                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-17-2002

Phila City Cncl v. Schweiker
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2139




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                                        NOT PRECEDENTIAL

                     IN THE UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                             No. 02-2139
                          _________________

 PHILA. CITY COUNCIL; ANNA C. VERNA, PRESIDENT OF CITY COUNCIL;
    DAVID COHEN, CHAIR, LAW AND GOVERNMENT COMMITTEE OF CITY
    COUNCIL; FRANK DICICCO, COUNCILMAN; JANNIE L. BLACKWELL,
      COUNCILWOMAN; MICHAEL A. NUTTER, COUNCILMAN; JOAN L.
   KRAJEWSKI, COUNCILWOMAN; DONNA REED MILLER, COUNCILWOMAN;
MARIAN B. TASCO, COUNCILWOMAN; W. WILSON GOODE, JR., COUNCILMAN;
    JAMES F. KENNEY, COUNCILMAN; ANGEL L. ORTIZ, COUNCILMAN;
   BLONDELL REYNOLDS BROWN, COUNCILWOMAN; SHIRLEY M. KITCHEN,
     STATE SENATOR; W. CURTIS THOMAS, STATE REPRESENTATIVE;
  HAROLD JAMES, STATE REPRESENTATIVE; JAMES R. ROEBUCK, STATE
  REPRESENTATIVE; JOHN TIMOTHY KEARNEY; HANNAH LOUISE KEARNEY,
  A MINOR; DINA LYNN SCHLOSSBERG; WENDELL HARRIS; ROSE LENTZ;
     DELORES SHAW; PATRICIA RAYMOND; DEBORAH TONEY; PARENTS
  UNITED FOR BETTER SCHOOLS; PARENTS UNION FOR PUBLIC SCHOOLS;
     PHILADELPHIA STUDENT UNION; PHILADELPHIA BRANCH NAACP;
JEROME W. MONDESIRE, PRESIDENT OF THE PHILADELPHIA BRANCH NAACP;
NATIONAL CONGRESS FOR PUERTO RICAN RIGHTS - PHILADELPHIA CHAPTER;
RAY ALVAREZ, PRESIDENT, NATIONAL CONGRESS FOR PUERTO RICAN RIGHTS -
 PHILADELPHIA CHAPTER; INSTITUTE FOR THE STUDY OF CIVIC VALUES;
    NATIONAL ORGANIZATION FOR WOMEN - PHILADELPHIA CHAPTER,

                             Appellants

                                              v.

MARK S. SCHWEIKER, HON. GOVERNOR; CHARLES R. ZOGBY, SECRETARY OF
EDUCATION; THE SCHOOL REFORM COMMISSION; JAMES E. NEVELS; CHAIRMAN;
         JAMES GALLAGHER; SANDRA GLENN; MICHAEL MASCH;
        DANIEL WHELAN, MEMBERS, SCHOOL REFORM COMMISSION
             _______________________________________

         On Appeal From the United States District Court
             For the Eastern District of Pennsylvania
                   (D.C. Civ. No. 02-cv-00998)
          District Judge: Honorable Ronald L. Buckwalter
            _________________________________________

                        Argued: July 11, 2002

       Before: BECKER, Chief Judge, McKEE, and GREENBERG,
                         Circuit Judges.

            (Filed      July 17, 2002                      )


ALICE W. BALLARD, ESQUIRE (ARGUED)
FRANK FINCH, III, ESQUIRE
BALLARD & FINCH
225 South 15th Street, Suite 1700
Philadelphia, PA 19102

STANLEY J. SHAPIRO, ESQUIRE
City of Philadelphia
Technical Services Unit
Room 564 - City Hall
Philadelphia, PA 19107

BRUCE M. LUDWIG, ESQUIRE
GEORGE J. BADEY, III, ESQUIRE
DAVID J. BERNEY, ESQUIRE
Sheller, Ludwig & Badey
1528 Walnut Street, 3rd Floor
Philadelphia, PA 19102

JOSEPH C. KOHN, ESQUIRE
ROBERT J. LaROCCA, ESQUIRE
JOANNE ZACK, ESQUIRE
CRAIG W. HILLWIG, ESQUIRE
Kohn, Swift & Gaft, P.C.
One South Broad Street, Suite 2100
Philadelphia, PA 19107

Counsel for Appellants


D. MICHAEL FISHER, ESQUIRE
Attorney General
DANIEL J. DOYLE, ESQUIRE
Senior Deputy Attorney General
SUSAN J. FORNEY, ESQUIRE
Chief Deputy Attorney General
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120

EDWARD F. MANNINO, ESQUIRE (ARGUED)
JASON A. SNYDERMAN, ESQUIRE
Akin, Gump. Strauss, Hauer & Feld, LLP
One Commerce Square
2005 Market Street, Suite 2200
Philadelphia, PA 19103

