Indiana Law Review Exhaustion Requirements in Younger-Type Actions: More Mud in Already Clouded Waters Mildred L. Calhoun* The Supreme Court's 1971 decision in Younger v. Harris^ herald- ed a new era of Court-imposed restrictions on the access of civil rights litigants to the federal courts. The Younger Court held that absent extraordinary circumstances a state court defendant could not obtain a federal injunction against his pending state criminal prosecution.^ Although the opinion set forth a relatively simple rule to be applied by the lower courts, the implications of that simple rule have turned out to be complex. Since 1971, the Court has devoted a great deal of time to the Younger doctrine, and in so doing has created a hopeless quagmire which has confused the lower courts and outraged the commentators. One development has been the Court's application of the exhaustion doctrine, generally associated with administrative law, to some Younger-type actions. This Article will examine the development of the Younger doctrine, focusing on the exhaustion requirement and its effects upon federal civil rights litigants.^ I. THE YOUNGER DOCTRINE The Younger doctrine was set forth in Younger v. Harris and five companion cases.* Although the Younger Court argued that its decision rested on precedent and recognized federal policy, the opin- ion in fact represented a radical departure from the Court's earlier practice.^ *Trial Attorney, Antitrust Division, United States Department of Justice, Washington, D.C.; J.D., Indiana University School of Law — Indianapolis, 1978« The views expressed herein represent those of the author and not the Department of Justice. >401 U.S. 37 (1971). Ud. at 41. Tor a general discussion of the Younger doctrine, see C. Wright, Handbook of THE Law of Federal Courts § 52A (3d ed. 1976). *Byrne v. Karalexis, 401 U.S. 216 (1971) (per curiam); Dyson v. Stein, 401 U.S. 200 (1971) (per curiam); Perez v. Ledesma. 401 U.S. 82 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Samuels v. Mackell, 401 U.S. 66 (1971). ^n the words of one commentator, "to the extent the Court based Younger on prior law, it relied upon sheer mythology, a total misconception of pre-Dombrowski history and precedent." Wechsler, Federal Courts, State Criminal Law and the First Amendment, 49 N.Y.U. L. Rev. 740, 875 (1974). For general criticism of the Court's use of precedent in Younger, see Soifer & Macgill, The Younger Doctrine: Reconstructing 521 522 INDIANA LA WREVIEW [Vol. 13:521 Harris had been indicted in a California state court for allegedly violating the California Criminal Syndicalism Act.® Harris then filed an action in federal court asking the court to enjoin Younger, the state district attorney, from prosecuting him under the Act, alleging that the Act infringed upon his first and fourteenth amendment rights. The Supreme Court held that the federal court should ab- stain from enjoining the state court proceeding.^ The Court was con- cerned that a federal court injunction against Harris' prosecution would interfere with state court process in a way which was repug- nant to principles of comity and "Our Federalism." The Court described "Our Federalism" as a system in which there is sensitivity to the legitimate inter- ests of both State and National Governments, and in which the National Government, anxious though it may be to vin- dicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly in- terfere with the legitimate activities of the States.® Furthermore, the Court noted the general equitable principle that, unless the moving party will suffer irreparable injury, an equity court should not enjoin an ongoing criminal prosecution because there is an adequate remedy at law, that is, the defense of the state court prosecution.' Nevertheless, the Court indicated that there might be certain "extraordinary" circumstances in which defense to the state prose- cution would not be an adequate remedy and, therefore. Younger would not preclude federal injunctive relief. These Younger excep- tions would include prosecution brought in bad faith or for purposes of harassment,^" prosecution under a statute which is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph,"" and "[o]ther unusual situations calling for federal intervention . . . ."^^ Because Harris did not establish that his prosecution fell under any of these exceptions, the Court indicated that equity, comity, and federalism required the federal court to deny injunctive relief.^^ Reconstruction, 55 Tex. L. Rev. 1141, 1144-67 (1977); Weinberg, The New Judicial Federalism, 29 Stan. L. Rev. 1191, 1206-09 (1977). *Cal. Penal Code §§ 11400-11401 (West 1970). MOl U.S. at 41. 'Id. at 44. 'Id. at 43-44. '"Id. at 47-49 (construing Dombrowski v. Pfister, 380 U.S. 479 (1965)). "401 U.S. at 53 (quoting Watson v. Buck, 313 U.S. 387, 402 (1941)). "401 U.S. at 54. ''Id. at 43-54. 1980] EXHA USTION REQUIREMENTS 523 In Samuels v. Mackellj^* a companion case to Younger, the Court denied a state court defendant's request for a federal judgment declaring unconstitutional the state law under which he was being prosecuted. ^^ The Court's decision that the availability of federal declaratory relief must be tested by Younger principles was based on its conclusion that although injunctive and declaratory relief are distinct legal remedies, "the practical effect of the two forms of relief will be virtually identical, and the basic policy against federal interference with pending state criminal prosecutions will be frustrated as much by a declaratory judgment as it would be by an injunction."^® Thus, Younger and Samuels taken together preclude a state court defendant from obtaining equitable relief in federal court unless a Younger exception applies. If the federal plaintiff is subject to a pending state court prosecution and no extraordinary cir- cumstances are present, then neither declaratory nor injunctive relief may be granted. In Samuels, the Court had expressly left open the question of the propriety of federal declaratory relief in the absence of a pend- ing state proceeding.