                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-1-1996

Colville v. Allegheny Co. Ct. of Comm. Pleas
Precedential or Non-Precedential:

Docket 95-3014




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              UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                       N0. 95-3014


       FOCUS, (For Our Children's Ultimate Safety),
    a citizens' advocacy group; JACQUELINE COLVILLE;
                    CATHERINE SILVIO,

                        Appellants

                              v.

          ALLEGHENY COUNTY COURT OF COMMON PLEAS,
             Family Division Juvenile Section;
                   HONORABLE JOSEPH JAFFE



    On Appeal From the United States District Court
       For the Western District of Pennsylvania
          (D.C. Civil Action No. 94-cv-02160)


                 Argued:   April 18, 1995

BEFORE:   STAPLETON, HUTCHINSON* and SEITZ, Circuit Judges

            (Opinion Filed:    February 1, 1996)




                     Jon Pushinsky (Argued)
                     1808 Law & Finance Building
                     Pittsburgh, PA 15219
                       and
                     Witold J. Walczak
                     American Civil Liberties Union
                     Greater Pittsburgh Chapter
                     237 Oakland Avenue
                     Pittsburgh, PA 15213
                       Attorneys for Appellants
                       FOCUS, Colville and Silvio
* The Honorable William D. Hutchinson was a member of the panel
  which heard this appeal, but died before the opinion issued.
                          David M. Donaldson (Argued)
                          Administrative Office of PA Courts
                          1515 Market Street, Suite 1414
                          Philadelphia, PA 19102
                            Attorneys for Appellees
                            The Court of Common Pleas of
                            Allegheny County and
                            Honorable Joseph Jaffe



                       OPINION OF THE COURT




STAPLETON, Circuit Judge:
          A citizen's advocacy group, "For Our Children's

Ultimate Safety" ("FOCUS"), and two of the group's members,

Jacqueline Colville and Catherine Silvio (collectively, the

"plaintiffs"), appeal from an order of the United States District

Court for the Western District of Pennsylvania granting a motion

to dismiss their 42 U.S.C. § 1983 claim against the Family

Division of the Allegheny County Court of Common Pleas and a

judge of that court.   Their claim arises out of gag orders

entered during a celebrated child custody case, In re Byron

Griffin, No. 1608-92 (Pa. C.P. filed Aug. 21, 1992) (the "Baby

Byron" case), currently pending before the court of common pleas.

The gag orders prohibited the parties to that case from

discussing the case with the public.   FOCUS (but not the

individual plaintiffs) attempted to intervene in the Baby Byron

case, arguing that the gag orders violated its rights under the

First Amendment.

          In a quick series of events, (1) the court of common

pleas rebuffed FOCUS' attempt to intervene, (2) the Pennsylvania
Superior Court refused to entertain FOCUS' motion for a writ of

mandamus, and (3) the Pennsylvania Supreme Court denied FOCUS'

petition to exercise its King's Bench jurisdiction to declare the

gag orders unconstitutional.   FOCUS then joined forces with the

two individual plaintiffs and filed this § 1983 suit in federal

district court, alleging that the state court and its judge

violated their First Amendment rights.   The district court

dismissed all claims against the state court on Eleventh

Amendment grounds.   It then dismissed the claims against the

judge, holding that it did not have subject matter jurisdiction

under the Rooker-Feldman doctrine and also that it should abstain

under Younger v. Harris, 401 U.S. 37 (1971).

          The plaintiffs appeal only the district court's Rooker-

Feldman and Younger rulings.   The plaintiffs do not appeal the

district court's decision to dismiss their claims against the

state court on Eleventh Amendment grounds.   We hold that neither

the Rooker-Feldman doctrine nor Younger bars the plaintiffs'

federal challenge to the judge's gag orders, and we will

accordingly reverse and remand for further proceedings.



                                I.

          FOCUS is a Pittsburgh, Pennsylvania unincorporated

association consisting of some fifty birth and foster parents

whose goal is to make the Allegheny County Children and Youth

Services ("CYS") more accountable, accessible and understandable.

One of FOCUS' activities is to acquire information about the

operations, policies and practices of CYS by listening to and
advising individuals affected by the agency's activities.   FOCUS

has been interested in the highly-publicized1 Baby Byron case, a

child dependency and adoption proceeding which involves a dispute

between white foster parents and the biological mother over the

placement of two young black children.

          FOCUS claims that its attempts to keep informed about

the Baby Byron case have been hampered by several gag orders. The

first order, issued on January 24, 1994, states:
          [I]t is hereby ORDERED, ADJUDGED, and DECREED
          that the parties and their counsel and others
          having knowledge or information whatsoever
          regarding this case are prohibited from
          releasing any such knowledge or information,
          in whole or in part, to the media or
          otherwise.

