A South Carolina FOIA request by radio personality Rocky Disabato (“Rocky D”) has resulted in a Fourth Circuit ruling that adopts an expansive view of the circumstances in which it is appropriate for the federal courts to abstain under Younger v. Harris. Judge Wynn wrote the unpublished opinion in South Carolina Association of School Administrators v. Disabato, which was joined in by Chief Judge Traxler and Judge Wilkinson. (See here for an article about the parallel state litigation by Schuyler Kropf in The Post and Courier, and here, here, and here, for criticisms of the state trial court decision.)
After the Association brought a successful legal action against then-Governor Mark Sanford to obtain funds for education, Disabato sent the Association a public records request pursuant to the South Carolina Freedom of Information Act (“SC FOIA”). The Association responded that it was not subject to the SC FOIA.
On December 7, 2009 Disabato filed suit in the Charleston County Court of Common Pleas to obtain the records he sought.
On February 2, 2010, the Association brought a federal declaratory judgment action seeking a declaration that the SC FOIA was unconstitutional as applied to it as a purportedly public corporation. The federal DJ complaint alleged that application of the SC FOIA to non-profit corporations engaged in political speech and issue advocacy violates the First Amendment.
Disabato moved the federal court to abstain and dismiss. On April 22, 2010, the district court granted Disabato’s motion and dismissed the case based on Younger abstention. (The district court also ruled that Pullman abstention applied, but that ground would have been insufficient for dismissal, as a federal court that abstains under Pullman should stay rather than dismiss.)
The Fourth Circuit’s decision affirming the district court’s Younger-based dismissal rests on a broad understanding of Younger abstention. As the court notes, Younger abstention has migrated outside the context of pending state criminal proceedings.
In Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987), the Supreme Court held Younger abstention to be appropriate in a civil case involving only private parties. After losing a multi-billion dollar case in Texas state court, Texaco brought a federal action in New York seeking to enjoin Pennzoil from enforcing its post-judgment rights to place liens on Texaco’s real property in Texas and to begin levying on Texaco’s Texas assets unless Texaco posted a bond (which Texaco argued it could not afford to post). Although the state was not a party in Pennzoil, the opinion emphasized that the federal proceeding interfered with the state’s interest in enforcing the judgments of its courts. The principal state interest at issue in Disabato, by contrast, appears to be in state courts being able to interpret and apply the SC FOIA in private-party litigation. That interest, standing alone, is insufficient under Pennzoil. Answering a charge of Justice Stevens in dissent, the opinion for the Court stated in a footnote that “the State of Texas has an interest in this proceeding ‘that goes beyond its interest as adjudicator of wholly private disputes.’ Our opinion does not hold that Younger abstention is always appropriate whenever a civil proceeding is pending in a state court. Rather, as in Juidice, we rely on the State’s interest in protecting ‘the authority of the judicial system, so that its orders and judgments are not rendered nugatory.'” Pennzoil, 481 U.S., at 14 n.12.
Another state interest at issue in Disabato is in the constitutionality of the SC FOIA. But the state would be able to protect that interest in federal court, if need be.
The best explanation for the Fourth Circuit’s decision is a constitutional avoidance rationale, which fits more neatly into Pullman abstention. As the Court noted in Pennzoil, however, “considerations similar to those that mandate Pullman abstention are relevant to a court’s decision whether to abstain under Younger. Cf. Moore v. Sims, 442 U. S. 415, 428 (1979). The various types of abstention are not rigid pigeonholes into which federal courts must try to fit cases. Rather, they reflect a complex of considerations designed to soften the tensions inherent in a system that contemplates parallel judicial processes.” Pennzoil, 481 U.S., at 11 n.9.
While constitutional avoidance is a sensible grounds for abstention, there is a twist in this case in that the federal plaintiff is a “public body” under state law. While not the State itself, the Association is a “public body” subject to the SC FOIA, and the Association wants a federal forum. To the extent that the comity rationale for abstention indicates respect for the forum choices of the state, perhaps the Association’s choice of a federal forum should be given some weight.
In any event, the expansion of Younger seems unnecessary to support the outcome. It might have been more prudent doctrinally if the court had instead affirmed dismissal based on the discretion of federal courts to refuse to entertain declaratory judgment actions. See, e.g., Wilton v. Seven Falls Co., 515 U.S. 277, 286-87 (1995). That would not have required breaking any new legal ground.
Having pursued the analysis this far, I acknowledge in conclusion that this parsing of various grounds for abstention may reflect too much concern with the “rigid pigeonholes” that the Court warned against in Pennzoil. Because the opinion is unpublished, the new legal ground broken in Disabato does not necessarily mark a permanent change in the landscape of abstention doctrine. It is a fascinating case nonetheless, at least for those of us who find this kind of thing fascinating (and let’s face it, if you’ve read this far, you just might be one of those people).