England v. Louisiana State Board of Medical Examiners/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

The judge-made rule we announce today promises to have such a serious impact on litigants who are properly in the federal courts that I think a reappraisal of Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, from which today's decision stems, is necessary. Although the propriety of the Pullman doctrine, either as originally decided or as it has evolved, has not been raised by the parties, I think it is time for the Court, sua sponte, to reevaluate it.

The Pullman case, decided a little over 20 years ago, launched an experiment in the management of federal-state relations that has inappropriately been called the 'abstention doctrine.' There are numerous occasions when a federal court abstains, dismissing an action or declining to entertain it because a state tribunal is a more appropriate one for resolving the controversy. A bankruptcy court commonly sends its trustee into state courts to have complex questions of local law adjudicated. Thompson v. Magnolia Co., 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876. A federal court refuses to exercise its equity powers by appointing receivers to take charge of a failing business, where state procedures afford adequate protection to all private rights. Commonwealth of Pennsylvania v. Williams, 294 U.S. 176, 55 S.Ct. 380, 79 L.Ed. 841. A federal court will normally not entertain a suit to enjoin criminal prosecutions in state tribunals, with review of such convictions by this Court being restricted to constitutional issues. Beal v. Missouri Pac. R. Co., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577. A federal court declines to entertain an action for declaratory relief against state taxes because of the federal policy against interfering with them by injunction. Great Lakes Dredge & Dock Co. v. Huffman, 19 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407. Where state administrative action is challenged, a federal court will normally not intervene where there is an adequate state court review which is protective of any federal constitutional claim. Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; Alabama Public Service Comm'n v. Southern R. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002. The examples could be multiplied where the federal court adopts a hands-off policy and remits the litigants to a state tribunal.

Railroad Comm'n of Texas v. Pullman Co., supra, is a different kind of case. There the federal court does not abstain; it does not dismiss the complaint; it retains jurisdiction while the parties go to a state tribunal to obtain a preliminary ruling a declaratory judgment-on state law questions. The reason for requiring them to repair to the state tribunal for a preliminary ruling on a question of state law is because the state law is challenged on federal constitutional grounds; if the state law is construed one way, the constitutional issue may disappear; the federal constitutional question will survive only if one of two or more state-law constructions is adopted. The 'last word' as to the meaning of local law 'belongs neither to us nor to the district court but to the supreme court of Texas,' we said in the Pullman case, 312 U.S., at 500, 61 S.Ct. at 645, 85 L.Ed. 971. We concluded:

'In this situation a federal court of equity is asked to     decide an issue by making a tentative answer which may be      displaced tomorrow by a state adjudication. Glenn v. Field     Packing Co., 290 U.S. 177, 54 S.Ct. 138, 78 L.Ed. 252; Lee v.     Bickell, 292 U.S. 415, 54 S.Ct. 727, 78 L.Ed. 1337. The reign     of law is hardly promoted if an unnecessary ruling of a      federal court is thus supplanted by a controlling decision of      a state court. The resources of equity are equal to an     adjustment that will avoid the waste of a tentative decision      as well as the friction of a premature constitutional      adjudication.' Ibid.

We therefore remanded the case 'with directions to retain the bill pending a determination of proceedings, to be brought will reasonable promptness, in the state court in conformity with this opinion.' Id., 312 U.S., at 501-502, 61 S.Ct., at 646, 85 L.Ed. 971.

I was a member of the Court that launched Pullman and sent it on its way. But if I had realized the creature it was to become, my doubts would have been far deeper than they were.

Pullman from the start seemed to have some qualities of a legal research luxury. As I said in Clay v. Sun Ins. Office, 363 U.S. 207, 228, 80 S.Ct. 1222, 1234, 4 L.Ed.2d 1170 (dissenting opinion):

'Some litigants have long purses. Many, however, can hardly     afford one lawsuit, let alone two. Shuttling the parties     between state and federal tribunals is a sure way of      defeating the ends of justice. The pursuit of justice is not     an academic exercise. There are no foundations to finance the     resolution of nice state law questions involved in federal      court litigation. The parties are entitled-absent unique and     rare situations-to adjudication of their rights in the      tribunals which Congress has empowered to act.'

As recently stated by the late Judge Charles E. Clark of the Second Circuit Court of Appeals, 'As a result of this doctrine, individual litigants have been shuffled back and forth between state and federal courts, and cases have been dragged out over eight- and ten-year periods.' Federal Procedural Reform and States' Rights, 40 Tex.L.Rev. 211, 221 (1961).

Professor Charles A. Wright described the results that occurred when this doctrine was applied to a suit to enjoin the enforcement of a state statute restricting the rights of state employees to join unions: ' *  *  * after five years of litigation, including two trips to the Supreme Court of the United States and two to the highest state court, the parties still had failed to obtain a decision on the merits of the statute.' The Abstention D ctrine Reconsidered, 37 Tex.L.Rev. 815, 818 (1959).