(App. at 16.)   The second gag order, issued on November 1, 1994,

directs that:
          [The] parties are to have no contact with the
          public vis a vis discussing or referring to
          this case in any public context or forum.

(App. at 18.)   The judge reaffirmed the second order on November

14, 1994, and it remains in effect today.

          The parties to the Baby Byron case have not challenged
the gag orders.   The plaintiffs allege that this is because the

judge has threatened to deny custody of the child to any party

that publicly discusses the case.   The plaintiffs further allege

that the child's foster parents, Karen and Michael Derzack,

"recently released a book detailing their experiences with Byron

1
   E.g., Alyssa Gabbay, Baby Byron Case Illustrates Black-and-
White Issue of Adoption, L.A. Times, Sept. 17, 1995, at A22
(stating that the case has focused national attention on the
issue of transracial adoption and has inspired nationwide media
coverage, a book, legislation, and a recent motion picture).
and their frustration with CYS and the courts," thus indicating

that the Derzacks were willing to talk at some point prior to the

entry of the gag orders.   (App. at 9.)

          On November 14, 1994, FOCUS (without Colville and

Silvio) moved to intervene in the Baby Byron case for the limited

purpose of challenging the gag orders on free speech grounds. The

judge's tipstaff informed FOCUS that the judge would not accept

FOCUS' intervention motion and that FOCUS would not be permitted

to present argument in opposition to the gag orders. FOCUS claims

that the judge refused even to accept the motion to intervene so

that he would not have to deny it formally.

          FOCUS immediately filed an "Emergency Petition For a

Writ of Mandamus" with the Superior Court of Pennsylvania,

seeking an order compelling the judge to permit FOCUS to

intervene in the Baby Byron case and to participate in that

afternoon's scheduled hearing.   The superior court immediately

denied that motion for lack of jurisdiction.

          FOCUS responded on November 16, 1994, by filing a

"Petition For Extraordinary Relief And Request For Expedited

Decision" with the Pennsylvania Supreme Court, seeking to invoke

the court's extraordinary "King's Bench" jurisdiction pursuant to

42 Pa. Cons. Stat. Ann. §§ 502, 726.   Unlike the Emergency

Petition to permit intervention, however, FOCUS asked the court

to issue an order declaring the gag orders unconstitutional.    The

supreme court denied the Petition for Extraordinary Relief on

December 12, 1994 without explanation.
          On December 19, 1994, FOCUS joined with individual

plaintiffs Silvio and Colville to file their verified complaint

and motion for a temporary restraining order in the United States

District Court for the Western District of Pennsylvania.   The

defendants moved to dismiss the next day for lack of subject

matter jurisdiction.    On December 22, 1994, the district court

held a hearing on the motion to dismiss and granted it for the

reasons stated above.   This timely appeal followed.



                                II.

          The parties do not raise the issue but, before we can

proceed further on the merits, we must satisfy ourselves that the

plaintiffs have standing to present their free speech challenges

to the gag orders.   E.g., Elkin v. Fauver, 969 F.2d 48, 52 n.1

(3d Cir.) (considering standing issue sua sponte and noting that

the courts of appeals have an independent obligation to ensure

that federal jurisdiction is present in cases coming before

them), cert. denied, 113 S. Ct. 473 (1992).    "The party invoking

federal jurisdiction bears the burden of establishing" the

elements of standing, and "each element must be supported in the

same way as any other matter on which the plaintiff bears the

burden of proof, i.e., with the manner and degree of evidence

required at the successive stages of the litigation."   Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992).   Thus, "when

standing is challenged on the basis of the pleadings, we 'accept

as true all material allegations in the complaint, and . . .

construe the complaint in favor of the complaining party.'"
Pennell v. City of San Jose, 485 U.S. 1, 7 (1988) (quoting Warth

v. Seldin, 422 U.S. 490, 501 (1975)).

           The standing issue arises in this case because the gag

orders merely constrain the speech of the parties and the

attorneys to the Baby Byron case; the plaintiffs do not complain

that the orders affirmatively constrain their speech in any way.2

Of course, that alone does not mean the plaintiffs' case fails

for lack of standing.   "We have routinely found, as have other

courts, that third parties have standing to challenge protective

orders and confidentiality orders in an effort to obtain access

to information or judicial proceedings."   Pansy v. Borough of

Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994) (footnote omitted);

see also In re Dow Jones & Co., 842 F.2d 603, 607 (2d Cir.)

(noting the rights of potential recipients of speech to challenge

the abridgment of that speech), cert. denied, 488 U.S. 946

(1988).

