Federal Court Non-Interference with State Jurisdiction: Overview

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Abstention

Perhaps the fullest expression of the concept of comity may be found in the abstention doctrine.1 Footnote
For a definition and discussion of comity, see supra ArtIII.S1.1.1.2.3.1 Federal—State Court Relations: Overview. The abstention doctrine instructs federal courts to abstain from exercising jurisdiction if applicable state law, which would be dispositive to the controversy, is unclear and a state court's interpretation of the state law might make resolving a federal constitutional issue unnecessary.2 Footnote
C. Wright , Handbook of the Law of Federal Courts 13 (4th ed. 1983) . The basic doctrine was formulated by Justice Frankfurter for the Court in Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941) . Another feature of the doctrine is that a federal court should refrain from exercising jurisdiction in order to avoid needless conflict with a state's administration of its own affairs, Burford v. Sun Oil Co., 319 U.S. 315 (1943) ; Alabama Public Service Comm’n v. Southern Ry., 341 U.S. 341 (1951) ; Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943) ; Martin v. Creasy, 360 U.S. 219 (1959) ; Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) ; New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350 (1989) (carefully reviewing the scope of the doctrine), especially where state law is unsettled. Meredith v. City of Winter Haven, 320 U.S. 228 (1943) ; County of Allegheny v. Frank Mashuda Co., 360 U.S. 185 (1959) ; Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959) . See also Clay v. Sun Insurance Office Ltd., 363 U.S. 207 (1960) . Also, although the sole fact that an action is pending in state court will not ordinarily cause a federal court to abstain, there are “exceptional” circumstances in which it should. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) ; Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978) ; Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983) . But, in Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996) , an exercise in Burford abstention, the Court held that federal courts have power to dismiss or remand cases based on abstention principles only where relief being sought is equitable or otherwise discretionary but may not do so in common-law actions for damages. Abstention is not proper, however, where the relevant state law is settled,3 Footnote
City of Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958) ; Zwickler v. Koota, 389 U.S. 241, 249–51 (1967) . See Babbitt v. United Farm Workers Nat’l. Union, 442 U.S. 289, 306 (1979) (quoting Harman v. Forssenius, 380 U.S. 528, 534–35 (1965) ). or where it is clear that the state statute or action challenged is unconstitutional no matter how the state court construes state law.4 Footnote
Harman v. Forssenius, 380 U.S. 528, 534–35 (1965) ; Babbitt v. United Farm Workers Nat’l., 442 U.S. 289, 305–12 (1979) . Abstention is not proper simply to afford a state court the opportunity to hold that a state law violates the federal Constitution. Wisconsin v. Constantineau, 400 U.S. 433 (1971) ; Zablocki v. Redhail, 434 U.S. 374, 379 n.5 (1978) ; Douglas v. Seacoast Products, Inc., 431 U.S. 265, 271 n.4 (1977) ; City of Houston v. Hill, 482 U.S. 451 (1987) ( “A federal court may not properly ask a state court if it would care in effect to rewrite a statute” ). But if the statute is clear and there is a reasonable possibility that the state court would find it in violation of a distinct or specialized state constitutional provision, abstention may be proper, Harris County Comm'rs Court v. Moore, 420 U.S. 77 (1975) ; Reetz v. Bozanich, 397 U.S. 82 (1970) , although not if the state and federal constitutional provisions are alike. Examining Bd. v. Flores de Otero, 426 U.S. 572, 598 (1976) . Federal jurisdiction is not ousted by abstention; rather it is postponed.5 Footnote
American Trial Lawyers Ass'n v. New Jersey Supreme Court, 409 U.S. 467, 469 (1973) ; Harrison v. NAACP, 360 U.S. 167 (1959) . Dismissal may be necessary if the state court will not accept jurisdiction while the case is pending in federal court. Harris County Comm'rs v. Moore, 420 U.S. 77, 88 n.14 (1975) . The Supreme Court has said that abstention can serve interests of federal-state comity by avoiding “a result in ‘needless friction with state policies,’” 6 Footnote
La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 33 (1959) (quoting R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941) ). and can spare “the federal courts of unnecessary constitutional adjudication.” 7 Footnote
Harrison v. NAACP, 360 U.S. 167, 177 (1959) .