Counsel for Appellees Honorable Mark Schweiker and Charles Zogby

CARL E. SINGLEY, ESQUIRE (ARGUED)
MICHAEL J. HANLON, ESQUIRE
SCOTT F. COOPER, ESQUIRE
Blank, Rome, Comisky & McCauley, LLP
One Logan Square
Philadelphia, PA 19103-6998

Counsel for Appellees The School Reform Commission and Its
Individual Members, James Nevels, James Gallagher, Sandra Glenn,
Michael Masch and Daniel Whelan

DEBORAH R. WILLIG, ESQUIRE
RALPH J. TETI, ESQUIRE
ERIC M. FINK, ESQUIRE
Willig, Williams & Davidson
1845 Walnut Street, 24th Floor
Philadelphia, PA 19103
Counsel for Amici Curiae Committee to Keep Our
Public Schools Public, The Philadelphia Federation of
Teachers, National Conference of Firemen and Oilers
School Employees Union, Local 1201, SEIU, AFL-CIO, and
School Cafeteria Employees Union, Local 634 HERE, AFL-CIO

                    __________________________

                       OPINION OF THE COURT
                   ___________________________

BECKER, Chief Judge.
     This appeal arises out of a lawsuit brought in the District Court for the Eastern
District of Pennsylvania by the Philadelphia City Council; a majority of its members;
several state legislators; children and parents of children enrolled in the Philadelphia
School; and several advocacy groups interested in the Philadelphia Public Schools.
Named as defendants are Pennsylvania’s Governor, its Secretary of Education, and the
members of the School Reform Commission ("SRC") created pursuant to Acts 46 and 83
of the Pennsylvania General Assembly, see Act of Apr. 27, 1998, P.L. 270, No. 46 2-
3; Act of Oct. 30, 2001, P.L. 828, No. 83 1 (codified as amended at 24 P.S. 6-691-
6-696). Acts 46 and 83 authorize the SRC to take over the operations of the School
District of Philadelphia if and when a Declaration of Distress is made by the Secretary.
The suit challenges the creation and powers of the SRC and the procedures by which the
recent "takeover" of the Philadelphia school system was effected, on a number of state
law, federal law, state constitutional, and federal constitutional grounds.
     This opinion addresses the plaintiffs’ appeal from orders entered by the District
Court granting the defendants’ motion to abstain essentially on the basis of the doctrine
of "Pullman abstention" (which takes its name from the seminal Supreme Court case
Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941)), staying the federal
proceedings pending litigation in state court, and dismissing plaintiffs’ motion to
reconsider. The plaintiffs also contend that the District Court erred in failing to consider
their motions for a temporary restraining order and a preliminary injunction. Although
the factual and procedural history of the case is extensive, it need not be chronicled here,
for it is well known to the parties (and indeed to the general public, for the facts
underlying this lawsuit and the progress of the suit itself and of related suits have been
widely publicized). Moreover, as was agreed by the parties at the conclusion of oral
argument, the public interest will be better served by a prompt disposition of this appeal
than by a lengthy opinion which will perforce take a long time to draft. Accordingly, we
limit our discussion to background materials and a statement of our ratio decidendi.
                                I.
     At the threshold, the defendants challenge our appellate jurisdiction (advanced by
the plaintiffs under 28 U.S.C. 1291) on the grounds that the principal order appealed
from, which grants a stay, is not a final order. We disagree. Under our jurisprudence an
abstention-based stay order can be a final order under 1291 even when the District
Court retains jurisdiction. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712-13
(1996); see also Hovsons, Inc. v. Sec’y of Interior, 711 F.2d 1208, 1211 (3d Cir. 1983)
(holding that Pullman-abstention stays are appealable final orders). As explained in 17A
Wright, Miller & Cooper, Federal Practice & Procedure 4243, at 68 (2d ed. 1988):
          Since the federal court is to retain jurisdiction, its abstention order does not
     look like a final judgment. Nevertheless the consequences of abstention to
     the litigants are often so great that the appellate courts have provided
     immediate review . . . .

