Mazanec v. North Judson-San Pierre School Corp.

• Decision Date: 31 May 1985
• Docket Number: JUDSON-SAN,No. 84-2485,84-2485
• Parties: 25 Ed. Law Rep. 182 Richard MAZANEC, et al., Plaintiffs-Appellants, v. NORTHPIERRE SCHOOL CORPORATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 845

763 F.2d 845

25 Ed. Law Rep. 182

Richard MAZANEC, et al., Plaintiffs-Appellants, v. NORTH JUDSON-SAN PIERRE SCHOOL CORPORATION, et al Defendants-Appellees.

No. 84-2485.

United States Court of Appeals Seventh Circuit.

Argued Feb. 26, 1985.

Decided May 31, 1985.

Richard J. LaSalvia, South Bend, Ind., for plaintiffs-appellants.

Thomas O. Mulligan, Mulligan & Fenton, Knox, Ind., David Michael Wallman, Office of Atty. Gen., Indianapolis, Ind., for defendants-appellees.

Before WOOD and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

POSNER, Circuit Judge.

The question raised by this appeal is whether the district judge was right to abstain from deciding the merits of the plaintiffs' case under the doctrine of Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Our previous opinion, Mazanec v. North Judson-San Pierre School Corp., 750 F.2d 625 (7th Cir.1984), held that such an order to abstain is appealable as a final judgment. See 28 U.S.C. Sec. 1291.

The plaintiffs, Jehovah's Witnesses who say they decided to educate their children at home in order to shield them from the secular and immoral atmosphere of the public schools, brought this suit in federal district court in Indiana in July 1981 under section 1 of the Civil Rights Act of 1871, now 42 U.S.C. Sec. 1983, claiming that Indiana's compulsory-schooling law both is unconstitutionally vague and infringes their religious freedom. The defendants remaining in the case are the local public school board and various local officials. The complaint asks for damages, and for declaratory and injunctive relief against what the plaintiffs contend is a pattern of harassment illustrated by two consecutive criminal prosecutions (dismissed after this complaint was filed) for violation of the compulsory-schooling law. The allegations of harassment show that the plaintiffs have an actual controversy with the defendants within the meaning of Article III of the Constitution. Compare Illinois ex rel. Barra v. Archer Daniels Midland Co., 704 F.2d 935, 941-43 (7th Cir.1983).

The Indiana law requires parents to send their children to school "unless the child is being provided with instruction equivalent to that given in the public schools." Ind.Code Sec. 20-8.1-3-34. So, not surprisingly, an important issue at trial was whether the Mazanecs' home instruction was indeed "equivalent to that given in the public schools." There was evidence that all of the instruction was given either by Mrs. Mazanec, who does not have a high-school education, or by one of her children; that the children were seen outside the house during school hours; and that she conducted a business in irrigating colons during school hours. A couple of months after the three-day bench trial ended last May the judge decided to abstain from deciding the case. Unless reversed, this order will force the plaintiffs to start the case over in the state courts of Indiana. The judge wanted to give those courts a chance to construe Indiana's compulsory-schooling law in a way that might obviate the constitutional controversy.

The judge's order came awfully late in the day. The case was three years old, and had been tried; it is now in its fifth year. Abstention after trial condemns the parties to the delay and expense of a second trial, in state court, followed by an appeal in the state court system and after that, perhaps, a return to the federal court for more proceedings--which might include another trial; in any event, the first trial is made a complete waste of time. Such long delay argues against abstention. See, e.g., Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 329, 84 S.Ct. 1293, 1296, 12 L.Ed.2d 350 (1964); Harris County Comm'rs Court v. Moore, 420 U.S. 77 84, 95 S.Ct. 870, 875, 43 L.Ed.2d 32 (1975) (dictum); Bickham v. Lashof, 620 F.2d 1238, 1245 (7th Cir.1980); Lister v. Lucey, 575 F.2d 1325, 1333 (7th Cir.1978); Professional Plan Examiners of New Jersey, Inc. v. Lefante, 750 F.2d 282, 291 (3d Cir.1984); 17 Wright, Miller & Cooper, Federal Practice and Procedure Sec. 4242, at p. 468 (1978). And though delay is not the only thing the court must consider when faced with a motion to abstain, we think that if a case has gone to trial the presumption should be in favor of deciding it rather than abstaining.

At least this is true where neither party requested abstention before trial. (This is such a case. The defendants moved for abstention early on, but apparently abandoned the motion when the plaintiffs filed an amended complaint, and only renewed it at the end of the trial.) Maybe if one party had requested abstention before trial the fact that the judge denied the request and went on to try the case should not count against the request, for the party who made it might well have lacked any appellate remedy against the denial. In this circuit, orders granting abstention are appealable as final orders, as we reaffirmed in our previous opinion in this case. But orders denying abstention before final judgment--orders which thus are no more final than orders denying motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, see, e.g., Texaco, Inc. v. Cottage Hill Operating Co., 709 F.2d 452, 453 (7th Cir.1983)--are appealable only if the "Enelow-Ettelson " doctrine (see id. at 454) is applicable. It would be applicable only if the underlying suit was a suit at law and the Pullman doctrine is a doctrine of equity, a question left open in our first opinion, see 750 F.2d at 626. Only then would the denial of the motion to abstain be the denial of a motion to stay, on equitable grounds, a suit at law; and no other kind of denial of a stay is made appealable by the Enelow-Ettelson doctrine.

The presumption that a case which has been tried should be decided has not been rebutted in this case; on the contrary, no useful purpose would be served by abstaining in this case. The main purpose of the Pullman doctrine is to avoid, if possible, declaring a state statute unconstitutional, by giving the state courts a chance to interpret it narrowly. See, e.g., Zwickler v. Koota, 389 U.S. 241, 251 n. 14 (1967); Hawaii Housing Authority v. Midkiff, 104 S.Ct. 2321, 2327 (1984). So there are two requirements for abstaining under Pullman: some risk that the statute will be found unconstitutional unless narrowed; some reasonable chance that it can be narrowed through interpretation. Neither requirement is satisfied here. There is to begin with little likelihood that Indiana's compulsory-schooling law will be held unconstitutional--at least at the suit of these plaintiffs--merely because it requires that home instruction be "equivalent" to what the public schools offer. True, the Supreme Court held in Wisconsin v. Yoder, 406 U.S. 205 (1972), that Wisconsin's compulsory-schooling law violated the religious rights of the Amish. In part this was because "not only do the Amish accept the necessity for formal schooling through the eighth grade level, but [they] continue to provide what has been characterized by the undisputed testimony of expert educators as an 'ideal' vocational education for their children in the adolescent years." Id. at 224. Whether or not this is "equivalent" home instruction--whether, indeed, Wisconsin's law allowed home instruction, a matter unclear from the Supreme Court's opinion, see id. at 207 n. 2--the Amish are not Jehovah's Witnesses. The Amish want their teenagers to work in the fields. Jehovah's Witnesses--these Jehovah's Witnesses, anyway--want their children to receive an academic education, only at home rather than in a public school. We do not understand the plaintiffs to be arguing that their religion commands them to deny their children an education that is equivalent to what the public schools offer, only less secular, in the same way that parochial education is less secular than public education. They argue that they are providing equivalent instruction, cf. People v. Levisen 04 Ill. 574, 90 N.E.2d 213 (1950), and this is not an argument that attacks the constitutionality of the statute.

Alternatively, however, they argue that the term "equivalent" is hopelessly vague and that the state should be forced to spell out the details of an acceptable home education. A challenge to a statute as too vague invites abstention so that the state courts...