Hughes v. Lipscher

• Decision Date: 29 June 1990
• Docket Number: No. 89-5916,89-5916
• Citation: 906 F.2d 961
• Parties: 54 Empl. Prac. Dec. P 40,050 Marie Williams HUGHES and Joseph P. Hughes v. Robert D. LIPSCHER, Individually and in his official capacity as Director of the Administrative Office of the Courts, State of New Jersey; Conrad J. Roncati, Individually and in his official capacity as Bergen County Trial Court Administrator, Superior Court of New Jersey; and Stephen W. Townsend, Individually and in his official capacity as Clerk of the Supreme Court of New Jersey. Appeal of Robert D. LIPSCHER, Director of the Administrative Office of the Courts, Conrad J. Roncati, Bergen County Trial Court Administrator, and Stephen W. Townsend, Clerk of the Supreme Court of New Jersey.
• Court: U.S. Court of Appeals — Third Circuit

Page 961

906 F.2d 961

54 Empl. Prac. Dec. P 40,050

Marie Williams HUGHES and Joseph P. Hughes v. Robert D. LIPSCHER, Individually and in his official

capacity as Director of the Administrative Office of the

Courts, State of New Jersey; Conrad J. Roncati,

Individually and in his official capacity as Bergen County

Trial Court Administrator, Superior Court of New Jersey;

and Stephen W. Townsend, Individually and in his official

capacity as Clerk of the Supreme Court of New Jersey.

Appeal of Robert D. LIPSCHER, Director of the Administrative

Office of the Courts, Conrad J. Roncati, Bergen County Trial

Court Administrator, and Stephen W. Townsend, Clerk of the

Supreme Court of New Jersey.

No. 89-5916.

United States Court of Appeals, Third Circuit.

Argued May 14, 1990.

Decided June 29, 1990.

Robert J. Del Tufo, Atty. Gen. of New Jersey, Michael L. Diller (argued), Deputy Atty. Gen., Michael R. Clancy, Asst. Atty. Gen. of Counsel, Dept. of Law & Public Safety, Trenton, N.J., for appellants.

Kevin H. Marino (argued), Steven L. Lapidus, Lisa A. Carey, Robinson, Wayne & La Sala, Newark, N.J., for appellees.

Before MANSMANN, SCIRICA and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

A directive of the Administrative Office of the New Jersey courts prohibits the appointment of a municipal court clerk who is married to a police officer. An incumbent clerk married a member of the police department and challenged the directive on federal and state constitutional, as well as state statutory, grounds. Declining to abstain, the district court ruled that the regulation violated the federal constitution, and enjoined its enforcement. 720 F.Supp. 454. We will vacate the court's order and remand for abstention pending a decision of the state Supreme Court.

Plaintiff Marie Williams Hughes first began employment with the Municipal Court of the Borough of North Arlington, Bergen County, New Jersey, in 1975 as a clerk-typist. Two years later she became the acting court clerk, and was appointed clerk of the court in July 1981. She has served in that capacity to the present time.

On July 17, 1988 Marie married plaintiff Joseph Hughes, a member of the North Arlington Police Department since 1971. The plaintiffs' marriage brought into question the effect of a bulletin letter issued by the Administrative Office of the Courts of New Jersey in May 1977, stating in pertinent part:

"The Supreme Court [of New Jersey] has considered various problems that may arise when the spouse or parent or child of an enforcement officer serves as a court clerk or deputy court clerk in a municipal court where the officer serves on the police force in that municipality. The Court has indicated that after August 1, 1977 no court clerk or deputy court clerk of a municipal court may be appointed or designated if that person has a spouse, parent or child who is or becomes a police officer serving on the police force in that municipality. If such situations exist on or before August 1, 1977 they may continue provided that court clerks or deputy court clerks of any municipal court should not prepare or complete the jurat on any complaint nor sign an arrest warrant nor fix bail involving any local, county or state officer who is his or her spouse, parent or child. In these situations the court clerk or deputy court clerk, who is not so related to the officer should perform these acts. If necessary, the judge or acting judge should be called upon to perform these acts."

Administrative Office of the Courts of New Jersey, Municipal Court Bulletin Letter No. 5/6-77 (1977). The Administrative Office later issued another directive reaffirming the 1977 bulletin and extending its policy to cohabitation situations substantially similar to that of a marital relationship.