See also 19 James Wm. Moore et al., Moore’s Federal Practice 202.11[6], at 202-56
(Matthew Bender 3d ed.) ("Generally, an order granting abstention is appealable when its
purpose and effect is to surrender jurisdiction to a state court."). Because the District
Court’s decision essentially left the matter up to the Pennsylvania Supreme Court, we
treat it as a final order that is appealable.
                               II.
     We turn to the abstention issue. The defendants ask that we treat the District
Court’s ruling as a combination of abstention under Pullman, supra, and Burford v. Sun
Oil Co., 319 U.S. 315 (1943), urging that although a court’s decision to abstain is usually
classified by reference to one of the discrete categories of abstention doctrine, the
Supreme Court has noted that "[t]he 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 Co. v. Texaco, Inc., 481 U.S. 1, 11 n.9 (1987).
Because we are satisfied that the District Court’s abstention was proper under Pullman,
we need not decide whether the District Court’s order was also justified under the
doctrine of Burford abstention, or some amalgam of the two doctrines.
     One of the main purposes of Pullman abstention is "to avoid deciding a federal
constitutional question when the question may be disposed on questions of state law."
Chiropractic Am. v. Lavecchia, 180 F.3d 99, 103 (3d Cir. 1999). In other words,
Pullman abstention "is appropriate where an unconstrued state statute is susceptible of a
construction by the state judiciary which might avoid in whole or in part the necessity for
federal constitutional adjudication, or at least materially change the nature of the
problem." Bellotti v. Baird, 428 U.S. 132, 147 (1976) (internal quotations and citation
omitted). We have identified the rationale for Pullman abstention as "twofold: (1) to
avoid a premature constitutional adjudication which could ultimately be displaced by a
state court adjudication of state law; and (2) to avoid ’needless friction with state
policies.’" Planned Parenthood of Central N.J. v. Farmer, 220 F.3d 127, 149 (3d Cir.
2000) (quoting Pullman, 312 U.S. at 500).
     The first step in the Pullman analysis is determining whether three "special
circumstances" exist:
          (1) There are uncertain issues of state law underlying the federal
     constitutional claims brought in federal court;
          (2) The state law issues are amenable to a state court interpretation that
     would obviate the need for, or substantially narrow, the scope of
     adjudication of the constitutional claims; and
          (3) A federal court’s erroneous construction of state law would be
     disruptive of important state policies.

Chez Sez III Corp. v. Township of Union, 945 F.2d 628, 631 (3d Cir. 1991). If all three
of these circumstances are present, the district court must then exercise its discretion as to
whether abstention is appropriate "by weighing such factors as the availability of an
adequate state remedy, the length of time the litigation has been pending, and the impact
of delay on the litigants." Planned Parenthood, 220 F.3d at 150 (quoting Artway v.
Attorney Gen. of N.J., 81 F.3d 1235, 1270 (3d Cir. 1996)).   We refer to these
considerations, infra, as the "discretionary factors."
     In reviewing a district court’s decision to abstain under Pullman, we apply a
multi-pronged standard of review. See Chez Sez, 945 F.2d at 631. The district court’s
determinations as to the first two special circumstances   whether state law is uncertain
and whether the law is susceptible to a construction that would obviate or narrow the
constitutional issue presented   are essentially legal decisions that we review de novo.
Id. The district court’s appraisal of the third circumstance    whether an erroneous
decision of state law by the federal court would disrupt important state policies    "is
more discretionary in nature and thus, if it is adequately explained, will be accorded
greater deference by the appellate court." Id.; see also Artway, 81 F.3d at 1271 n.35.
Finally, if we agree that the district court was correct on the three special circumstances,
"the remaining question is whether the trial judge abused his discretion in" considering
the aforementioned discretionary factors. Chez Sez, 945 F.2d at 631 (citation omitted).
                               III.
                                A.
     We are satisfied that the requirements for Pullman abstention have been met. The
first Pullman prong turns on the existence of unclear issues of state law. Plaintiffs’
complaint is suffused with alleged violations of state law. Plaintiffs contend that all of
the violations are clear, but we disagree. The District Court’s opinion lists as unclear a
number of issues of state law, which we rescribe in the margin. We agree with its
characterization of a sufficient number of them to meet the first Pullman prong.
     Turning to the second prong, the plaintiffs contend that the District Court never
identified the supposed limiting construction of Acts 46 and 83 that would avoid the
plaintiffs’ constitutional challenge. But there is no legal requirement that the District
Court make such a construction. What suffices here is the District Court’s identification
of the possibility that a limiting construction could obviate the need for federal
constitutional inquiry, which we find sufficient. We focus particularly on the question of
the proper scope of the Secretary’s "distress" determination, which lies at the core of
plaintiffs’ due process/vagueness challenge. This seems especially appropriate for a state
court construction, and the state court’s interpretation of this provision could markedly
limit the scope of any federal constitutional issues.
     We note in this regard that plaintiffs appear to assume that Pullman abstention is
appropriate only if interpretation of the state law issues could save the statute from
constitutional attack. However, while a potential saving construction is one basis for
abstention, it is not the only one. Rather, abstention is appropriate when resolution of the
state law issues would obviate the need for constitutional inquiry altogether, such as
where a state court invalidates the challenged law on state law or constitutional grounds.
See Pullman, 312 U.S. at 501 ("If there was no warrant in state law for the Commission’s
assumption of authority there is an end of the litigation; the constitutional issue does not
arise."); Erwin Chemerinsky, Federal Jurisdiction 12.2, at 690 (2d ed. 1994) (noting
that one of the purposes behind Pullman abstention is "avoiding unnecessary
constitutional rulings"; "[i]f the state court invalidates the state law, then there is no nee
for the federal court to reach the constitutional question"). In this sense the plaintiffs ar
hoist on their own petard. Throughout their complaint they allege that Acts 46 and 83
violate numerous state law and constitutional provisions. If this is indeed so, then the
acts are illegal under state law or unconstitutional under the state constitution, and a
federal court would not need to decide whether they violate the federal Constitution.
     The plaintiffs also submit that "abstention is not required for interpretation of
parallel state constitutional provisions." Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 237
n.4 (1984). However, the plaintiffs have not attacked Acts 46 and 83 solely on the basis
of "parallel state constitutional provisions." Rather, they have attacked the acts as
violations of state law and state constitutional provisions that have no parallel in the
federal Constitution. See, e.g., Article IX, 2 ("[A]mendment or repeal of a home rule
charter shall be by referendum."), and Article III, 32 (prohibition on "special"
legislation). This case thus differs from Midkiff, where the parties attacked the state’s
action on a provision of the Hawaii Constitution that contained "only a parallel
requirement that a taking be for a public use." 467 U.S. at 237 n.4.
     Finally, we are satisfied that an erroneous construction of state law in this case
would have the potential to disrupt important state policies, thereby fulfilling the third
Pullman prong. It is well-known that education is a state policy of paramount
importance. See Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (noting that
"education is perhaps the most important function of state and local governments").
Should a federal court misinterpret any of the numerous state legal and constitutional
provisions relied on by the plaintiffs, the course of Pennsylvania educational policy,
particularly as directed toward the Philadelphia public schools, could be radically altered.

