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Wednesday, March 16, 2022

The Younger analysis was not much better

Gerard explains why the district court in Cawthorn was wrong on the merits. Here is why the court was wrong in not abstaining under Younger.

    1) The court held that the federal proceedings had gone further and faster than the state proceedings, therefore the federal proceeding did not interfere with the state proceedings. This reverses the presumption that a state proceeding be allowed to continue and that the district court stay its hand. Courts consider the relative progress of the proceedings where the federal action is filed first; courts abstain if the federal action had not gone very far. (This is problematic, because it creates perverse incentives for prosecutors, but it is what we are stuck with). It does not work in reverse; if the state proceeding is filed first, the federal court cannot proceed, full stop.

    2) The court also said the relative progress and the multiple layers of state proceedings meant Cawthorn did not have an adequate opportunity to raise his constitutional arguments i. But adequate opportunity is about whether the party has an opportunity to raise and have resolved issues in the state proceeding, including on subsequent state judicial review of an administrative proceeding. Federal courts do not superintend (otherwise-constitutional) state processes and decline abstention if those state proceedings do not move to the liking of the district court.

    3) The court said this case iimplicates "federal interests in interpreting federal law and the U.S. Constitution." As stated, this swallows Younger. All Younger cases require interpretation of federal law and the U.S. Constitution; if the state proceeding involved only state law, the federal court would not have jurisdiction from which to abstain. So if interpretation of federal law is sufficient, no court would abstain. The whole point of Younger is that any "federal interest" in interpreting federal law is not exclusive or can be satisfied by SCOTUS review of the state proceedings.

The Fourth Circuit should not reach the merits, as Gerard suggests, because abstention, as defined, is warranted here.

Posted by Howard Wasserman on March 16, 2022 at 11:15 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


I appreciate the analysis on this important issue that is otherwise being swallowed up by other developments.

It is but one situation that warrants congressional action and is an example of sound congressional regulation of issues involving the courts in some general fashion.

If abstention is warranted, one broad policy reason is because federal courts should not get involved prematurely. The extra time can be partially used to pass federal regulation, including a bill previously mentioned and supported by Prof. Magliocca.

Posted by: Joe | Mar 16, 2022 3:59:22 PM

I'll take the rare open-comments opportunity to express my appreciation for the analysis. It makes sense to me.

Also, what is meant by "perverse incentives for prosecutors"? That they would bring a prosecution when they otherwise might not be inclined to, because that would make the state case the first-filed one? Please elaborate if you can.

Posted by: kotodama | Mar 16, 2022 3:43:15 PM

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