A Blueprint for Avoiding the Younger v. Harris ‘Doctrine’ In Some Cases

The U.S. Court of Appeals for the 3rd Circuit last month enjoined a Pennsylvania county prosecutor’s office from indicting teenage girls who had sued in federal court because their county’s prosecutor was threatening “sexting” indictments unless the girls agreed to attend a months-long class devised by the prosecutor to educate the girls about the prosecutor’s sense of sexual morality for teen girls. The case is Miller v. Mitchell.

The court’s opinion gained widespread attention in legal circles. And not only because it concerned the hot topic of teen sexting. The ruling was based, surprisingly, not on grounds specific to sexting but instead on the prosecutor’s interference with what the court said was the kids’ parents’ constitutional right to decide, free of state interference, what “ideas of morality and gender roles” their children will be taught. And on what the basis that the prosecutor’s indoctrination-by-extortion plan violated what the court said was the kids’ free speech rights to not be compelled by the state to write a mea culpa essay in conformance with the prosecutor's sense of morality.

The opinion is being hailed as a civil rights victory. And it is a civil rights victory, but not just for the obvious reasons. Other civil rights advocates thought, “This is a big free-speech victory." And, “This is a big parents’-rights victory.” Me? I thought, “This sets a blueprint for avoidance of the Younger doctrine.”

The Younger doctrine?

The Supreme Court regularly engages in the extracurricular activity of proclaiming court-created ‘doctrines’ that undermine the Civil Rights Act of 1871, 42 U.S.C. § 1983, the statute that is the main federal statute that provides for access to federal court in order to challenge the constitutionality of a federal, state or local law or government policy, or an action of a particular government official or employee.

One of those court-created doctrines is the “Younger abstention doctrine,” named for a 1971 Supreme Court opinion called Younger v. Harris, 401 U.S. 37(1971), the case in which the doctrine originated. The essence of that doctrine originally was that, in the name of neo-federalist comity toward states, federal courts are required to “abstain” from hearing any civil rights claims brought by a person who is currently being prosecuted for a matter arising from that claim. The Supreme Court later expanded the doctrine to require the lower federal courts to abstain from hearing constitutional challenges to a state court’s procedural or substantive handling of civil cases during the pendency of the case in state court. The doctrine does have a few eye-of-the-judicial-beholder exceptions, which are rarely invoked.

The companion court-created Rooker-Feldman doctrine is (erroneously) interpreted by the lower federal courts to prohibit them from hearing such constitutional claims in civil lawsuits once the state-court case is over, ostensibly for lack of subject-matter jurisdiction. (Rooker-Feldman will be the subject of a later article.) Habeas corpus law does allow challenges to the constitutionality of state-court criminal proceedings once the state-court appellate process is completed, but the two doctrines combine to effectively remove constitutional restraints from the judicial branches of state governments in civil cases.

The Supreme Court has never explained why it believes that these types of court-created federalist comity should apply to state judicial branches but not to the other two branches of state government. But I suspect it is a matter of professional courtesy. Or a matter of what they think they can get away with without dismay from the public. The very purpose of this jurisprudential “federalism” ideology is to flip the meaning of the Constitution’s Supremacy clause.

Justice Clarence Thomas, a professed originalist/testualist, speaks, for example, eloquently about what he and other federalists call the “dignity” of the states as sovereigns that will suffer humiliation by interference from a federal court. The dignity of the states trumps the dignity of the individual. Unless some specific right dear to his particular heart is at issue. Think Second Amendment. Or Fifth Amendment’s “takings” rights.

The kids who along with their parents sued in Miller were lucky. Had they waited until an indictment was issued, they could not have challenged the constitutionality of the criminal statute as it was being applied to them, and they could not have challenged the constitutionality of the prosecutor’s conduct, however bizarre and clearly violative of constitutional rights. The Younger doctrine would have prevented it. They would have had to endure a full prosecution and, if convicted, years of appeals, and if necessary, the years-long federal habeas process, in order to test in federal court the constitutionality of the prosecutor’s actions. Instead, because they filed their lawsuit before any indictment was issued, the legal process for them ended swiftly with a federal-court-issued temporary restraining order.

The moral of this story is that individuals who are in danger of prosecution under a statute they wish to challenge as unconstitutional, or who want to contest the constitutionality of the prosecutor’s conduct of the investigation, have a blueprint for avoiding the Younger doctrine: they can file their lawsuit under § 1983 before the indictment is filed in state court.

In civil (non-criminal) matters, though, the dignity of the states will have to rest upon the continued evisceration of § 1983 and the Supremacy Clause.