     The plaintiffs contend that the third prong of Pullman is not fulfilled because Acts
46 and 83 reflect no important public "policy," but rather only "politics." We disagree,
for in a representative democracy, "politics" and "policy," to the extent a distinction
between the two concepts exists at all, are always intertwined. The fact that "political"
considerations played a substantial role in the state’s "policy" decisions does not make
those policies   however wisely or unwisely adopted   any less "important" for the
purposes of Pullman analysis.
                                B.
     The Pullman discretionary factors may be dealt with summarily. Under a
deferential standard of review, we can find no fault with the District Court’s rejection of
plaintiffs’ contention that abstention is inappropriate because the present case "involves
the infringement and burdening of rights to vote and to participate in the political
process," "fundamental rights [which] are virtually never appropriate for abstention."
Br. of Appellants at 32. While a federal court ought to take into account the nature of the
federal interest asserted in deciding whether to abstain, see, e.g., Siegel v. LePore, 234
F.3d 1163, 1174 (11th Cir. 2000) (en banc), this is simply one factor that ought to be
considered, not a factor that automatically makes abstention inappropriate. At all events,
the plaintiffs’ case is not a straightforward voting rights case. Rather, as the SRC points
out, even before Acts 46 and 83, the members of the Board of Education were appointed,
not elected. And, from 1911 to 1965, members of the Philadelphia Board of Education
were appointed by the Judges of the Courts of Common Pleas. Thus the source of the
plaintiffs’ putative voting right is at best highly elusive, if existent at all. We also note
this regard that the structure and governance of the Philadelphia School Board has
always been the province of the Pennsylvania General Assembly. The right asserted here
is a more vague "right to participate in the political process," a right for which the
plaintiffs have identified no firm rooting in constitutional jurisprudence.
     Nor can we fault the District Court’s evaluation of the discretionary factors. The
key factor is the existence of an available state forum, but we are unpersuaded that the
Pennsylvania Supreme Court’s summary rejection of two cases dealing with these issues
brought by other parties, notwithstanding its direct statutory jurisdiction authorizing
bypass of the trial level, see Section 27 of Act 46, 24 P.S. 6-691 & 6-696 (Historical
and Statutory Notes) (West Supp. 2002), means that the Pennsylvania high court will
reject the suit brought by the "marquis" parties, who are before us and who also have
pressed a number of additional issues. There appear to be no standing-type issues here,
as there apparently were in the cases the Pennsylvania Supreme Court declined to hear.
In sum, we believe that there is an available state forum.
     The Orders of the District Court will be affirmed.                     ___________________
TO THE CLERK:
     Please file the foregoing Opinion.
                              BY THE COURT:
                              /s/Edward R. Becker
                              __________________________
                              Chief Judge
