Green v. City of Tucson

• Decision Date: 30 November 2000
• Docket Number: DEFENDANT-APPELLEE,No. 99-15625,PLAINTIFFS-APPELLANTS,99-15625
• Citation: 255 F.3d 1086
• Parties: (9th Cir. 2001) ASPEN GREEN, NEALE ALLEN, JON MICHAEL, DORITA BRADY, WALLACE L. CRAIG, JUDY LESTER, RESIDENTS AND QUALIFIED ELECTORS IN TORTOLITA,, v. CITY OF TUCSON, AN ARIZONA MUNICIPAL CORPORATION, Rehearing En Banc Granted
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1086

255 F.3d 1086 (9th Cir. 2001)

ASPEN GREEN, NEALE ALLEN, JON MICHAEL, DORITA BRADY, WALLACE L. CRAIG, JUDY LESTER, RESIDENTS AND QUALIFIED ELECTORS IN TORTOLITA, PLAINTIFFS-APPELLANTS, v. CITY OF TUCSON, AN ARIZONA MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.

No. 99-15625

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Rehearing En Banc Granted November 30, 2000

Argued and Submitted En Banc March 22, 2001--San Francisco, California

Filed July 9, 2001

[Copyrighted Material Omitted]

Anthony B. Ching, Tempe, Arizona; William J. Risner, Risner & Graham, Tucson, Arizona, for the plaintiffs-appellants.

Dennis B. McLaughlin, Tucson, Arizona, for the defendant-appellee.

Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge Presiding D.C.No. CV-98-443-TUC/RCC

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson, Stephen S. Trott, Andrew J. Kleinfeld, Michael Daly Hawkins, Susan P. Graber, Kim McLane Wardlaw, William A. Fletcher, Raymond C. Fisher, Richard A. Paez and Marsha S. Berzon, Circuit Judges.

Berzon, Circuit Judge.

OPINION

While litigation concerning the constitutionality of a state statute was pending in state court, four individual plaintiffs filed this federal court challenge to the same statute, alleging similar constitutional defects to those alleged by the state court litigants.The district court dismissed the case, holding that because the federal courtplaintiffs could have intervened in the state court proceedings, they were obligated to do so, and could not proceed in federal court.

This case thus raises questions at the core of the interaction of our dual system of courts, state and federal.Each system is competent to decide federal constitutional issues, and each is entrusted with doing so in appropriate cases.The question whether, in the interests of judicial efficiency and of comity, federal courts should refuse to decide cases within their constitutionally-and congressionally-conferred jurisdiction has been a recurring one.SeeQuackenbush v. Allstate Ins. Co., 517 U.S. 706(1996);New Orleans Pub. Serv. Inc. v. Council of the City of New Orleans, 491 U.S. 350(1989)("NOPSI");Colo. River Water Conservation Dist. v. United States, 424 U.S. 800(1976);Younger v. Harris, 401 U.S. 37(1971);Burford v. Sun Oil Co., 319 U.S. 315(1943);R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496(1941).Repeatedly, the Supreme Court has informed us that, although there are limited circumstances in which such abstention by federal courts is appropriate, those circumstances are "carefully defined" and "remain `the exception, not the rule,' "NOPSI, 491 U.S. at 359(quotingHawaiian Housing Auth. v. Midkiff, 467 U.S. 229, 236(1984)), and that as a general matter, "the federal courts' obligation to adjudicate claims within their jurisdiction [is]`virtually unflagging.' "Id.(quotingDeakins v. Monaghan, 484 U.S. 193, 203(1988));see alsoQuacken-bush, 517 U.S. at 716;Colorado River, 424 U.S. at 821.

To separate the tightly circumscribed circumstances in which it is appropriate for a federal court to dismiss a case properly within its jurisdiction from the basic principle that federal court jurisdiction is mandatory and must be exercised, this court has tended to distill the relevant factors into multifactor tests.See, e.g., Fresh Int'l Corp. v. Agric. Labor Relations Bd., 805 F.2d 1353, 1357-58(9th Cir.1986)(stating three-factor test for application of Younger abstention);Confederated Salish v. Simonich, 29 F.3d 1398, 1407(9th Cir.1994)(stating three-factor test for application of Pullman abstention).As is often the case with such attempts to create analytic aids to deciding complex issues, however, these standards have not always captured all the relevant factors, and thus may have obscured rather than clarified the path to proper judicial decisionmaking.We are not alone in recognizing that multi-factor tests are prone to "mechanical application that overlooks or underemphasizes the most important features of the . . . inquiry."Daniels v. Essex Group Inc., 937 F.2d 1264, 1271(7th Cir.1991).

