William Pietzsch v. Jim Mattox

719 F.2d 129, 1983 U.S. App. LEXIS 15355

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 10, 1983
• Docket: 83-2063
• Status: Published

Opinions

JOHN R. BROWN, Circuit Judge:

Appellants William Pietzseh and Joseph Sullivan, supporters of the Revolutionary Communist Party and sidewalk sellers of its weekly newspaper, Revolutionary Worker, filed an action under 42 U.S.C. § 1983, seeking declaratory and injunctive relief to prevent enforcement of Tex.Penal Code Ann. §§ 42.03 and 42.04 (Vernon 1974), Texas statutes prohibiting the obstruction of highways and public passageways. Appellants contended the two statutes were unconstitutionally vague and overbroad, thus violating the First and Fourteenth Amendments to the United States Constitution. The United States District Court held that it had jurisdiction since appellants had raised a substantial question in challenging the statutes, and held that appellants had standing by virtue of their real interest in the constitutionality and interpretation of the statutes. However, the Court invoked the doctrine articulated in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), and abstained from judgment on the constitutionality of the Texas laws. The Court stated that the suit presented unsettled issues of state law on which Texas courts had had no opportunity to rule. Therefore, the Court reasoned, due to the pendency in the Texas appellate courts of a case involving the identical constitutional challenge to the two statutes, the Texas court's should be afforded the initial opportunity to interpret the challenged statutes, and abstention by the federal court was proper. From this judgment, appellants Pietzseh and Sullivan appeal.

The judicially-created doctrine of abstention, first fashioned in Pullman, is circumscribed to constitutional challenges posing “special circumstances”. Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444, 450 (1967). In order for the abstention doctrine to be applied, the court must be convinced that at least one of the three factors identified in Pullman are present:

1) whether the disposition of a question of state law involved in the case can eliminate or narrow the scope of the federal constitutional issue;

2) whether the state law question presents difficult, obscure or unclear issues of state law; or

3) whether a federal decision could later conflict with subsequent state court resolutions concerning the same regulatory program or scheme, thus engendering more confusion.

As a result of its narrow scope, abstention is the exception rather than the rule. High Ol' Times, Inc. v. Busbee, 621 F.2d 135, 139 (5th Cir.1980). By virtue of the discretion afforded to the District Court in abstention questions, our review inquires whether the Court abused its discretion. Chancery Clerk of Chickasaw County, Mississippi v. Wallace, 646 F.2d 151, 154 (5th Cir.1981). See also Duncan v. Poythress, 657 F.2d 691, 696 (5th Cir.1981).

Though the District Court recognized the substantial authority counseling against abstention in suits challenging the facial constitutionality of state laws, in addition to the costs which flow from abstention in cases reviewing statutes that have an allegedly chilling effect on First Amendment rights, the Court cited Ziegler v. Ziegler, 632 F.2d 535, 539 (5th Cir.1980) for the proposition that the arguments for abstention are compelling where there is already pending a state court action that is likely to resolve the state law issue. Appellant correctly states that the Texas Court of Criminal Appeals, in Haye v. State, 634 S.W.2d 313 (Tex.Cr.App.1982), rendered a decision on § 42.03. However, a reading of Haye shows that, though the court held § 42.03 not to violate the First Amendment, it did not review both §§ 42.03 and 42.04 on the issues of vagueness and overbreadth, the two specific complaints they bring in this case. The rule is clear that:

[w]here a state statute, not yet construed by the state courts, is susceptible of one construction that would leave it free of constitutional infirmity and of another construction that might not, then the District Court should stay its hand in favor of a state court determination of the statute’s meaning. The federal court should not place itself in the position of holding the statute unconstitutional by giving it the latter construction only to discover that the state courts would give it the former.

*

[w]here as here, there is already pending a state action that is likely to resolve the state question without the commencement of new proceedings in state court, the argument in favor of abstention is even more compelling.

Ziegler, 632 F.2d at 538, 539. In the instant case, appellants point out that the same allegations of statutory vagueness and overbreadth are being raised by their associates in a case now pending before the Texas Court of Appeals for the Fourteenth Supreme Judicial District. For this reason, the trial court correctly concluded that the Texas courts might interpret the statutes in a manner that will moot or alter the plaintiffs’ constitutional vagueness and over-breadth claims, and it properly abstained from rendering a judgment on the two statutes.

In finding no abuse of discretion by the court below, we underscore that abstention “does not, of course, involve the abdication of federal jurisdiction, but only the postponement of its exercise.... ” Ziegler, 632 F.2d at 538; Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152, 1158 (1959).

The judgment is affirmed.

AFFIRMED.