Scope of Pullman

A puzzle from the Fifth Circuit declining to abstain under Pullman from a constitutional challenge to a state judicial-ethics canon that might prohibit him from declining to perform same-sex weddings.

The court finds Pullman prerequisites--constitutional challenge to ambiguous challenged state law--satisfied. It declines to abstain because of the status of a pending state-court litigation in which a different judge challenged the same canon on state-law grounds. The district court abstained believed this litigation would resolve the meaning and scope of the canon; the court of appeals disagreed on that point, believing other issues might prevent the state courts from reaching the scope issue. Because the other state litigation would not definitively address the state issue in this case, the court would not rely on it.

The point of Pullman is to for the federal plaintiff to litigate his state issues in state court; the point is not to free-ride on other possibly related litigation. The status or scope of another, unrelated state-court case should not affect the court's abstention decision. If this federal plaintiff could get a state-court ruling on an ambiguous state-law issue that might obviate his federal constitutional challenge, the court should abstain.

On a stranger note: The court gets to the same place by certifying the state-law issue in the current case to the Texas Supreme Court. In other words, the court really chose certification over abstention as the mechanism in which the current federal plaintiff will resolve the ambiguous state-law issue. Which perhaps was the right move--courts have not found a good metric for when to abstain and when to certify, as the standards are (or should be) basically the same. Just for the wrong reasons.