This case raises a question so simple that it at least verges on the insubstantial. The question is whether Louisiana's Medical Practice Act, LSA-Rev.Stat. § 37:1261 et seq. includes chiropractors as practitioners of medicine. The State Board of Medical Examiners, representing the State, says that they are included. The chiropractors say they are not and, if they are, that the Act is unconstitutional. The case was started in May 1957, and here we are nearly seven years later without a decision on the merits.

That seems like an unnecessary price to pay for our federalism. Referral to state courts for declaratory rulings on state law questions is said to encourage a smooth operation of our federalism, as it may avoid clashes between the two systems. But there always have been clashes and always will be; and the influence of the Pullman doctrine has, I think, been de minimis. Moreover, the complexity of local law to federal judges is inherent in the federal court system as designed by Congress. Resolution of local law questions is implicit in diversity of citizenship jurisdiction. Since Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, the federal courts under that head of jurisdiction daily have the task of determining what the state law is. The fact that those questions are complex and difficult is no excuse for a refusal by the District Court to entertain the suit. Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9. We there said:

'The diversity jurisdiction was not conferred for the benefit     of the federal courts or to serve their convenience. Its     purpose was generally to afford to suitors an opportunity in such cases, at their option, to      assert their rights in the federal rather than in the state      courts.' Id., 320 U.S., at 234, 64 S.Ct., at 11, 88 L.Ed. 9.     And see Allegheny County v. Frank Mashuda Co., 360 U.S. 185,      196, 79 S.Ct. 1060, 1067, 3 L.Ed.2d 1163.

The question now presented is how and when one who asserts his 'option' to sue in 'the federal rather than in the state courts,' but who is remitted to the state court for a preliminary ruling, loses his right to return to the federal court for a final adjudication on the constitutional issues.

In Propper v. Clark, 337 U.S. 472, 491, 69 S.Ct. 1333, 1344, 93 L.Ed. 1480, we said that if, on referral of a discrete issue to the state courts, the latter required 'complete adjudication of the controversy, the District Court would perhaps be compelled to stay proceedings in the state court to protect its own jurisdiction.' We went on to say, 'Otherwise in sending a fragment of the litigation to a state court, the federal court might find itself blocked by res judicata with the result that the entire federal controversy would be ousted from the federal courts, where it was placed by Congress.' Id., 337 U.S., at 491-492, 69 S.Ct., at 1344, 93 L.Ed. 1480.

Today we put federal jurisdiction in jeopardy. As the Court says there are many advantages in a federally constructed record. Moreover, federal judges appointed for life are more likely to enforce the constitutional rights of unpopular minorities than elected state judges. Madison stated the problem when the creation of lower federal courts was being mooted:

'What was to be done after improper verdicts, in state     tribunals, obtained under the biased directions of a      dependent judge, or the local prejudices of an undirected      jury? To remand the cause for a new trial would answer no     purpose. To order a new trial at the supreme bar would oblige     the parties to bring up their witnesses, though ever so      distant from the seat of the court. An effective judiciary establishment,     commensurate to the legislative authority, was essential. A     government without a proper executive and judiciary would be      the mere trunk of a body, without arms or legs to act or      more.' 5 Elliot's Debates (Lipp. ed. 1941), p. 159.

Federal judges have come in for a share of criticism in this regard, the charge at times being that on racial issues they have too often 'suffered the federal law to be flouted.' Lusky, Racial Discrimination and the Federal Law, 63 Col.L.Rev. 1163, 1179 (1963). That at times may be the case. But from this vantage point their devotion to the rule of law over-all seems outstanding. We stand to let federal courts lose their command over critical litigation by what we do today. The Court holds that, though the litigant goes to the state court involuntarily, he loses his right to return to the federal court if he submits the local law question and the constitutional questions to the state tribunal without reserving his right to return to the federal forum for a final adjudication. It will often be necessary to submit the local law question in light of the constitutional questions. Indeed it will be prudent to do so in light of Government and Civic Employees Organizing Committee, C.I.O. v. Windsor, supra, where we ruled, 'The bare adjudication by the Alabama Supreme Court that the union is subject to this Act does not suffice, since that court was not asked to interpret the statute in light of the constitutional objections presented to the District Court.' 353 U.S., at 366, 77 S.Ct., at 839, 1 L.Ed.2d 894.

Yet we now hold that if a party, who is sent by the federal court to the state courts for a preliminary ruling, submits the whole problem to those courts-that is, the constitutional as well as the bare bones of the state law question-he is presumed to have elected to try his case there rather than in the federal courts, unless he expressly reserved the right to return to the federal tribunal. Perhaps the Court does that to avoid the consequences of res judicata. But res judicata is not a constitutional principle; it has no higher dignity than the principle we announce today. In Propper v. Clark, supra, we said that to avoid res judicata the District Court should stay the state proceedings. Better that we approve that judge-made procedure than to overlay the treacherous requirement of the Pullman case with this new judge-made requirement.