During the 1960s, the Supreme Court disfavored the abstention doctrine, rejecting it in numerous cases, most of which concerned civil rights and civil liberties.8 Footnote
McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963) ; Griffin v. School Board, 377 U.S. 218 (1964) ; Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324 (1964) ; Baggett v. Bullitt, 377 U.S. 360 (1964) ; Davis v. Mann, 377 U.S. 678 (1964) ; Dombrowski v. Pfister, 380 U.S. 479 (1965) ; Harman v. Forssenius, 380 U.S. 528 (1965) ; Zwickler v. Koota, 389 U.S. 241 (1967) ; Wisconsin v. Constanineau, 400 U.S. 433 (1971) . The Court cited time-consuming delays9 Footnote
England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 426 (1964) (Justice Douglas concurring). See C. Wright , Handbook of the Law of Federal Courts 305 (4th ed. 1983) . and piecemeal resolution of important questions10 Footnote
Baggett v. Bullitt, 377 U.S. 360, 378–379 (1964) . as too-costly consequences of the doctrine. In addition to actions brought under civil rights statutes,11 Footnote
Compare Harrison v. NAACP, 360 U.S. 167 (1959) , with McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963) . the Court, for a while, appeared to shelter cases involving First Amendment expression guarantees from the absention doctrine, but this is no longer the rule.12 Footnote
Compare Baggett v. Bullitt, 377 U.S. 360 (1964) , and Dombrowski v. Pfister, 380 U.S. 479 (1965) , with Younger v. Harris, 401 U.S. 37 (1971) , and Samuels v. Mackell, 401 U.S. 66 (1971) . See Babbitt v. United Farm Workers, 442 U.S. 289, 305–312 (1979) . Younger v. Harris 13 Footnote
401 U.S. 37 (1971) . There is room to argue whether the Younger line of cases represents the abstention doctrine at all, but the Court continues to refer to it in those terms. E.g., Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) ; Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. ___, No. 12-815, slip op. (2013) . and its progeny signaled a trend toward the Court applying the absention doctrine more robustly.

As an alternative to abstention, the Supreme Court has sometimes encouraged or required lower federal courts to use certification procedures where they are available.14 Footnote
E.g., Mckesson v. Doe , No. 19-1108, slip op. at 5 (U.S. Nov. 2, 2020) ; Bellotti v. Baird, 428 U.S. 132, 151 (1976); Lehman Brothers v. Schein, 416 U.S. 386, 390–91 (1974); Clay v. Sun Insurance Office Ltd., 363 U.S. 207, 212 (1960). While this process is not grounded in the federal constitution, certification may allow federal courts to avoid relying on the abstention doctrine. Most states have adopted rules that allow federal courts to “certify,” or refer, unsettled questions of state law to state courts.15 Footnote
See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 79 (1997) (describing certification and concluding that a federal appeals court erred when it “blend[ed]” the abstention inquiry with the certification inquiry). The Court has sometimes required lower federal courts to certify to state courts questions which concern “novel issues of state law peculiarly calling for the exercise of judgment by the state courts,” and involve construing a state law that is being challenged as unconstitutional.16 Footnote
Mckesson , slip op. at 4–5 ; see also Arizonans for Official English , 520 U.S. at 79 . The Court has also noted that certification may be appropriate where abstention would lead to undue “delay and expense” —although such concerns may not be sufficient to require a federal court to employ certification rather than abstention.17 Footnote
Houston v. Hill, 482 U.S. 451, 470–71 (1987) . Cf., e.g., Expressions Hair Design v. Schneiderman , No. 15-1391, slip op. at 6–10 (U.S. Mar. 29, 2017) (Sotomayor, J., concurring) (comparing abstention with certification, and concluding that the lower court abused its discretion when it decided not to certify and instead “chose a convoluted course” by abstaining in part and deciding the question in part).

