University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOLUME 122 MAY 1974 NUMBER 5 ABSTENTION IN CONSTITUTIONAL CASES: THE SCOPE OF THE PULLMAN ABSTENTION DOCTRINE MARTHA A. FIELDt TABLE OF CONTENTS INTRODUCTION ............................................................. 1074 I. THE BACKGROUND OF THE PULLMAN DOCTRINE ...... 1074 II. THE PULLMAN CASE ................................................. 1077 III. THE ENGLAND PROCEDURE ....................................... 1078 PART ONE: THE CASES IN WHICH PULLMAN ABSTENTION IS PROPER ......................................... 1080 I. ALLOWING STATE- COURTS TO RULE ON FEDERAL CONSTITUTIONAL ISSUES-AN IMPROPER PURPOSE FOR ABSTENTION ..................................................... 1080 II. ALLOWING STATE COURTS TO DECIDE STATE ISSUES -A PROPER PURPOSE IN SOME INSTANCES ............. 1084 t Associate Professor of Law, University of Pennsylvania. A.B. 1965, Radcliffe College; J.D. 1968, University of Chicago Law School. Member, District of Columbia Bar. I wish to express my appreciation to Ms. Susie Millman for her extensive assis- tance with this article. 1072 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 122:1071 A. The Advantages of Abstainingfor State Court De- cision of State Issues and Its Costs ...................... 1084 B. The Proper Application of Existing Requirements That State Law Be Unclear and Be Susceptible to an Interpretation That Will Avoid a FederalCon- stitutional Question ............................................ 1090 1. The Importance of a Significant Lack of Clarity in the State Law Issue .................. 1090 2. An Analysis of the Reasons for Abstain- ing for State Court Decision of Unclear State Issues ................................................ 1093 a. Avoiding Interference With a Legitimate State Program ....................................... 1093 b. Avoiding Unnecessary Decision of Federal Constitutional Issues .............................. 1096 3. The Operation of These Policies in "Au- thorization Cases" .. .................................. 1101 a. The Importance of Identifying the Policy That Abstention Will Serve in the Partic- ular Case .............................................. 1102 b. Cases in Which Abstention Serves to Avoid Disruptinga Legitimate State Program ... 1104 c. Cases in Which Abstention Serves to Avoid Unnecessary Federal Constitutional Ad- judication .............................................. 1105 d. Cases Involving Clear and Nonsensitive Federal Constitutional Questions ............ 1106 4. The Justification for Requiring Federal Decision of the State Law Issue Prior to the Abstention Decision ........................... 1108 5. The Application of the Abstention Prin- ciples to "Construction Cases" . ................ 1111 a. The Need to Decide the State Law Issue Prior to the FederalIssue ....................... 1112 b. The Interaction of the Abstention Policies in Construction Cases ............................ 1113 c. Abstention in Cases of Clear Federal Un- constitutionality to Allow the State to Save Its Program ............................... *........... 1117 d. The State's Ability to Correct Some Er- roneous Decisions Through Administrative A ction ................................................... 1118 1974] ABS4TENTION IN CONSTITUTIONAL CASES 6. The Application of the Abstention Pol- icies in Cases Apparently Involving Con- struction in Which Conduct Under Au- thority of the Ambiguous Provision Is A lso at Issue .............................................. 1121 7. Summary of Suggested Rules for Apply- ing Current Requirements That State Law Be Unclear and That It Be Suscep- tible to an Interpretation That Would Avoid a Federal Constitutional Question 1126 a. Authorization Cases ............................... 1126 b. Construction Cases ................................. 1128 c. Construction Cases in Which Conduct Under the Ambiguous Enactment Is Also at Issue ................................................. 1129 C. A Countervailing Factor-The Relevance of a Public Interest in Swift Adjudication of the Fed- eral ConstitutionalIssue ..................................... 1129 D. Conclusion RegardingProposed Application of Ex- isting Factors Relating to Unclear State Law and the Nature of the Federal ConstitutionalIssue ..... 1134 E. A Proposal to Abandon the Requirement That the Case Must Contain a Federal Constitutional Issue 1136 F. Possible Additional Pullman Requirements ......... 1138 1. A Requirement That the Suit Be One to Enjoin State Action ................................... 1138 2. The State's Consent as a Precondition of A bstention ................................................. 1143 a. A Requirement That State Officials Con- sent to Abstaining in the ParticularCase 1143 b. A Requirement of Adequate State Rem- edies ...................................................... 1144 PART TWO: THE RELATION OF PULLMAN ABSTENTION TO OTHER TYPES OF ABSTENT ION ............................................................... 1147 I. "THIBODAUX ABSTENTION" . ..................................... 1148 II. ADMINISTRATIVE ABSTENTION ............................... 1153 III. THE DOMBROWSKI-YOUNGER LINE OF CASES ......... 1163 1074 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 122:1071 INTRODUCTION I. THE BACKGROUND OF THE PULLMAN DOCTRINE The eleventh amendment to the United States Constitution provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, com- menced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.... Though the amendment does not in terms so state, it has been established that states are similarly protected against suits by their own citizens.' Moreover the protection extends beyond suits against states as such to cover actions in which persons acting as state officials are named as defendants. 2 Thus it would appear that individual litigants may never sue a state without its consent. In 1908, however, in Ex parte Young,3 the Supreme Court severely qualified this protection 4 by holding that a suit against a state officer alleged to be acting unconstitutionally. is not a suit against the state. Its "reasoning" was that a state official cannot be acting on behalf of the state when he acts unconsti- tutionally.5 The same rationale would seem to exempt the I Hans v. Louisiana, 134 U.S. 1 (1890). 2 Governor of Ga. v. Madrazo, 26 U.S. (1 Pet.) 110, 122-23 (1828) (Marshall, C.J.). Chief Justice Marshall had earlier held that the eleventh amendment protects the state only when the state is the named defendant, Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 846, 857 (1824), but his position in Madrazo, appar- ently altering that aspect of Osborn, has since been settled doctrine. The amend- ment would be of little avail if it did not apply to suits against state officials. The case law is less than clear, however, on when an individual acts as a state official and when he acts in his private capacity. See, e.g., Georgia R.R. v. Redwine, 342 U.S. 299 (1952); In re Ayers, 123 U.S. 443 (1887). 3 209 U.S. 123 (1908). " Although Young is the case that has come to symbolize the doctrine, there were earlier cases tending in the same direction. See, e.g., Prout v. Starr, 188 U.S. 537 (1-903); Smyth v. Ames, 169 U.S. 466 (1898); Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362 (1894). 5 In Ex parte Young the Court said: [T]he use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in 1974] ABSTENTION IN CONSTITUTIONAL CASES states from the prohibitions of the fourteenth amendment and 6 other constitutional provisions regulating only state action. Nevertheless, the Court has held that acts of state officials can violate those constitutional provisions as acts of the state.7 The tw6 doctrines in combination enabled individual lit- igants to question the constitutionality of state actions in fed- eral court, even where the state had not consented to suit. They thereby significantly facilitated enforcing state compliance with federal constitutional standardsA At the same time, the proceeding under such enactment comes into conflict with the superior au- thority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.... 209 U.S. at 159-160. 6 Another difficulty with the rationale is how, given the usual principles for construing the statutory federal question jurisdiction, see Louisville & N.R.R. v. Mottley, 211 U.S. 149 (1908), these cases are deemed to "arise under" the Consti- tution when the official character of the action is raised only as justification and the invalidity of the statutory authority only by reply to that justification. 7 Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278 (1913). The Court there said: [I]t may not be doubted