^^ This question reached the Court in Steffel v. Thompson}^ Becker and Steffel had been threatened with arrest while distributing handbills at a local shopping center. Steffel ceased handbilling at the threat of arrest,^* but Becker continued to distribute handbills and was arrested. Steffel and Becker brought an action in federal court challenging the validity of the statute under which Becker had been arrested. The lower federal courts held that Younger precluded both Steffel and Becker from obtaining injunc- tive or declaratory relief in federal court.'^" Steffel appealed to the Supreme Court from the denial of declaratory relief. The Court held that Steffel could obtain a declaratory judgment in federal court because he was not being prosecuted in state court and because he had shown "a genuine threat of enforcement of a disputed state criminal statute . . . ."^^ The Court reasoned that when the federal "401 U.S. 66 (1971). ''Id. at 73. ''Id. "Id. at 73-74. ^«415 U.S. 452 (1974). ''The parties stipulated that Steffel might have been arrested had he continued handbilling. Id. at 456. ^'See Becker v. Thompson, 334 F. Supp. 1386 (N.D. Ga. 1971), aff'd, 459 F.2d 919 (5th Cir. 1972). "415 U.S. at 475. In Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), a Steffel-type case decided one year after Steffel, the Court held under the facts that the federal plaintiffs were entitled to a preliminary injunction without meeting the Younger test pending disposition of their request for declaratory relief. Id. at 930-31. 524 INDIANA LA WREVIEW [Vol. 13:521 plaintiff is not the subject of a pending state proceeding, principles of equity, comity, and federalism do not preclude federal intervention in the form of a declaratory judgment, which Congress intended *'as an alternative to the strong medicine of the injunction . . . ."^^ The Steffel decision is the cornerstone of the Younger paradox, for it provides the basis upon which the courts must decide which litigants can proceed in federal court despite possible effects on the state court, Although Steffel appears sensible on its face, a close analysis reveals that the case rests on a formalistic distinction. The Younger doctrine is designed to protect state courts from undue federal interference. The Steffel Court, however, defined undue federal interference with a state court solely in terms of the identity of the federal plaintiff; instead of looking to potential impact or in- terference in the state court, the Court asked only whether the federal plaintiff was the subject of a pending state proceeding. This identity-based distinction, although apparently easy to apply ,^^ is not necessarily meaningful. To best illustrate the ''Younger paradox," it is useful to look at a hypothetical case. A distributes handbills at a local shopping center and is arrested for violating a state statute which is suspect. Because A cannot establish that her prosecution falls under any Younger exception. Younger and Samuels preclude her from challenging the statute in federal court. Nevertheless, A's friend B, who also distributed handbills but left before the arrests took place, can now obtain federal declaratory relief which will effectively pre- vent enforcement of the statute.^* Assuming that the federal court grants relief before A's trial in state court, there can be little doubt that as a practical matter, ^'s prosecution will be terminated as surely as if A had obtained the relief independent of B's action. Clearly, there is a formal distinction between the relief obtained by A and that obtained by B. If A has already been prosecuted and convicted when B obtains federal relief, A will probably be unable to "415 U.S. at 466. ^^Essentially, Steffel states that if the federal plaintiff is currently being prose- cuted in state court, relief would impermissibly interfere with the state court. In later cases such as Hicks v. Miranda, 422 U.S. 332 (1975), the Court obscures the definition of who is currently being prosecuted. Hicks is discussed in notes 31-39 infra and ac- companying text. ^*To the extent that Steffel does not mandate this result, later cases clearly com- mand it. Because Becker did not appeal the lower court's decision, the Supreme Court in Steffel did not consider the outcome of a case in which there are two closely related federal plaintiffs, one who is subject to state prosecution and one who is not. This fact situation was presented in Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), in which the Court determined that Younger would permit the party not being prosecuted to bring a federal action. Id. at 930. 1980] EXHA USTION REQUIREMENTS 525 collaterally attack her conviction.^^ If A has not yet been prosecuted it is conceivable, but unlikely, that the prosecution against her will proceed after a federal court has declared the statute unconstitu- tional. Under certain circumstances, B's federal judgment may ac- tually be binding upon ^'s prosecutor or the court in which she is tried.^* Even without considering the res judicata effect of a federal declaratory judgment, however, it is clear that as a practical matter a prosecutor would be reluctant to proceed under these circum- stances. In fact, proceeding after the statute had been declared un- constitutional might be considered bad faith prosecution, permitting A to seek federal relief under the bad faith prosecution exception outlined in Younger}'^ Thus, there is a technical distinction between a judgment obtained by A and a judgment obtained by B. Simply stated, a judg- ment granted to A will definitely halt her prosecution, but a judg- ment granted to B will only probably halt A's prosecution. Is this the stuff of which comity is made? Is not the interference with the state system just as profound in the second instance as it is in the first? Arguably it may be less offensive to inform a state court that the statute under which it is prosecuting A is unconstitutional than to direct the state court not to prosecute A, but the practical im- pact—the interference with the state court process — is virtually the same.