its decsion that the District Court should

have abstained under Younger v. Harris, the U.S. Court of ©

Appeals for the Third Circuit utilized an abuse of discretion

standard of review. This standard conflicts with the de novo

standard of review for Younger abstention used by the Sixth,

Seventh and Ninth Circuits.

Nevertheless, the Court of Appeals’ reversal of the

District Court pursuant to Younger was correct under the

applicable decisions of this Court, particularly under Ohio

Civil Rights Commission v. Dayton Christian Schools, Inc.,

477 U.S. 619 (1986).

However, the precise question of whether a state

proceeding is pending for Younger purposes where state

administrative proceedings had taken place, but were

discontinued without state administrative or judicial review

which would have afforded plaintiffs the chance to raise their

constitutional claims, has not been decided by this Court, and

has produced conflicting answers among the circuits.

10 |

ARGUMENT

I. THE STANDARD BY WHICH THE COURT OF

APPEALS REVIEWED THE DISTRICT COURT'S '

REFUSAL TO ABSTAIN WAS INCORRECT, AND IN

CONFLICT WITH THE STANDARD OF REVIEW

APPLIED IN OTHER CIRCUITS.

Respondent believes that it is appropriate to call

attention to an issue which is fairly encompassed within the

Petitioners’ Question Presented for Review, but which was

not expressly stated by Petitioners. This question is whether

a district court's decision to abstain under Younger should be

reviewed by a court of appeals under a de novo standard of

review, or for abuse of discretion. This question is closely

connected with the question presented by Petitioners.

Furthermore, it is a question that it has not previously been

decided by this Court, and which has generated conflicting

answers by different courts of appeals.

In reviewing the District Court's judgment, the Court

of Appeals for the Third Circuit applied a two-part standard

of review:

"We exercise plenary review over the legal

determinations of whether the requirements for

abstention have been met. [Citations omitted.] Once

we determine that the requirements have been met, we

review a district court's decision to abstain under

Younger abstention principles for abuse of discretion."

Gwynedd Properties, Inc. vy Lower Gwynedd

Township, 970 F.2d 1195, 1199 (3d Cir. 1992).

(A. 13a)

This standard of review is directly contrary to that

used by the Ninth Circuit, which reviews a district court's

refusal to abstain under a de novo standard. Fresh

International Corp. v. Agricultural Labor Relations Bd., 805

F.2d 1353, 1356 and n. 2 (9th Cir. 1986); Polykoff v.

Collins, 816 F.2d 1326, 1332 (9th Cir. 1987); Beltran v.

———xee

State of California, 871 F.2d 777, 781 (9th Cir. 1988). The

Third Circuit's standard of review is also at odds with the

decisions of the Sixth and Seventh Circuits, which review a

district court's decision to abstain de novo. Traughber v.

Beauchane, 760 F.2d 673 (6th Cir. 1985); Trust &

Investment Advisers, Inc. v. Hogsett, _'. F.3d __, 1994

WL 706102 (7th Cir. December 19, 1994)(reviewing the

cases and noting the conflict among the circuits).

We submit that the Ninth Circuit rule is correct. This

Court has stated that where the prerequisites for abstention

under Younger are satisfied, a district court is required to

abstain absent evidence of bad faith, harassment, patent

invalidity of a state statute or other extraordinary

circumstances. Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800, 816 n. 22 (1976); Middlesex

County Ethics Committee v. Garden State Bar Assoc., 457

U.S. 423, 432 (1982). Accordingly, in Fresh International

Corp., the court held that while an abuse of discretion

standard may be appropriate for other forms of abstention, it

is not suitable for review of Younger claims because a district

court has no discretion to issue an injunction in such cases.

Fresh International Corp., 805 F.2d at 1356 n. 2.

As noted in Fresh International Corp., cases using the

abuse of discretion standard generally involve abstention

claims brought under a variety of different theories besides

Younger. Fresh International Corp., 805 F.2d at 1356 n. 2.

Such cases seem to be the origin of the Third Circuit rule. See

Kentucky West Virginia Gas Co. v. Pennsylvania Public

Utility Comm'n, 791 F.2d 1111, 1115 (3d Cir.

1986)(reviewing claims of Burford and Younger abstention

under an abuse of discretion standard of review); United

Services Automobile Ass'n v. Muir, 792 F.2d 356 (3d Cir.

1986)(reviewing Burford, Pullman and Younger claims

under a single abuse of discretion standard).

Arguably Hawaii Housing Authority v. Midkiff, 467

U.S. 229 (1984) supports an abuse of discretion standard of

review. ("We begin with the question whether the District

Court abused its discretion in not abstaining from the exercise

of its jurisdiction." Jd. at 236) But Midkiff involved both

Younger and Pullman abstention, and disposed of the

Younger claim not under an abuse of discretion standard, but

by deciding that an essential predicate for abstention, the

pendency of state judicial proceedings, was not present. Jd. at

237-38. This amounted to a determination that the lower court

erred as a matter of law, not that it abused its discretion.

