Abstention in the Federal Courts: A Suggested Bifurcated Standard of Review to Create Procedural Reliance Where States and Localities Regulate Constitutionally Protected Activity

Authors

Carl E. Brody Jr., Pinellas County Attorney's Office

First Page

539

Document Type

Article

Abstract

State and local governmental entities are conferred the responsibility of creating and enforcing laws within their jurisdictions for the efficient governance of their citizens. Where these laws impact on individuals or businesses subject to this regulatory function, challenge through the court system becomes the only available outlet to determine the rights of the parties. These challenges to state and local laws regulating the acts of private individual and commercial activity are almost uniformly based on claims that such laws violate the First Amendment or other constitutional rights. In many cases, for various purposes, these plaintiff/challengers avail themselves of the jurisdiction of the federal courts. On the other hand, the state or locality maintains a direct interest in adjudicating the violator without the delay of federal court review, particularly where the challenger is currently being adjudicated in the state system; but also where the challenger is embroiled in a state or local administrative adjudication. Therefore, under these circumstances where federal challenges are asserted in response to state or local regulatory actions, abstention is the only vehicle for determining the appropriate forum for adjudication of the matter. The Supreme Court and lower federal courts acknowledge the various abstention doctrines that allow these courts to refrain from exercising jurisdiction, yet by their very nature, the use of this device is applied in an inconsistent and ambiguous manner. No binding basis upon which abstention should be employed exists at this time and as such, counsel attempting to utilize the general proscriptions provided by abstention principles, are unable to employ its use with confidence. Therefore, the key to dealing with this problem is to provide a solid structure upon which the courts can make the determination regarding whether to apply abstention and recede from accepting jurisdiction. Such a standard would be beneficial to both attorneys and the courts. This article will review the several abstention doctrines in detail in order to provide the reader with a full understanding of the rationale supporting each doctrine and the scope limiting the applicability of each doctrine. An examination of the circumstances surrounding the application of each abstention principle will follow this initial examination. Thereafter, the contextual application of these doctrines and the effects that such application has on the enforcement of state and local laws regulating constitutionally protected activity will be examined. Finally, a cure for the main question is proposed which is intended to maintain the use of abstention principles, while providing more concrete guidelines for the application of the various abstention doctrines.

Recommended Citation

Carl E. Brody Jr., Abstention in the Federal Courts: A Suggested Bifurcated Standard of Review to Create Procedural Reliance Where States and Localities Regulate Constitutionally Protected Activity, 13 St. Thomas L. Rev. 539 (2001).
Available at: https://scholarship.stu.edu/stlr/vol13/iss2/5