^® Although it may provide cold comfort to civil rights advocates, Steffely as decided, leaves the door partially ajar for civil rights litigants. If the outcome of Steffel had been different, the Court in- deed would have "place[d] the hapless plaintiff between the Scylla of ^^See Wooley v. Maynard, 430 U.S. 705 (1977), discussed in notes 85-91 infra and accompanying text. ^he binding effect of B's federal judgment would depend on who were parties to the federal action and the wording of any federal court order. If ^'s prosecutor were a party to the federal action and the order prohibited prosecution under the statute, A's prosecutor would probably be bound by the federal judgment. The res judicata effect of a federal declaratory judgment, however, remains unresolved. See Steffel v. Thomp- son, 415 U.S. at 469-71 (quoting Perez v. Ledesma, 401 U.S. 82, 124-26 (1971) (Brennan, J., concurring in part and dissenting in part)). "Justice Rehnquist, however, argues to the contrary in his concurring opinion in Steffel: [Ajttempts to circumvent Younger by claiming that enforcement of a statute declared unconstitutional by a federal court is per se evidence of bad faith should not find support in the Court's decision in this case. . . . [CJontinued belief in the constitutionality of the statute by state prosecutorial officials would not commonly be indicative of bad faith .... 415 U.S. at 483 (Rehnquist, J., concurring). ^*It is interesting to note that in Samuels v. Mackell, 401 U.S. 66 (1971), discussed in notes 14-17 supra and accompanying text, the Court looked to the practical impact as opposed to the legal distinctions. 526 INDIANA LA WREVIEW [Vol. 13:521 intentionally flouting state law and the Charybdis of foregoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding."^ A decision prohibiting potential state court defendants from litigating in federal court would have been a logical extension of Younger, but would have radically restricted access to the federal courts by civil rights litigants — so radically, in fact, that it might have caused the Justices to reconsider the wisdom of Younger. Such a decision would have all but shut the door on challenges to state statutes in federal court. A federal plaintiff who was the subject of a pending state court prosecution would have been precluded by Younger and Samuels from obtaining relief in federal court, and a federal plaintiff who, although not the subject of a pending prosecution, could show a real threat of state court prosecution, would not have had standing to maintain a federal action.^" Of course, the Court did not decide Steffel in the manner suggested, but instead held that Younger does not preclude federal declaratory relief when a prosecution is merely threatened rather than in progress. The Court continued to refine, and in so doing, to complicate, the Younger doctrine in Hicks v. Miranda.^^ In Hicks, the Court held that a federal plaintiff who was not himself the subject of state pro- ceedings would be bound by Younger principles if his interests "intertwined" with those of someone who was being prosecuted^^ or if the state prosecutor filed an action against the federal plaintiff after the federal action had been filed '*but before any proceedings of substance on the merits [had] taken place in the federal court "^^ In Hicks, the prosecutor filed criminal misdemeanor charges against employees of a theatre for violating a state nuisance statute; as a result, the theatre was closed. The owners of the theatre filed an action in federal court challenging the statute under which the employees had been prosecuted. The Supreme Court held that abstention under Younger was re- quired under either of two theories. First, the Court found that the theatre owners "had a substantial stake in the state proceedings, so much so that they sought federal relief, demanding that the state statute be declared void and their films be returned to them. Obvious- ^415 U.S at 462. ^This "Catch 22" approach was actually the outcome of Juidice v. Vail, 430 U.S. 327 (1977). In that case, the Court held, under a limited fact situation, that those plain- tiffs who were not being prosecuted in state court and were therefore not subject to Younger had no standing, but those persons who were being prosecuted in state court, and therefore had standing, were subject to Younger. Id. at 331-33. ''422 U.S. 332 (1975). ''Id. at 348-49. ""Id. at 349. 1980] EXHA USTION REQUIREMENTS 527 ly, their interests and those of their employees were intertwined "^* Thus, the federal plaintiffs would be regarded for purposes of the federal action as defendants to the state prosecution. The Court did little else to define "intertwining," leaving the lower courts to fend for themselves.^^ The Court gave a second ground to support the result in Hicks. After the federal action had been filed, the state prosecutor amended the criminal action to name the theatre owners as defendants. The Supreme Court held that this state prosecution, commenced after the federal action, constituted a "pending proceeding" for Younger pur- poses: Neither Steffel v. Thompson . . . nor any other case in this Court has held that for Younger v. Harris to apply, the state criminal proceedings must be pending on the day the federal case is filed. . . . [W]e now hold that where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v, Harris should apply in full force.^^ The holding in Hicks is disturbing for both practical and pedagogical reasons. On the practical level, the Court created still another technical complexity for federal courts trying to determine the applicability of Younger principles. The Younger test no longer- involved the simple question whether the federal plaintiff was sub- ject to a pending state court criminal prosecution. Now the test was more complicated: (1) Was the federal plaintiff subject to a pending state court criminal prosecution at the time the federal complaint was filed? (2) Was a state court proceeding filed against the federal plaintiff before proceedings of substance on the merits had transpired in the federal action? (3) Is the federal plaintiff, not himself the subject of state proceedings when the federal action was filed, nonetheless "intertwined" with a party who was then subject to an ongoing state court prosecution? A "yes" answer to any of these questions would invoke Younger abstention. ^Id. at 348-49. ^^Hicks is the only case in which the Supreme Court has mentioned the "inter- twining" standard. In Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), the Court characterized as "Procrustean" the position taken by the lower court that three cor- porate entities challenging the same statute, represented by the same counsel, and possessing apparently identical interests should be subject to the same Younger con- siderations. Id. at 928-29. ^M22 U.S. at 349 (emphasis added). 