Il. THE COURT OF APPEALS' DECISION THAT

ABSTENTION WAS PROPER UNDER THE FACTS OF

THIS CASE IS CONSISTENT WITH THE DECISIONS

OF THIS COURT. HOWEVER, THERE EXISTS A

CONFLICT AMONG THE CIRCUITS ON THIS ISSUE.

The precise question on which certiorari is sought is

whether the District Court erred in refusing to abstain where

state administrative proceedings, implicating an important

state interest, were discontinued without state judicial or

administrative review, and where Petitioners’ constitutional

claims could have been raised in the course of such

administrative or judicial review. This question has been

recognized, but not squarely addressed, by this Court. New

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

Orleans, 491 U.S. 350, 369 n. 4 (1989)

The Court of Appeals found while the BAA

proceedings had terminated without the involvement of any

state court, that fact did not reduce the state's interest in the

proceedings to the extent that abstention under Younger was

improper. Despite the forceful dissent of the Honorable

Timothy K. Lewis, we submit that the decision of the Court

of Appeals was consistent with the principles stated by this

Court concerning federal abstention from interference with

state proceedings.

Although Younger involved an injunction against a

pending state criminal proceeding, it has been extended to

federal actions seeking declaratory relief. See Samuels v.

Mackell, 401 U.S. 66 (1971). Furthermore, Huffman vy.

Pursue, Ltd., 420 U.S. 592 (1975) has extended Younger to

i eeraiieereneenneneneeamnenmemntnae

require abstention where the state proceedings, although civil

in nature, are closely akin to criminal proceedings. This has

been held to include nuisance actions (Huffman),

professional disciplinary actions (Middlesex County Ethics

Committee, 457 U.S. 423 (1982)), and contempt

proceedings (Juidice v. Vail, 430 U.S. 327 (1977)).

This Court has stated that Younger abstention is fully

applicable even where state judicial proceedings have

terminated prior to commencement of the federal action, if the

federal plaintiff failed to exhaust available state court appellate

remedies. Huffman, 420 U.S. 607-611 and n.22.

That the principles of Younger apply to state

administrative proceedings was established in Middlesex

County Ethics Committee and Ohio Civil Rights Commission

v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986).

Indeed, Dayton established that it is sufficient for abstention

purposes that a plaintiff’s constitutional claims can be raised

in State judicial review of an administrative proceeding, even

if they might not properly be raised in the administrative

proceeding itself. Dayton, 477 U.S. at 629.

In essence, the only distinguishing feature of this case,

and the central point argued in Judge Lewis’ dissent, is that

the state proceedings in this case were at an end. This is true,

but it cannot be the basis for holding that Younger does not

apply. The termination of state proceedings is the result of

Petitioners’ own failure to avail themselves of the

Opportunities for state administrative and judicial review.

Such opportunities existed under the BAA ordinance (Phila.

Code §12-2808(2)), and under 2 PA.C.S.A. §§ 751-754. It is

clear that in light of Petitioners' own refusal to appeal, it must

be presumed that the state appellate process afforded them full

and fair opportunity to present their federal constitutional

claims. Pennzoil. Co. v. Texaco, 481 U.S. 1, 15 (1987).

The Court of Appeals clearly believed that the state's

interest in regulation of on-street parking and the adjudication

of violations was important. (A. 19a) Indeed, the Court noted

that violations were previously treated as criminal offenses.

(A. 19a, n.15) If the state's interest in the subject matter of

the BAA proceedings is important enough to warrant

abstention while those proceedings are actually pending,

which would be the result under Dayton, that result should

not change because the proceedings are terminated, especially

when they were ended by the voluntary choice of the

Petitioners to commence action in federal court.

We believe that the Court of Appeals decision is

correct and follows directly from this Court's decisions, but it

is impossible to deny that there is a serious conflict among the

circuits on the question presented for review. Compare

Allegheny Corp. v. Pomeroy, 898 F.2d 1314 (8th Cir.

1990), Allegheny Corp. v. McCartney, 896 F.2d 1138 (8th

Cir. 1990), and Nevada Entertainment Industries v. City of

Henderson, 8 F.3d 1348 (9th Cir. 1993)(per curiam), all of

which are consistent with the Third Circuit's decision in this

case, with Thomas v. Texas State Board of Medical

Examiners, 807 F.2d 453 (Sth Cir. 1987) and Norfolk &

Western Railway Co. v. Public Utilities Comm'n of Ohio,

926 F.2d 567 (6th Cir. 1991), holding that abstention was

improper once state administrative proceedings were at an

end. We therefore concede that this case appears to satisfy

one of the considerations which are relevant to the exercise of

the Court's discretion to grant certiorari. Supreme Court Rule

10.1(a).

CONCLUSION

Respondent believes that the Court of Appeals for the

Third Circuit has decided the abstention question correctly

under the applicable decisions of this Court. See Supreme

Court Rule 10.1(c). Respondent concedes that the Court of

Appeals’ decision is in conflict with the decisions of other

circuits on the same question, and that this question has not

been directly determined by this Court. See Supreme Court

Rule 10.1(a) & (c). Finally, Respondent takes no position on

whether the Court of Appeals "has decided an important

question of federal law which . . . should be decided by this

Court." See Supreme Court Rule 10.1(c).

Respectfully submitted,