A few weeks after the wedding, a North Arlington Municipal Court judge inquired of the Assignment Judge of Bergen County whether the directive applied to Mrs. Hughes. Defendant Conrad Roncati, the Bergen County Trial Court Administrator, responded that he believed plaintiff was bound by the bulletin and directed, "Pending resolution of this matter the Clerk is to be recused from any matter involving the spouse in Municipal Court." When plaintiffs notified local officials of their intention to challenge the bulletin as applied to them, the Borough Administrator of North Arlington wrote to Roncati advising that "[t]he Mayor and Council have no problem whatsoever with Mrs. Hughes remaining as Court Clerk until the matter is resolved." The municipal court and Mrs. Hughes have since adhered to the recusal policy suggested by defendant Roncati.

Plaintiffs neither pursued any state administrative remedies nor requested a ruling from defendant Robert Lipscher, the Director of the Administrative Office of the Courts of New Jersey. Nor did they begin any action in the state courts. Instead, they filed a suit in the district court seeking declaratory and injunctive relief. In their complaint, plaintiffs alleged that the bulletin violated their marital rights as guaranteed by the Due Process and Equal Protection clauses of the federal constitution as well as article I, paragraph 1 of the New Jersey Constitution. Plaintiffs also asserted claims under the New Jersey Law Against Discrimination, N.J.Stat.Ann. Secs. 10:5-1 to -42 (West 1976 & Supp.1989), which prohibits discrimination on the basis of marital status, id. Secs. 10:5-3, -4.

The district court denied the defendants' motion for abstention, reasoning that the case did not come within the doctrine as established under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); or Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). With respect to Pullman abstention specifically, the court concluded that the "provisions of the Bulletin Letter are clear and straightforward," thus obviating the need to "look to the state courts for an authoritative construction of the regulation."

Proceeding to the merits, the district judge characterized the right to marry as "fundamental," which, under a strict scrutiny analysis, requires the state to demonstrate a compelling interest and the lack of a less restrictive alternative to protect that concern. The court determined that the directive imposed a "substantial and significant interference [on] the right to marry" and that the state's objective of eliminating the appearance of impropriety or bias in the municipal court system, although "an important and laudable state goal," was not so compelling as to justify the "arbitrary and discriminatory burden on plaintiffs."

The court emphasized that the generally accepted procedure of recusal would be a less restrictive means of serving the state's aim, without intruding on the plaintiffs' marital rights. An example of recusal, the court noted, is contained in the directive itself, whose grandfather clause exempts those who held office on or before August 1, 1977. Consistent with this reasoning, the district court declared that the state's policy violated the plaintiffs' equal protection and substantive due process rights, and issued an order permanently enjoining the bulletin's enforcement. In so deciding, the court deemed unnecessary any discussion of the provisions of the New Jersey Constitution and the state's statute against discrimination.

On appeal defendants contend that the real interests at stake are those relating to employment, not marriage. Consequently, they argue that the district court's review of the validity of the bulletin should have employed a rational basis test, not a strict scrutiny standard. Defendants also assert that upholding the integrity of the judicial process presents a compelling interest that cannot be secured simply by recusal. In contrast, plaintiffs insist that the bulletin's restriction implicating their fundamental right of marriage requires strict scrutiny, and that the substantial burdens the directive imposes impermissibly interferes with that right.

Defendants moved for federal abstention in the district court, but did not raise the issue on this appeal. Because of the sensitive nature of this controversy, affecting as it does the administrative rules and operations of a state court system, we requested the parties to brief the abstention question for our examination.

I.

Although the defendants' failure to raise abstention could arguably amount to waiver of its application, we have authority to consider the matter sua sponte. Bellotti v. Baird, 428 U.S. 132, 144 n. 10, 96 S.Ct. 2857, 2864 n. 10, 49 L.Ed.2d 844 (1976); Blake v. Kline, 612 F.2d 718, 727 (3d Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980). See Robinson v. City of Omaha, 866 F.2d 1042, 1043 (8th Cir.1989); Catlin v. Ambach, 820 F.2d 588, 591 (2d Cir.1987); Waldron v. McAtee, 723 F.2d 1348, 1351 (7th Cir.1983); Richardson v. Koshiba, 693 F.2d 911, 915 (9th Cir.1982).

As a general rule, the federal courts are bound to adjudicate cases within their jurisdiction. New Orleans Pub. Serv., Inc. v. Council of New Orleans, --- U.S. ----, ----, 109 S.Ct. 2506, 2512-13, 105 L.Ed.2d 298 (1989); Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976); Professional Plan Examiners of New Jersey, Inc. v. LeFante, 750 F.2d 282, 290 (3d Cir.1984). There are, however, a few notable exceptions to this rule. In some cases where questions under both state law and the federal constitution are present, the policies of promoting comity with the state courts and ensuring the smooth functioning of the federal judiciary counsel the federal courts to stay their hands, at least initially. This is the abstention doctrine explicated in Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).

Generally, Pullman abstention may...