Guiney v. Roache

• Decision Date: 16 September 1987
• Docket Number: No. 87-1219,87-1219
• Citation: 833 F.2d 1079
• Parties: , 2 Indiv.Empl.Rts.Cas. 1225 Robert T. GUINEY, etc., Plaintiff, Appellant, v. Francis M. ROACHE, etc., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1079

833 F.2d 1079

56 USLW 2353, 2 Indiv.Empl.Rts.Cas. 1225

Robert T. GUINEY, etc., Plaintiff, Appellant, v. Francis M. ROACHE, etc., Defendant, Appellee.

No. 87-1219.

United States Court of Appeals First Circuit.

Heard Sept. 16, 1987.

Decided Dec. 2, 1987.

Frank J. McGee with whom Steven M. Guiney and McGee & Phillips, Marshfield, Mass., were on brief, for plaintiff, appellant.

Marjorie Heins, Massachusetts Civil Liberties Union Foundation, Boston, Mass., and James Newman on brief for the Civil Liberties Union of Massachusetts, amicus curiae.

Robert Carty, Hyde Park, Mass., with whom Kevin S. McDermott and James F. Hart, Office of the Legal Advisor, Boston Police Department, Boston, Mass., were on brief, for defendant, appellee.

Before COFFIN, ALDRICH and TORRUELLA, Circuit Judges.

COFFIN, Circuit Judge.

Plaintiff brought an action challenging, on federal constitutional grounds, Boston Police Department Rule 111, which authorizes urinalysis drug testing of Department employees. After a trial on the merits, the district court decided sua sponte to abstain from the exercise of federal jurisdiction, on the authority of Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). See Guiney v. Roache, 654 F.Supp. 1287 (D.Mass.1987). Plaintiff now appeals the district court's order dismissing the case. We conclude that abstention was improper and vacate the district court's order.

I.

In April of 1986, the defendant, Police Commissioner of the City of Boston, issued Rule 111, which authorized urinalysis drug testing of Department employees on both a reasonable-suspicion and a random basis. A positive test result would lead to the employee's being charged with unauthorized use of illegal drugs and conduct unbecoming an employee. If the Department could prove the violations were knowing, the employee would be subject to discipline, including discharge. See Guiney, 654 F.Supp. at 1289-94 (quoting Rule 111 in full). Refusal to take the test, the parties stipulate, could also lead to discharge or other discipline.

Plaintiff is president and a member of the Boston Patrolmen's Association, Inc., a labor organization consisting of some 1500 Boston police patrolmen. He brought an action for declaratory and injunctive relief in the district court, claiming that Rule 111 permitted unreasonable searches and seizures in violation of the fourth and fourteenth amendments to the federal constitution. Defendant agreed not to enforce Rule 111 pending the district court's ruling.

After a trial on the merits, the district court decided, sua sponte, to abstain on Pullman grounds. The court reasoned, first, that the Massachusetts courts might be able to resolve the case on state constitutional grounds and, second, that the Massachusetts courts were better suited to resolve certain factual issues in the case. We consider each of these points in turn and then conclude by addressing additional arguments advanced by defendant in favor of dismissal.

II.

We start with the proposition that "[a]bstention from the exercise of federal jurisdiction is the exception, not the rule." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). " 'Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest.' " Id. (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1062-63, 3 L.Ed.2d 1163 (1959)). The Pullman variety of abstention is appropriate in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent, but unsettled, state law. Where state law is unsettled, a federal court's resolution of the state law question will inevitably be "a forecast rather than a determination," Pullman, 312 U.S. at 499, 61 S.Ct. at 645, "a tentative answer which may be displaced tomorrow by a state adjudication." Id. at 500, 61 S.Ct. at 645. Because the state adjudication might alter or moot the federal constitutional question, Pullman abstention serves a dual purpose: it "avoid[s] the waste of a tentative decision as well as the friction of a premature constitutional adjudication." Id.

