Hickey v. Duffy

FLAUM, Circuit Judge,

concurring in the judgment.

I agree with the majority’s conclusion that this litigation belongs in state court. I disagree, however, with the majority’s rationale: that Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), which allows a federal court to enjoin state proceedings when the federal suit is brought under § 1983, applies only when the suit is based on a violation of the Constitution and not when the suit is based on the violation of a federal statute. The majority offers no authority for this innovative and troubling proposition other than its own examination of the history and purpose of § 1983, and I have been able to find none. I would therefore accept the proposition, urged by both parties in this case, that the Anti-Injunction Act is not applicable to this case in light of Mitchum. Nevertheless, in my view, the majority’s remand of this case to state court is appropriate. Even assuming that the federal statutory claim remaining in the case was ripe for decision (which is unclear, as the majority points out), the district court should have abstained from deciding the federal issue.

“The various types of abstention are not rigid pigeon-holes into which federal courts must try to fit cases. Rather, they reflect a complex of considerations designed to soften the tensions inherent in a system that contemplates parallel judicial processes.” Pennzoil Co. v. Texaco, Inc., — U.S. -, 107 S.Ct. 1519, 1526 n. 9, 95 L.Ed.2d 1 (1987). This case presents a number of considerations that make abstention appropriate both under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and under Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).1

“The basic principle of Younger abstention is that, absent extraordinary circumstances, a federal court should not interfere with pending state judicial proceedings.” Brunken v. Lance, 807 F.2d 1325, 1330 (7th Cir.1986); see Jacobson v. Village of Northbrook, 824 F.2d 567, 569 (7th Cir.1987). Younger involved a request that the federal court enjoin a pending state criminal prosecution. However, the doctrine has been extended to apply to civil proceedings in which “important state interests” are involved, Ohio Civil Rights Comm’n v. Dayton Christian Schools, 477 U.S. 619, 106 S.Ct. 2718, 2723, 91 L.Ed.2d 512 (1986). This case concerns a vital state interest: the State of Illinois’ enforcement procedure for the recovery of support payments.

The Supreme Court has shown great reluctance to interfere with child support and other family law matters that have traditionally been left in the province of the states. See Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979) (State family law will be overridden by conflicting federal law only when Congress has positively required such a result by direct enactment, and when state law does major damage to a clear and substantial federal interest.); United States v. Yazell, 382 U.S. 341, 352, 86 S.Ct. 500, 507, 15 L.Ed.2d 404 (1966) (same); In re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 852-53, 34 L.Ed. 500 (1890) (“The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the laws of the United States.”). Because the plaintiffs in this case ask us to enjoin pending state civil proceedings concerning this important state interest, and because the constitutional issues raised in this suit could have been raised in the state proceed*245ings, see Moore v. Sims, 442 U.S. 415, 430, 99 S.Ct. 2371, 2380, 60 L.Ed.2d 994 (1979), Younger abstention is appropriate.

An important motivation for the Supreme Court’s decision to abstain in Younger was the notion of comity: “that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways,” Younger, 401 U.S. at 44, 91 S.Ct. at 750. In this case, as the majority points out, the state has expressed its desire that this litigation be heard in federal court by removing the suit. The state is entitled to waive the protections of comity. See Brown v. Hotel and Restaurant Employees, 468 U.S. 491, 500 n. 9, 104 S.Ct. 3179, 3184 n. 9, 82 L.Ed.2d 773 (1984); Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 477-80, 97 S.Ct. 1898, 1902-04, 52 L.Ed.2d 513 (1977); see also Ryan v. State Board of Elections, 661 F.2d 1130, 1136 (7th Cir.1981) (rejecting Younger abstention because state removed the case). In my view, however, the state’s removal of the claim in this case did not constitute such a waiver.