528 INDIANA LA WREVIEW [Vol. 13:521 Pedagogically, Hicks represents a radical abdication of jurisdiction by federal courts. If Younger stands for the proposition that a federal court cannot interfere with ongoing state proceedings, then Hicks stands for the proposition that state prosecutors can interfere with ongoing federal proceedings.^^ After Hicks, a state prosecutor can terminate a federal action filed against him by instituting pro- ceedings against the federal plaintiff under the challenged ordinance before "proceedings of substance on the merits" have transpired in the federal action.'® Surely this result would seem to "turn federalism on its head."'^ II. Abstention and exhaustion In this climate of confusing and sometimes contradictory absten- tion mandates, the Court decided Huffman v. Pursue, Ltd.*^ The ap- plication of abstention in the Huffman context was so novel that the Supreme Court found no indication that the district court had even considered Younger principles.*^ Huffman is significant for two reasons. First, it was the earliest case in which the Court, which had previously applied Younger only in the criminal context, held the Younger doctrine applicable to those civil cases which, because they involve important state interests, are "akin" to state prosecutions.*^ Second, it was the first case in which the Court applied the Younger doctrine when no proceeding was in progress at the state court level. According to the Court, abstention was appropriate because the federal plaintiff had failed to exhaust his state court remedies.*' In Huffman, the federal plaintiff. Pursue, Ltd., attempted to challenge the validity of an Ohio statute which provided that a place ^''See id. at 353-57 (Stewart, J., dissenting). '*422 U.S. at 349. The assumption — which is in no way unreasonable — is that the prosecutor can validly prosecute the federal plaintiff: to have established standing to bring the federal action, the federal plaintiff must have shown he was subject to a real and immediate threat of prosecution. Steffel v. Thompson, 415 U.S. at 459. Of course, if a state prosecutor were to prosecute without sufficient grounds merely to remove the case from federal court, this might well constitute bad faith. If so, abstention would not be required under Younger. '"Steffel V. Thompson, 415 U.S. at 472. "420 U.S. 592 (1975). *7d. at 599. "M at 604. Soon to follow were Trainor v. Hernandez, 431 U.S. 434 (1977), and Juidice v. Vail, 430 U.S. 327 (1977), in which the Court went even further than it had gone in Huffman, extending Younger to civil cases in which the state has a significant interest. See also Moore v. Sims, 99 S. Ct. 2371 (1979). The application of Younger to civil cases may have been a logical extension of the doctrine, but it was not a happy one. No other single Younger development has pro- voked such critical fire. See, e.g.. Shaman & Turkington, Huffman v. Pursue, Ltd.: The Federal Courthouse Door Closes Further, 56 B.U.L. Rev. 907 (1976). *«420 U.S. at 608. 1980] EXHA USTION REQUIREMENTS 529 which exhibits . obscene films is a nuisance. Prior to the federal action, the state prosecutor had instituted a civil nuisance pro- ceeding in the Ohio courts against the plaintiffs predecessor in in- terest. After Pursue, Ltd. had succeeded to the leasehold interest of the state court defendant, the Ohio court issued a final judgment ordering closure of the theatre for a year and seizure and sale of personal property used in the operation of the theatre. In the federal action. Pursue, Ltd. argued, inter alia, that Younger was inapplicable because no state court action was pend- ing. In Steffel, the Court had held that Younger would not preclude federal declaratory relief when there was a genuine threat of future prosecution, but no pending prosecution. Because the Ohio court had entered a final judgment and, arguably, the proceeding was ter- minated, the federal plaintiff claimed that there was no pending prose- cution. The Supreme Court did not consider the question whether the Ohio court's judgment was final, but instead held Younger ap- plicable because the federal plaintiff had failed to take appeal from his state court judgment to the state appellate system: [R]egardless of when the Court of Common Pleas' judgment became final, we believe that a necessary concomitant of Younger is that a party in appellee's posture must exhaust his state appellate remedies before seeking relief in the District Court, unless he can bring himself within one of the exceptions specified in Younger,** According to the Court, federal intervention in the state process before exhaustion of state appellate remedies would be duplicative and disruptive. Furthermore, the Court recognized that "[fjederal post-trial intervention, in a fashion designed to annul the results of a state trial, also deprives the States of a function which quite legitimately is left to them, that of overseeing trial court disposi- tions of constitutional issues which arise in civil litigation over which they have jurisdiction."*^ Thus, Huffman further complicates the tests set forth in earlier cases. Now, federal courts had to resolve the following questions: (1) Was the federal plaintiff subject to a pending state court criminal prosecution or a state civil action involving important state inter- ests when the federal complaint was filed? (2) Was a state pro- ceeding filed against the federal plaintiff before proceedings of substance on the merits had transpired in the federal action? (3) Is the federal plaintiff, not himself the subject of state proceedings *^Id. at 609 (emphasis added). 530 INDIANA LA W REVIEW [Vol. 13:521 when the federal action was filed, nevertheless "intertwined" with a party who was then subject to an ongoing state court proceeding? (4) Is the federal relief designed to annul the results of a state pro- ceeding! The imposition of an exhaustion requirement in a section 1983*® action inspired grave doubts about the continued validity of Monroe V. Pape.*^ In Monroe, the Court held that a federal plaintiff need not exhaust state court remedies before bringing a section 1983 action in federal court: "It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.'