The result of this oversimplification has been a tendency for the district courts, and this court, to lose their way in the maze of various abstention doctrines, with the consequence that litigants who had properly invoked federal court jurisdiction are improperly relegated to an exclusive state court remedy for claimed violations of their federal constitutional rights.This case, we conclude, is such an instance: The district court--understandably, given some mixed signals in our case law--misapplied the abstention doctrine derived from Younger v. Harris to a situation far outside that doctrine's limited scope as delineated by the Supreme Court.We therefore reverse the decision to abstain under Younger and remand for further proceedings.

Background

In 1997, seventy-two percent of the qualified voters who reside in an area of Pima County, Arizona, known as the Tortolita community petitioned for incorporation.Under Ariz. Rev. Stat. §§ 9-101.01(A), when more than two-thirds of the qualified electors in an area otherwise eligible for incorporation so petition, the county board of supervisors is required to "declare the community incorporated as a city or town."The Pima County Board of Supervisors accordingly declared the Town of Tortolita incorporated on September 2, 1997, and appointed an interim town council.

The matter of Tortolita's incorporation was, however, far from settled by that declaration.Instead, both before and after the official date of incorporation, Tortolita's fate was embroiled in a complex series of legislative and judicial decisions.

Arizona law has provided since 1961 that a territory within six miles of an incorporated city or town having a population of five thousand or more cannot be incorporated without the consent of the city or town.The boundaries of the Town of Tortolita are less than six miles from the northern boundary of the City of Tucson.Tucson has not consented to the formation of the Town of Tortolita; indeed, according to the plaintiffs in this case, Tucson has never consented to the incorporation of any neighboring communities.

In its 1997 session, to smooth the incorporation of areas such as Tortolita the Arizona legislature enacted a statute suspending the consent requirement for new incorporations "within six miles of an incorporated city or town having a population of five thousand or more persons . . . that is within a county having a population of more than five hundred thousand but less than one million persons."1997 Ariz. Sess. Laws ch. 204 §§ 2.Pima County is the only county in Arizona that meets the statutory criteria.The very day that this enactment became effective, Tucson challenged it in a state court action against the State and Pima County, maintaining that the statute was inconsistent with two Arizona constitutional prohibitions against special laws concerning municipal incorporation.SeeAriz. Const. art. 4, part 2,§§ 19;Ariz. Const. art. 13, §§ 1.

The Committee to Incorporate the Town of Tortolita("Tortolita") thereupon intervened as a defendant in the state court proceedings.Tortolita -as well as Pima County and another intervenor¹ -counterclaimed against Tucson, claiming that the 1961statute requiring Tucson's consent for incorporation of nearby communities violates the Fourteenth Amendment's Due Process and Equal Protection Clauses, as well as the Guaranty Clause, U.S. Const. art. IV,§§ 4.²The Arizona Superior Court upheld the 1997 exception to the consent requirement, however, and so did not reach the constitutionality of the consent requirement itself.While the City's appeal from this ruling was pending, Pima County declared the Town of Tortolita incorporated.

Shortly thereafter, on November 12, 1997, the Arizona Court of Appeals reversed the Superior Court judgment, holding that the 1997enactment"is an unconstitutional special and local law" and that "[n]o incorporation which has occurred pursuant to the statute is valid."City of Tucson v. Woods, 191 Ariz. 523, 532, 959 P.2d 394, 403(Ariz. Ct. App.1997).After the Arizona Supreme Court denied review, the case was returned to the Superior Court which, after some procedural squabbling, indicated on September 28, 1998, that it would now entertain the Pima County and Tortolita challenges to the 1961 consent statute.

Just before that, however, on September 23, this action was filed in federal court.The present plaintiffs are all residents of and qualified voters in the area declared incorporated as Tortolita, but none of the individual plaintiffs was, at the time this case was filed, or later became, a party to the state court proceedings.³In their complaint, the plaintiffs alleged that they"participated in the political dialogue and . . . exercised their franchise to vote for the incorporation of Tortolita by circulating and signing petitions for incorporation and have sought to enjoy the benefits of self-government and self-determination" and that the state law that frustrated the incorporation effort is an unconstitutional infringement of their right to vote, violating the Equal Protection and Due Process Clauses of the Fourteenth Amendment as well as the Guaranty Clause.Plaintiffs sought a declaration that Ariz. Rev. Stat. §§ 9-101.01 is unconstitutional, a permanent injunction against the statute's operation, a declaration that Tortolita was validly incorporated in September 1997, and unspecified damages.

Tucson answered on the merits, but also raised as a defense the contention that the district court should abstain from deciding this case on several grounds, among them the abstention doctrine derived from Younger v. Harris.After the parties filed motions and cross-motions for summary judgment, not raising any abstention issue, the district court directed the parties to...