In Dayton Christian Schools, even though the state had stipulated to district court jurisdiction, the Court rejected the suggestion that, by doing so, the state had waived any abstention claim. See Dayton Christian Schools, 106 S.Ct. at 2722-23. This case is similar. Although the state has expressed its willingness to have the entire case heard in federal court, this position should not be read as an express directive that the federal court proceed with the federal claim now that the state-law issues — which may render any federal opinion advisory — have been remanded to state court. Rather, the state has taken no position on the issue of abstention in these changed circumstances.2

“The Supreme Court has not decided whether a state forfeits the protection of Younger by silence.” Moses v. County of Kenosha, 826 F.2d 708 (7th Cir.1987). The Court’s recent decision in Granberry v. Greer, — U.S. -, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), however, is instructive. Granberry concerned the question of a state’s waiver of the exhaustion requirement in habeas corpus cases, an issue of comity analogous to this one, see generally McGee v. Estelle, 722 F.2d 1206 (5th Cir.1984) (en banc). The Granberry Court made a distinction between a knowing and express waiver of the protections afforded by comity, and the simple failure to raise the issue, holding that in the latter case the federal court is “not obligated to regard the state’s omission as an absolute waiver of the claim,” id. 107 S.Ct. at 1674. Rather, the court is left with discretion to insist on complete exhaustion of state remedies or take the case. Id. Similarly, in this case the state’s initial removal of the case did not obligate the district court to decide the federal claim. In my view, therefore, the fact that the state originally removed the case does not alter my conclusion that abstention under Younger was appropriate.3

Even if abstention under Younger were inappropriate, the district court should nevertheless have dismissed the case under the doctrine of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), and Moses H. Cone Memorial Hos*246pital v. Mercury Construction, 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In Colorado River, the Supreme Court held that a federal court may properly dismiss a case because of parallel state-court litigation based on “considerations of ‘[wjise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation’.” Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246 (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952)). Although the Court declined to term this type of dismissal “abstention,” we have referred to it as such, see, e.g., Oliver v. Fort Wayne Education Ass’n, 820 F.2d 913, 915 (7th Cir.1987). Colorado River abstention “does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction. The weight to be given to any one factor may vary greatly from case to case, depending on the particular setting of the case.” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937. These factors include “the inconvenience of the federal forum; the desirability of avoiding piecemeal litigation; and the order in which jurisdiction was obtained by the concurrent forums,” Colorado River, 424 U.S. at 818, 96 S.Ct. at 1247 (citation omitted).

In this case, as in Colorado River itself, the desirability of avoiding piecemeal litigation is paramount. The state-law issues in this case, which may obviate a decision on the federal issue, are being decided in a concurrent state proceeding. Thus, there is a “substantial likelihood that the state litigation will dispose of all claims present in the federal case,” Lumen Construction, Inc. v. Brant Construction Co., 780 F.2d 691, 695 (7th Cir.1985). In addition, as the plaintiffs concede in their supplemental brief, most of the cases that have construed the sections of the AFDC statute at issue here have been state cases. Like the field of water rights involved in Colorado River, the field of welfare benefits is one “peculiarly appropriate for comprehensive treatment in the forums having the greatest experience and expertise, assisted by state administrative officers acting under the state courts,” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937. Because “extensive rights governed by state law,” id., are present in this suit, abstention under Colorado River was proper.

In my view, the district court should have abstained from this case. I therefore join in the majority’s decision to remand the entire matter to state court.

. Like the majority, I conclude that rules such as § 2283 and the exhaustion requirement which establish the appropriate relation between state and federal courts may be raised by a federal court on its own initiative under certain circumstances. See Sequoia Books, Inc. v. McDonald, 725 F.2d 1091, 1095 (7th Cir.1984) ("We ... think in fact that it would be imprudent! ] for us to hold that a federal court has no power in any circumstances to abstain on its own initiative on the basis of the Younger doctrine."); Waldron v. McAtee, 723 F.2d 1348, 1351 (7th Cir.1983) (“[T]he court has the power and in an appropriate case the duty to order abstention, if necessary for the first time at the appellate level, even though no party is asking for it").

. Even assuming that the state’s action in this case constituted a waiver, it is unclear whether the district court was therefore required to entertain the suit. The Hodory Court did not indicate that the state’s acquiesence to a federal forum precluded abstention. Rather, the Court held only that "Younger principles of equity and comity do not require this Court to refuse Ohio the immediate adjudication it seeks," Hodory, 431 U.S. at 480, 97 S.Ct. at 1904.

. If Younger abstention is appropriate, federal court intervention is permitted only if: "(1) ‘the state proceeding is motivated by a desire to harass or is conducted in bad faith, ...’; (2) there ‘is an extraordinarily pressing need for immediate equitable relief, ...’; or (3) the ‘challenged provision is flagrantly and patently violative of express constitutional prohibitions,’ ” Jacobson v. Village of Northbrook, 824 F.2d 567, 570 (7th Cir.1987) (citations omitted). None of these factors is present in this case.