*" Justice Brennan in his dissenting opinion in Huffman stated that "[t]he extension ... of Younger v. Harris to require exhaustion in an action under [section] 1983 drastically undercuts Monroe v. Pape and its numerous progeny . . . ."** Nevertheless, Justice Rehnquist for the majority asserted that the exhaustion requirement did not undermine Monroe v. Pape.^^ Rehnquist maintained that in Monroe, the Court held "that one seeking redress under . . . [section] 1983 for a deprivation of federal rights need not first initiate state pro- ceedings based on related state causes of action."^^ He distinguished Monroe on the ground that it "had nothing to do with the problem [before the Court in Huffman] of the deference to be accorded state proceedings which have already been initiated and which afford a competent tribunal for the resolution of federal issues."^^ Thus, the majority in Huffman indicated that as long as the federal plaintiff had not initiated any action in state court, and no state action had been initiated against him, the federal forum would remain open and exhaustion of state remedies would not be re- quired. As Justice Brennan indicated in his dissenting opinion, however, there was some fear that the Huffman exhaustion require- "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be sub- jected, any citizen of the United States or other person within the jurisdic- tion thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983 (1970). "365 U.S. 167 (1961), overruled on other grounds, Monell v. Department of Social Servs., 436 U.S. 658 (1978). "365 U.S. at 183. "420 U.S. at 617 (Brennan, J., dissenting). ^420 U.S. at 609 n.21. "/d at 609-10 n.21. 1980] EXHA USTION REQUIREMENTS 531 ment would be extended to create a serious stumbling block to ob- taining federal relief under section 1983.^^ Despite the fears voiced by the Huffman dissenters and com- mentators, the Court has recently indicated that the exhaustion re- quirement will not be interpreted broadly. In Redhail v. Zablocki,^* the federal plaintiffs challenged, under section 1983, a Wisconsin statute which required certain residents to obtain a court order before they could marry. The district court considered whether Younger and Huffman would require the federal plaintiff to challenge the Wisconsin statute in state court and determined that Younger need not be invoked because there was no pending pro- ceeding in the state court.^^ Furthermore, the court discussed the Huffman exhaustion requirement and concluded, citing Monroe v. Pape, that a federal plaintiff proceeding under section 1983 need not first apply to the state courts for relief.^® The Supreme Court affirmed the lower court's decision, but summarily disposed of the abstention issue in a footnote: "[T]he District Court was correct in finding Huffman and Younger inap- plicable, since there was no pending state-court proceeding in which appellee could have challenged the statute."" The mere fact that there was no pending prosecution should not have been a sufficient reason to dismiss the abstention issue.^® In Huffman, the Court had held that the exhaustion requirement did not depend upon whether there was a pending action. In fact, there was no pending action in Huffman, but abstention was required because the federal plaintiff had failed to make a timely appeal of the judgment against it. Ac- tually, the appropriate test to be applied in Redhail, which the Court set forth in Huffman, would have been whether the federal relief was designed to annul the results of a state trial. Despite the fact that the Redhail Court applied the wrong test, the Court was obviously correct in its conclusion that Huffman did not require abstention because in Redhail there had been no state trial. Redhail thus indicates, at least by inference, that the Court does not intend to require abstention for failure to exhaust state remedies unless ^See, e.g., Bartels, Avoiding a Comity of Errors: A Model for Adjudicating Federal Civil Rights Suits that "Interfere" with State Civil Proceedings, 29 Stan. L. Rev. 27, 30 n.8 (1976); Soifer & Macgill, supra note 5, at 1182. "418 F. Supp. 1061 (E.D. Wis. 1976), affd, 434 U.S. 374 (1978). '^''418 F. Supp. at 1065. "M (citing Monroe v. Pape, 365 U.S. 167 (1961)). "434 U.S. at 380 n.5. "The Court may have meant that there was no proceeding, pending or otherwise, in the state court and that it was therefore unnecessary to apply the Huffman test, that is, to ask whether the federal relief would annul the results of a state trial. Nevertheless, the Court specifically referred to a pending proceeding. 532 INDIANA LA WREVIEW [Vol. 13:521 there has been a state proceeding which would be interfered with in some way if relief were to be granted. A. Huffman and the Civil Rights Litigant The assurance that Huffman will not be extended to overrule Monroe v. Pape provides little comfort to the prospective federal plaintiff who, like the plaintiff in Huffman, does not choose the state forum but has it chosen for him by the state prosecutor. As in Hicks, the Supreme Court in Huffman gave the state prosecutor the opportunity to choose the preferred forum, and a state prosecutor will inevitably choose the state court. Absent extraordinary cir- cumstances, once the prosecutor has initiated an action in state court, the state court defendant must pursue his state appellate remedies before commencing a federal action. As recognized by the dissenters in Huffman, "the mere filing of a complaint against a potential [section] 1983 litigant forces him to exhaust state remedies."^^ The prospective federal plaintiff's plight is further aggravated by the Hicks definition of a pending prosecution which would invoke Younger principles as one filed before "proceedings of substance on the merits" have begun in the federal action.*" Although the prospec- tive federal plaintiff may win the race to the federal courthouse, he would still lose if the state prosecutor files in state court before pro- ceedings of substance have taken place in the federal court. The Court apparently saw no inequity in relegating the plaintiff in Huffman to the state courts — at least no inequity which outweighed the competing interests of federalism. In fact, the Huffman Court con- cluded that the federal plaintiff should not be permitted the "luxury" of litigating in federal court when that "luxury" is so "costly" to federalism.