What we do today makes the Pullman case something of a Frankenstein. Any presumption should work the other way-that he who is required to go to the state courts and does what we require him to do when he gets there, is not there voluntarily and does not forsake his federal suit, unless he does something in the state courts that he is not required to do and that evinces an election to litigate the matter finally and not preliminarily in the state courts.

As, if, and when he exhausts the state procedure and decides to come here, as was done in NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405, he has elected to abandon the federal for the state forum. Id., 371 U.S., at 428, 83 S.Ct., at 335, 9 L.Ed.2d 405. But short of that, he seldom can be said to have made such an election. For when he pursues the matter through the hierarchy of the state courts, he is doing only what he is required to do. The only time when he goes beyond that requirement is when he takes the fork in the read leading here rather than the one to the District Court.

If the Pullman doctrine is to be preserved, we should lighten rather than make more ponderous the procedures which we have been imposing. We have made Pullman mandatory, not discretionary, with the District Courts. As stated in Louisiana P. & L. Co. v. Thibodaux 360 U.S. 25, 28, 79 S.Ct. 1070, 1072, 3 L.Ed.2d 1058, ' * *  * we have required District Courts, and not merely sanctioned an exercise of their discretionary power, to stay their proceedings pending the submission of the state law question to state determination.' So, no matter the ease with which the whole controversy can be resolved, parties are sent their weary and expensive way into the state tribunals. Whether or not we agree with Mr. Justice BLAC that the present case involves no substantial federal question, it certainly borders on the insubstantial; and a District Court, if it has that view of a case, should be allowed in its discretion to decide the whole case at once, avoiding the state litigation completely-free of interference here or in the Court of Appeals.

We have, moreover, extended the Pullman doctrine, contrary to our prior decision in Proper v. Clark, supra, 337 U.S., at 491 492, 69 S.Ct., at 1344-1345, 93 L.Ed. 1480, to cases that involve no shadow of a substantial constitutional issue but only local law questions in the field of eminent domain. Louisiana P. & L. Co. v. Thibodaux, supra. As my Brother BRENNAN said in dissent in that case:

' * *  * the Court attempts to carve out a new area in which,      even though an adjudication by the federal court would not      require the decision of federal constitutional questions, nor      create friction with the State, the federal courts are      encouraged to abnegate their responsibilities in diversity      cases.' 360 U.S., at 36-37, 79 S.Ct., at 1077, 3 L.Ed.2d      1058.

Thus the Pullman doctrine reflects an antipathy to federal courts passing on state law questions.

There have been historic clashes between the federal courts and the States, some of them needless. See Warren, Federal and State Court Interference, 43 Harv.L.Rev. 345 (1930). The examples are numerous. Thus federal courts, free and easy with injunctions, interfered wholesale with public utility rate orders, with efforts of the States to collect their revenue,  and with suits in state courts. Prior to Erie R. Co. v. Tompkins, supra, the 'mischievous results' (304 U.S., at 74, 58 S.Ct., at 820, 82 L.Ed. 1188) of the earlier rule of Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, were apparent, federal courts by their formulation of 'general law' often defeating legitimate state policies. 304 U.S., at 73-78, 58 S.Ct., at 819-822, 82 L.Ed. 1188. Federal courts, inflating the Due Process Clause of the Fourteenth Amendment, became a sort of super-legislature, reviewing the wisdom of a wide variety of state law. See, e.g., Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937; Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813.

Those chapters have ended, sometimes as a result of judicial housekeeping, at other times as a consequence of federal legislation. What mostly remain are clashes and conflicts between State and Nation inherent in the performance of the functions of a referee in the federal system. Such was the unavoidable consequence of the effort of the Marshall Court, beginning at least with Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23, to create a great common market within the grand design of the Commerce Clause. Such is the unavoidable consequence today when Negroes claim the full benefits of the Fourteenth (see Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083), and Fifteenth Amendments. See Alabama v. United States, 5 Cir., 304 F.2d 583, aff'd 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112; United States v. Raines, 362 U.S. 17, 80 S.Ct. 519,  L.Ed.2d 524; United States v. McElveen, D.C., 180 F.Supp. 10, aff'd sub nom. United States v. Thomas, 362 U.S. 58, 80 S.Ct. 612, 4 L.Ed.2d 535.

If we are to retain the Pullman doctrine, I think with all deference, we should make it less of a mandatory and more a discretionary procedure and lighten its requirements, rather than make them stricter.

We should permit the District Court to refer the matter to the state court for a declaratory judgment only where the State offers such relief. Otherwise, we should require that the litigation be conducted in the federal court where Congress decided it could be conducted. In any event we should leave it to the District Court to refuse to refer the matter to the state courts, if, as here, there is no local law question tangled in a maze of state statutes and state decisions.