Footnotes 1 For a definition and discussion of comity, see supra ArtIII.S1.1.1.2.3.1 Federal—State Court Relations: Overview. 2 C. Wright , Handbook of the Law of Federal Courts 13 (4th ed. 1983) . The basic doctrine was formulated by Justice Frankfurter for the Court in Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941) . Another feature of the doctrine is that a federal court should refrain from exercising jurisdiction in order to avoid needless conflict with a state's administration of its own affairs, Burford v. Sun Oil Co., 319 U.S. 315 (1943) ; Alabama Public Service Comm’n v. Southern Ry., 341 U.S. 341 (1951) ; Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943) ; Martin v. Creasy, 360 U.S. 219 (1959) ; Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) ; New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350 (1989) (carefully reviewing the scope of the doctrine), especially where state law is unsettled. Meredith v. City of Winter Haven, 320 U.S. 228 (1943) ; County of Allegheny v. Frank Mashuda Co., 360 U.S. 185 (1959) ; Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959) . See also Clay v. Sun Insurance Office Ltd., 363 U.S. 207 (1960) . Also, although the sole fact that an action is pending in state court will not ordinarily cause a federal court to abstain, there are “exceptional” circumstances in which it should. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) ; Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978) ; Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983) . But, in Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996) , an exercise in Burford abstention, the Court held that federal courts have power to dismiss or remand cases based on abstention principles only where relief being sought is equitable or otherwise discretionary but may not do so in common-law actions for damages. 3 City of Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958) ; Zwickler v. Koota, 389 U.S. 241, 249–51 (1967) . See Babbitt v. United Farm Workers Nat’l. Union, 442 U.S. 289, 306 (1979) (quoting Harman v. Forssenius, 380 U.S. 528, 534–35 (1965) ). 4 Harman v. Forssenius, 380 U.S. 528, 534–35 (1965) ; Babbitt v. United Farm Workers Nat’l., 442 U.S. 289, 305–12 (1979) . Abstention is not proper simply to afford a state court the opportunity to hold that a state law violates the federal Constitution. Wisconsin v. Constantineau, 400 U.S. 433 (1971) ; Zablocki v. Redhail, 434 U.S. 374, 379 n.5 (1978) ; Douglas v. Seacoast Products, Inc., 431 U.S. 265, 271 n.4 (1977) ; City of Houston v. Hill, 482 U.S. 451 (1987) ( “A federal court may not properly ask a state court if it would care in effect to rewrite a statute” ). But if the statute is clear and there is a reasonable possibility that the state court would find it in violation of a distinct or specialized state constitutional provision, abstention may be proper, Harris County Comm'rs Court v. Moore, 420 U.S. 77 (1975) ; Reetz v. Bozanich, 397 U.S. 82 (1970) , although not if the state and federal constitutional provisions are alike. Examining Bd. v. Flores de Otero, 426 U.S. 572, 598 (1976) . 5 American Trial Lawyers Ass'n v. New Jersey Supreme Court, 409 U.S. 467, 469 (1973) ; Harrison v. NAACP, 360 U.S. 167 (1959) . Dismissal may be necessary if the state court will not accept jurisdiction while the case is pending in federal court. Harris County Comm'rs v. Moore, 420 U.S. 77, 88 n.14 (1975) . 6 La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 33 (1959) (quoting R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941) ). 7 Harrison v. NAACP, 360 U.S. 167, 177 (1959) . 8 McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963) ; Griffin v. School Board, 377 U.S. 218 (1964) ; Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324 (1964) ; Baggett v. Bullitt, 377 U.S. 360 (1964) ; Davis v. Mann, 377 U.S. 678 (1964) ; Dombrowski v. Pfister, 380 U.S. 479 (1965) ; Harman v. Forssenius, 380 U.S. 528 (1965) ; Zwickler v. Koota, 389 U.S. 241 (1967) ; Wisconsin v. Constanineau, 400 U.S. 433 (1971) . 9 England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 426 (1964) (Justice Douglas concurring). See C. Wright , Handbook of the Law of Federal Courts 305 (4th ed. 1983) . 10 Baggett v. Bullitt, 377 U.S. 360, 378–379 (1964) . 11 Compare Harrison v. NAACP, 360 U.S. 167 (1959) , with McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963) . 12 Compare Baggett v. Bullitt, 377 U.S. 360 (1964) , and Dombrowski v. Pfister, 380 U.S. 479 (1965) , with Younger v. Harris, 401 U.S. 37 (1971) , and Samuels v. Mackell, 401 U.S. 66 (1971) . See Babbitt v. United Farm Workers, 442 U.S. 289, 305–312 (1979) . 13 401 U.S. 37 (1971) . There is room to argue whether the Younger line of cases represents the abstention doctrine at all, but the Court continues to refer to it in those terms. E.g., Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) ; Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. ___, No. 12-815, slip op. (2013) . 14 E.g., Mckesson v. Doe , No. 19-1108, slip op. at 5 (U.S. Nov. 2, 2020) ; Bellotti v. Baird, 428 U.S. 132, 151 (1976); Lehman Brothers v. Schein, 416 U.S. 386, 390–91 (1974); Clay v. Sun Insurance Office Ltd., 363 U.S. 207, 212 (1960). 15 See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 79 (1997) (describing certification and concluding that a federal appeals court erred when it “blend[ed]” the abstention inquiry with the certification inquiry). 16 Mckesson , slip op. at 4–5 ; see also Arizonans for Official English , 520 U.S. at 79 . 17 Houston v. Hill, 482 U.S. 451, 470–71 (1987) . Cf., e.g., Expressions Hair Design v. Schneiderman , No. 15-1391, slip op. at 6–10 (U.S. Mar. 29, 2017) (Sotomayor, J., concurring) (comparing abstention with certification, and concluding that the lower court abused its discretion when it decided not to certify and instead “chose a convoluted course” by abstaining in part and deciding the question in part).

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