®^ The Court's willingness to relegate the federal plaintiff to the state courts rests on two basic assumptions. The first assumption, often repeated in Younger cases, is that state courts have a constitu- tionally imposed responsibility to enforce the Constitution and that the Court will not assume that the state courts are either unable or unwill- ing to enforce constitutional mandates.*^ The second assumption is that the aggrieved defendant has the option of appealing an adverse state decision to the United States Supreme Court and may in fact be able to appeal as a matter of right.®^ These safeguards, argues the Court, pro- vide an adequate federal remedy. '"'420 U.S. at 617 (Brennan, J., dissenting). "422 U.S. at 349. "420 U.S. at 605-06. "M at 611. See also Moore v. Sims, 99 S. Ct. 2371 (1979). •"420 U.S. at 605. 1980] EXHA USTION REQUIREMENTS 533 Neither of these assertions is particularly convincing. The Court's assumption that state courts are at least as capable of deter- mining constitutional issues as federal courts is directly contrary to the express purpose and mandate of Congress in enacting section 1983. It is only logical to assume that federal courts will be more familiar with federal issues than state courts. Federal decisions made by the federal judiciary will also tend to be more uniform than those made by state court judges, because the federal judiciary is a more cohesive group than the state judiciary.** Furthermore, federal constitutional decisions may be controver- sial and unpopular. Federal judges appointed for life are not subject to reelection or reappointment. The singular ability of the federal judiciary to protect the constitutional rights of citizens is best illuminated by asking one question: Where would the civil rights movement be today if it had depended upon the state courts to en- force constitutional guarantees of equal protection? Fortunately, this question need never be answered because Con- gress has provided a remedy which enables civil rights advocates to challenge deprivations of civil rights under color of state law in federal court. This remedy is section 1983, which allows persons ag- grieved by state authorities to bypass the state courts and sue in federal court. To the extent that Younger and cases like Huffman have limited the availability of the federal forum, the Court has undermined the congressional grant of jurisdiction. As the Supreme Court itself recognized in Mitchum v. Foster,^^ "[t]he very purpose of [section] 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights — to pro- tect the people from unconstitutional action under color of state law, 'whether that action be executive, legislative, or judicial.' "*"' The Court's assumption that appeal to the Supreme Court pro- vides an adequate remedy is also subject to criticism. Fewer than ten percent of all petitions for review are granted.*' And although a final decision of a state court which sustains the validity of a state statute on federal constitutional grounds is appealable to the Supreme Court as a matter of right,'* the Court summarily disposes of most such cases.** A ten percent chance of consideration by the **See Soifer & Macgill, supra note 5, at 1185; Wells, Preliminary Injunctions and Abstention: Some Problems in Federalism, 63 CORNELL L. Rev. 65, 74-75 (1977). •^407 U.S. 225 (1972). ^I± at 242 (quoting Ex parte Virginia, 100 U.S. 339, 346 (1879)). '^Casper & Posner, A Study of the Supreme Court's Caseload, 3 J. Legal Stud. 339, 361, 367 (1974). •^8 U.S.C. § 1257(2) (1970). ""Erwin N. Griswold, former Solicitor General of the United States (1968-1973) has stated that "(wjith few exceptions, appeals are treated as discretionary, and are 534 INDIANA LA WREVIEW [Vol. 13:521 Supreme Court cannot be as effective an alternative as full review of the merits by a lower federal factfinder. The Younger line of cases has rejected the idea that a litigant might have a legitimate interest in litigating in federal, as opposed to state, court. This closing of the federal courthouse doors may be the result, not of principle and precedent, but of a desire to limit the ever increasing caseload of the federal courts. B. Applications of Huffman in the Lower Courts The Huffman exhaustion rule has continued to generate confu- sion in the lower courts. In Kahn v. Shainswit,''^ the plaintiff, Kahn, requested a federal court order restraining a New York state judge from enforcing a state statute which foreclosed Kahn from counterclaiming in a state court divorce action in which he was a defendant. The district court recognized that Huffman had expanded Younger to the civil context and found that it was applicable to the case. The court observed that because Kahn was not foreclosed from appeal in the state courts and had failed to exhaust his state court remedies, abstention was required.^^ Actually, the court in Kahn did not have to consider the exhaus- tion issue. Because the state court judge had not issued a final order^^ there was still a pending state court action to which the federal plaintiff was subject. Technically, the exhaustion issue should only be raised after a determination that there is no pending prosecution.^^ One disturbing application of the Younger exhaustion doctrine has been the use of Huffman by some federal courts as a basis for denying pretrial habeas corpus relief. In Ex parte RoyalW^ the Supreme Court held that a federal court could use its discretion in determining whether to grant habeas relief to a state court defend- routinely dismissed 'for want of a substantial federal question. ' " Griswold, Rationing Justice— The Supreme Court's Caseload and What the Court Does Not Do, 60 COR- NELL L. Rev. 335, 345 (1975). ^M14 F. Supp. 1064 (S.D.N.Y. 1976). "M at 1068. "/rf. at 1065. "This may be overstating the case. In Huffman, the Court did not determine whether the state court's order became final before or after the federal filing. The Court considered such an inquiry unnecessary because it found that exhaustion was re- quired in any event. 420 U.S. at 608. In Kahn, however, it was clear that no final order had been entered in the state action when the federal action was decided. See 414 F. Supp. at 1065. Therefore, it was unnecessary to reach the exhaustion issue. ^*117 U.S. 241 (1886). 