If we are to retain the Pullman doctrine, we should not weight it down by procedures, which, like today's decision, make it a trap for the unwary.

The Pullman doctrine, as it has evolved, is the least desirable alternative. It is better, I think, for the federal courts to decide local law questions, as they customarily do in the diversity cases, adding at the foot of the decree as Mr. Justice Cardozo, writing for a unanimous Court, did in Lee v. Bickell, 292 U.S. 415, 426, 54 S.Ct. 727, 732, 78 L.Ed. 1337:

' * *  * that the parties to the suit or any of them may apply      at any time to the court below, by bill or otherwise, as they      may be advised, for a further order or decree, in case it      shall appear that the statute has been then construed by the      highest court of Florida as applicable to the transactions in      controversy here.'

Another alternative is for the District Court to follow the certificate route, when one is available. The Florida Supreme Court is authorized to provide by Rule  for answering certificates concerning state law questions tendered by the federal courts. We use that procedure on Florida state law perplexities (Dresner v. Tallahassee, 375 U.S. 136, 84 S.Ct. 235; Aldrich v. Aldrich, 375 U.S. 75, 249, 84 S.Ct. 184, 305). We cannot require the States to provide such a procedure; but by asserting the independence of the federal courts and insisting on prompt adjudications we will encourage its use.

After today's decision, application of the Pullman doctrine to the field of civil rights, particularly to controversies involving the rights of Negroes, will have, I think, serious effects. Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152, and NAACP v. Button, supra, are harbingers of things to come. The complaint in those cases was filed November 28, 1956, and our decision on the merits was not announced until January 14, 1963. In other words, nearly seven years elapsed between the institution of the litigation and an adjudication on the merits. The end product could still be described as a sizable collision between Nation and State.

Cases where Negroes are prosecuted and convicted in state courts can find their way expeditiously to this Court, provided they present constitutional questions. Yet instances where Negroes assert their rights in judicial proceedings will continue to be numerous. Those suits will be civil ones and almost always instituted in the Federal District Courts, since those courts have a special competence in the field and a record of independence protective of the rights of unpopular minorities. That litigation more often than not entails construction of state statutes, city ordinances, state court decisions, rulings of state administrative commissions, and the like. Under the Pullman doctrine a Negro who starts in the federal court soon finds himself in the state court and his journey there may be not only weary and expensive but also long and drawn out. There will be no inclination to expedite his case. The whole weight of the status quo will be on the side of delay and procrastination. What we do today adds to the toll that the Pullman doctrine will take of civil rights.

The Bar is now told that if one repairs to the state courts and submits the state law question along with the federal constitutional questions, he will be presumed to have elected to pursue the state remedy, unless he makes clear a purpose to return to the federal court when the state court has made its ruling. I gather that, without that reservation, the record will be taken to mean that 'he voluntarily litigated his federal claims in the state courts.' Or, if he forgets or fails to make such a reservation, he can still preserve his right to return to the federal court by doing what the Court now says is required of him by Windsor. For he is told today that instead of submitting his federal claims to be 'litigated,' he may submit his state law questions on y for consideration 'in light of' the federal questions. Those who read this opinion may have adequate warning. But this opinion, like most, will become an obscure one-little known to the Bar. Lawyers do not keep up with all the nuances of court opinions, especially those touching on as exotic a rule of federal procedure as the one which we evolve today. I fear therefore that the rule we announce today will be a veritable trap.

The Court recognizes the value to the litigants of being in the federal court. As it says, 'the benefit of a federal trial court's role in constructing a record and making fact findings' is considerable. Ante, at p. 416. A litigant trapped in state court proceedings may find himself veritably encased by findings of fact which no appellate court may disturb. The value of the independence of federal judges, and the value of an escape from local prejudices when fact findings are made are considerable ones. Yet under the rule we announce today, those values promise to be lost in important areas of civil rights.

I mention the time element as one of the evils spun by the Pullman doctrine. Time has a particularly noxious effect on explosive civil rights questions, where the problem only festers as grievances pile high and the law takes its slow, expensive pace to decide in years what should be decided promptly.

The late Judge Charles E. Clark made an apt and pertinent observation on the impact of the Pullman doctrine. At times, he said, 'the upshot inevitably seems to be a negative decision or, in plain language, a defendant's judgment.' Delay which the Pullman doctrine sponsors, keeps the status quo entrenched and renders 'a defendant's judgment' even in the face of constitutional requirements. These evils are all compounded by what we do today, making it likely that litigants seeking the protection of the federal courts for assertion of their civil rights will be ground down slowly by the passage of time and the expenditure of money in state proceedings, leaving the ultimate remedy here, at least in many cases, an illusory one.