Sometimes Pullman abstention is appropriate because the federal claim is "entangled in a skein of state law that must be untangled before the federal case can proceed." McNeese v. Board of Education, 373 U.S. 668, 674, 83 S.Ct. 1433, 1437, 10 L.Ed.2d 622 (1963) (emphasis added). But that is not the case here; plaintiff's complaint does not attack Rule 111's validity under any provision of state law, and there is no real dispute over the meaning of Rule 111. ¹ Because there is no need to forecast state law, there is no risk of the friction that might be occasioned by such a forecast and no risk that the district court's decision might "be displaced tomorrow by a state adjudication." Pullman, 312 U.S. at 500, 61 S.Ct. at 645.

The district court's decision to abstain relied not upon any ambiguity in Rule 111 itself, but upon a variant of the Pullman doctrine holding that abstention may be appropriate when "the uncertain status of local law stems from the unsettled relationship between the state constitution and a statute." Harris County Comm'rs Court v. Moore, 420 U.S. 77, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975). Here, the district court reasoned that Rule 111 might be held violative of the Massachusetts Constitution's Declaration of Rights, Article 14, which declares in relevant part that "[e]very subject has the right to be secure from all unreasonable searches, and seizures, of his person...." The Massachusetts Supreme judicial Court has held that Article 14 "provides more substantive protection to criminal defendants than does the Fourth Amendment in the determination of probable cause." Commonwealth v. Upton, 394 Mass. 363, 373, 476 N.E.2d 548, 556 (1985). On this basis the district court found "a real possibility that Rule 111 could be held to violate Article 14 regardless of whether or not it violates the Fourth and Fourteenth Amendments." Guiney, 654 F.Supp. at 1299. The district court thus abstained, giving the Massachusetts courts an opportunity to consider the state constitutional question and thereby possibly to alter or moot the federal constitutional question.

We think the district court construed too broadly the circumstances in which abstention is appropriate for the purpose of obtaining an authoritative interpretation of a state constitutional provision. In Harris County, 420 U.S. 77, 95 S.Ct. at 872, the issue was a unique Texas constitutional provision granting job security to constables and justices of the peace. Similarly, in Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970), the Court ordered abstention in order to obtain a construction of unique Alaska state constitutional provisions protecting fishing rights. And in City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959) (per curiam), abstention was appropriate because the case involved a unique Mississippi constitutional provision providing that utilities, through their own conduct, could forfeit state-granted contract rights. See Southern Bell Tel. & Tel. Co. v. City of Meridian, 154 F.Supp. 736, 737-38 (S.D.Miss.1957) (discussing Section 179 of the Mississippi constitution), aff'd, 256 F.2d 83 (5th Cir.1958), vacated and remanded, 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959) (per curiam).

Under Harris County, Reetz, and City of Meridian, it is not the uniqueness per se of a state constitutional provision that makes abstention appropriate. These cases merely demonstrate that state constitutional provisions that are unique are, for that very reason, less likely to have been authoritatively construed by the state's highest court and less likely to be familiar to federal courts than are state constitutional provisions that are directly parallel to federal constitutional guarantees. In other words, where the state constitutional provision bearing on a case is unique, there is more likely to be an "unsettled relationship between the state constitution and a statute." Harris County, 420 U.S. at 84, 95 S.Ct. at 876. Still, it is only "where the challenged statute is part of an integrated scheme of related constitutional provisions, statutes, and regulations, and where the scheme as a whole calls for clarifying interpretation by the state courts" that abstention is appropriate. Harris County, 420 U.S. at 85 n. 8, 95 S.Ct. at 876 n. 8 (emphasis added). If, despite the provision's uniqueness, no such clarifying interpretation is necessary, then there is no reason to abstain; the federal court may simply proceed to apply state law, if this will alter or moot the federal constitutional claim.

This doctrine of abstention has its corollary in the rule that "abstention is not required for interpretation of parallel state constitutional provisions." Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 237 n. 4, 104 S.Ct. 2321, 2327 n. 4, 81 L.Ed.2d 186 (1984) (citing cases) (emphasis added). This rule simply recognizes that where state and federal constitutional provisions are parallel, the state provision is unlikely to be any more ambiguous than the federal provision, and abstention is unnecessary. ² Thus the Court has "declined to order abstention where the federal [constitutional] claim was not complicated by an unresolved state-law question, even though the plaintiffs might have sought relief under a similar provision of the state constitution." Harris County, 420 U.S. at 84 n. 8, 95 S.Ct. at 876 n. 8 (explaining Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971)). A contrary result "would convert abstention from an exception into a...