1980] EXHA USTION REQUIREMENTS 535 ant who had not been tried, but who had exhausted all state pretrial remedies. Nevertheless, in Schlesinger v. Councilman,''^ the Court noted in dicta that the "considerations of comity" inherent in Younger "underlie the requirement that petitioners seeking habeas relief . . . must first exhaust available state remedies . . . ."^* In United States v. New York,'''' the Second Circuit denied a pretrial petition for habeas corpus, even though the state court defendant had exhausted all of her pretrial remedies, on the ground that Younger and Huffman required the state court defendant to exhaust all state court options. According to the court, the defendant had two choices: she could raise her constitutional defenses at trial in the state court, or she could plead guilty and raise them on appeal in the state appellate system. In Drury v. Cox,^^ the Ninth Circuit reached a similar conclusion: Our reading of Younger v. Harris . . . convinces us that only in the most unusual circumstances is a defendant entitled to have federal interposition by way of injunction or habeas corpus until after the jury comes in, judgment has been ap- pealed from and the case concluded in the state courts. Ap- parent finality of one issue is not enough.^^ Although other courts have agreed with the Second and Ninth Circuits,**^ at least one court has disagreed. In Rivers v. Lucas,^^ the Sixth Circuit rejected the Drury holding: "[W]e have found no Supreme Court decision which holds that pretrial habeas corpus relief is the equivalent of an injunction to stay proceedings in a state court."®^ The application of Huffman in the habeas corpus context is par- ticularly disturbing. The Huffman Court held that when federal relief is designed to annul the results of a state trial, exhaustion of state remedies is required. Thus, Huffman's application to federal habeas corpus proceedings could mandate abstention in all habeas actions involving state incarcerations because the remedy of habeas corpus by its very nature is almost always designed to annul the results of a state trial. "420 U.S. 738 (1975). "/d. at 756. "532 F.2d 292 (2d Cir. 1976). "457 F.2d 764 (9th Cir. 1972). "/d at 764-65. '"See, e.g., Dolack v. Allenbrand, 548 F.2d 891 (10th Cir. 1977); Powell v. Keve, 409 F. Supp. 228 (D. Del. 1976). "477 F.2d 199 (6th Cir.), vacated and remanded, 414 U.S. 896 (1973). "^77 F.2d at 203. 536 INDIANA LA WREVIEW [Vol. 13:521 III. WOOLEY V. MAYNARD AND THE Exhaustion Requirement It is unfortunate that the first mention of the exhaustion requirement, in Huffman, was largely overshadowed by Huffman's extension of Younger to certain civil cases.®^ The application of ex- haustion in the civil context obscured the direction in which the Court was pointing. In Huffman, the Court was concerned with the same sort of problem which had been raised by the peculiar facts of Hicks V. Miranda. In both Hicks and Huffman, the state courts had ordered closure of the federal plaintiffs' theatres. In Huffman, the court had ordered the seizure and sale of the plaintiffs property as well. Neither case was concerned as much with stopping an ongoing prosecution as with recovering property seized by the state court. In each case, the federal plaintiff attempted to undo the state court's actions without directly challenging its decision by attacking, in federal court, the statute under which the state court had pro- ceeded. The practical result of having prevailed in such a challenge would not have been much different than having successfully defended or appealed in the state court. Thus, in both Hicks and Huffman the federal plaintiff had an interest which could be pro- tected only by attacking a state court proceeding in a way which the Court had determined was antithetical to Younger principles. The Court was stating in Hicks that the federal plaintiffs, although technically not subject to a pending state court action, were seeking relief which would disrupt the state court in the same manner as if the federal plaintiffs were before the state court in a pending action. The relevant factor was the impact which the relief sought would have upon the state court rather than any particular individual's status as a party to a pending proceeding. This aspect of the case, however, was obscured by the Court's continued focus on the identity of the federal plaintiff. Thus, in cases in which the relief sought amounts to a collateral attack on a state court decision, or in the Court's words, when the relief sought is ''designed to annul the results of a state trial," Huffman requires exhaustion.®^ In this context the exhaustion requirement does not pose a serious threat to Monroe v. Pape or to actions brought under sec- tion 1983 generally. Huffman was not really intended to overrule Monroe or to seriously limit its viability. Huffman merely creates a limited exception to the "no exhaustion" rule of Monroe. In situa- tions in which the section 1983 action amounts to a collateral attack on a state court judgment, the federal plaintiff will be forced back into the state system to appeal the state court's decision. Although ^See note 42 supra and accompanying text. "420 U.S. at 609. 1980] EXHA USTION REQUIREMENTS 537 this result will not find favor with those who believe that civil rights are more important than states' rights, it in no way ap- proaches the spectre of an exhaustion requirement in all section 1983 cases. Applying Huffman in the criminal context makes the exhaustion requirement easier to understand. If Pursue, Ltd. had been prose- cuted, convicted, and fined in state court for violating a criminal nuisance statute and had then come into federal court challenging the nuisance statute and demanding the return of its fine, the Court would have required the federal plaintiff to go back to the state courts to appeal its state court judgment. This is the way most of the lower federal courts have applied the exhaustion requirement.^^ What would happen if Pursue, Ltd. were prosecuted, convicted, and fined in state court and then went to federal court to challenge pro- spectively the application of the statute? In other words, what would be the result if the federal plaintiff did not request relief which would have a direct impact on the state court judgment? These were the facts in Wooley v. Maynard.^^ George Maynard had been prosecuted repeatedly in the New Hampshire courts for obscuring the state motto "Live Free or Die" on his license plates. He had been fined and had served a fifteen-day sentence for violating an ordinance requiring display of the motto. When no pro- ceeding was pending against Maynard,®^ he and his wife brought an action in federal court challenging the ordinance on first amendment grounds. The state argued that Younger and Huffman precluded federal intervention because Maynard had not sought review of his state court convictions and thus had failed to exhaust his state court remedies. The Court held that exhaustion was not required because Maynard, rather than attempting to attack his state court convic- tions, was seeking purely prospective relief: "[Maynard] does not seek to have his record expunged, or to annul any collateral effects those convictions may have, e.g.j upon his driving privileges. The Maynards seek only to be free from prosecutions for future viola- tions of the same statutes. Younger does not bar federal jurisdic- tion."*® Thus, Wooley limits the exhaustion requirement to those •"See, e.g., Foster v. Zeeko, 540 F.2d 1310 (7th Cir. 1976); Dones-Arroyo v. Trias- Monge, 430 F. Supp. 315 (D.P.R. 1976). ••'430 U.S. 705 (1977). "Actually, Maynard's third prosecution for violation of the statute had been con- tinued for sentencing. Id. at 708. Nevertheless, the district court found that "continued for sentencing" amounted to a final order in this setting, because no collateral conse- quences would result unless Maynard were prosecuted in the future. Id. at 711 n.8 (quoting Maynard v. Wooley, 406 F. Supp. 1381, 1384 (D.N.H. 1976)). •«430 U.S. at 711. 538 INDIANA LA WREVIEW [Vol. 13:521 cases in which the federal action is, in effect, a collateral attack upon a state court proceeding. Huffman clearly involved such a col- lateral attack, for the relief requested would have dissolved the state court's order. Is this a workable standard? And if it is, is it a reasonable one? To a certain extent, any federal judgment regarding a state statute will have some impact on the courts of that state. That, we recog- nize, is one of the costs of the federal system. Younger indicates that some types of impact are prohibited. For example, a state court defendant cannot seek a federal injunction against his ongoing state prosecution. Steffel indicates that some types of impact are not pro- hibited. Thus, a friend of a state court defendant, who is subject to a threat of prosecution but who is not being prosecuted, can go into federal court and have the statute under which the state defendant is being prosecuted declared unconstitutional. As discussed earlier,*^ this declaratory action is not barred by principles of federalism, even though it will terminate the state court prosecution as surely as if the relief had been granted to the state court defendant. The distinctions drawn by the Court do not clearly indicate what kind of impact the requested relief must have on the state court before it will amount to relief ''designed to annul the results of a state trial . . . ."^° In Wooley, the Court noted that the plaintiff had not sought to have his previous record expunged and that the re- quested relief was purely prospective, but was it purely prospec- tive? After the Supreme Court had issued an injunction against Maynard's future prosecution under the statute, could the state have initiated proceedings to revoke Maynard's license based on his convictions under the statute? Legally, there may be some doubt whether a state could successfully bring such an action. As a prac- tical matter, however, it is doubtful that a state would do so. Thus, Maynard's purely prospective relief effectively expunged his record. In short, the distinction between actions designed to annul the results of a state trial and actions requesting purely prospective relief may be one of form rather than substance. If, for example, the plaintiff in Huffman had not attempted to attack the state court determination, but instead had challenged the constitutionality of the statute prospectively, would that plaintiff have been barred from proceeding by Younger? Wooley suggests that he would not.*^ Does Wooley create an exception to Younger that destroys the rule? **See text accompanying notes 24-28 supra. ""Huffman v. Pursue, Ltd., 420 U.S. at 609. "The result would depend upon whether there was a final order in the state court. If not, Younger would apply. 1980] EXHAUSTION REQUIREMENTS 539 When the Court prospectively strikes down a state statute, what im- pact will that have on past state actions? Which types of impact on state court proceedings will be inimical to federalism and which will not? Questions such as these raise doubts not only about the sound- ness of the Huffman decision, but also about the soundness of Younger itself. IV. Conclusion The exhaustion requirement for Younger-iy^e cases set forth in Huffman exemplifies the increasing complexity of the Younger doc- trine. In its narrowest application, the Huffman exhaustion require- ment prevents state court defendants from collaterally attacking state court judgments in federal court. At its broadest, Huffman could overrule Monroe v. Pape, precluding the federal plaintiff from challenging any state statute in federal court without first applying to the state courts for relief. Redhail and Wooley, however, indicate clearly that the Court in Huffman did not intend the latter result. Therefore, the Huffman exhaustion requirement poses an annoying, but not insurmountable, obstacle to the federal civil rights litigant. The exhaustion requirement is troublesome because it further complicates and obscures an already complex procedural doctrine. Although '*Our Federalism" is an important concept in the federal constitutional system, individual civil rights are at least as impor- tant. These civil rights are being threatened by technical complexi- ties which make it increasingly difficult to reach the federal forum. Moreover, the rules governing Younger extension are at least para- doxical, and at most inconsistent. In any event, they are unpredicta- ble. With the Younger decision, the Court took a broad sweep with the paint brush. With each succeeding decision, it comes closer and closer to painting itself into a corner.