           That putative recipients of speech usually have

standing to challenge orders silencing would-be speakers does not

necessarily mean that the plaintiffs in this case have standing,

however.   The plaintiffs still must show that the gag orders have

caused them injury in fact and that their injury is likely to be

redressed by a favorable decision.   See, e.g., United States v.

Hays, 115 S. Ct. 2431, 2435 (1995) (setting forth the three


2
   The first order does speak to "others having knowledge or
information regarding this case." The plaintiffs do not claim
that this order restrains their own speech, however. Instead,
they complain that the gag orders restrain the speech of the Baby
Byron parties and their lawyers.
elements necessary to satisfy "the irreducible constitutional

minimum of standing").

           Accordingly, courts have found that third parties have

standing to challenge a gag order only when there is reason to

believe that the individual subject to the gag order is willing

to speak and is being restrained from doing so.   E.g., In re Dow

Jones, 842 F.2d at 607 (determining whether the recipients have

standing required the court first to examine "[w]hether the

[plaintiff] news agencies are actually potential receivers of

otherwise restrained speech"); Public Citizen v. Liggett Group,

Inc., 858 F.2d 775, 787 n.12 (1st Cir. 1988) (emphasizing that

the third party had standing to challenge a protective order

because "far from agreeing to the protective order, the

plaintiffs to this action have opposed the protective order at

every stage" and the speech, therefore, would be available);

Radio & Television News Ass'n v. District Court, 781 F.2d 1443,

1448 (9th Cir. 1986) (holding that the press lacks standing to

assert the free speech rights of another when the person subject

to the gag order has not challenged it).

           Our cases are consistent with this view.   In Pansy, for

example, we employed an "available material" approach when we

inquired into the practical effect of vacating the order of

confidentiality at issue in that case; we noted that the

plaintiff newspapers "ha[d] an interest in vacating the Order of

Confidentiality" because they then could obtain the required

information through Pennsylvania's Right to Know Act.   23 F.3d at

784.   Similarly, in United States v. Cianfrani, 573 F.2d 835, 845
(3d Cir. 1978), we held that the intervening newsgathering

organizations and reporters had standing to challenge the

district court's order excluding the public from a pretrial

suppression hearing and sealing the record of that hearing.

There, speech was in fact going on and was thus "available," but

the challenged order denied the intervenors the right to receive

it.

           Looking at the allegations in the verified complaint in

the light most favorable to the plaintiffs here, there are

reasons to conclude that the plaintiffs have adequately met a

"willingness of the speaker" requirement for standing at this

stage of the litigation.   As we have noted, while neither party

to the Baby Byron case is on the record as being opposed to the

gag orders, the Derzacks at least were willing to talk at some

point prior to the entry of the gag orders; The complaint alleges

that the Derzacks "recently released a book detailing their

experiences with Byron and their frustration with CYS and the

courts."   (App. at 9.)   Moreover, the complaint further alleges

that the judge "has threatened to remove Byron from the Derzack's

[sic] home if the Derzacks appear publicly to promote their book

or otherwise discuss their case."   (App. at 10.)   It is

reasonable to infer from these allegations that the Derzacks are

willing but restrained speakers who dare not challenge the gag

orders for fear of reprisal from the judge.   At this stage, we

must accept these allegations and this permissible inference in

the plaintiffs' favor.
            In sum, we find that the plaintiffs have alleged facts

in their verified complaint which would be sufficient to survive

a motion to dismiss for lack of standing.      It follows that we may

proceed to entertain this appeal.      Nonetheless, the plaintiffs

upon remand still bear the burden of proving standing whenever it

is challenged.   See, e.g., Defenders of Wildlife v. Lujan, 911

F.2d 117, 120 (8th Cir. 1990) ("[A] court's refusal to dismiss an

action for lack of standing does not relieve the plaintiff of the

burden of actually proving standing where a defendant contests

the factual basis for standing."), rev'd on other grounds, 504

U.S. 555 (1992).   The plaintiffs must prove that the Baby Byron

parties are willing to talk publicly about that case.      If the

district court, at any point, concludes to the contrary on the

basis of an appropriate record, then it should proceed no

further.3



                                III.

            We exercise plenary review over an order granting a

motion to dismiss for lack of subject matter jurisdiction.

Delaware Valley Citizens Council for Clean Air v. Davis, 932 F.2d

256, 264 (3d Cir. 1991).   Because the district court dismissed


3
   The district court may choose to address the standing issue in
a pre-trial proceeding or at trial. See Doherty v. Rutgers Sch.
of Law-Newark, 651 F.2d 893, 898 & n.6 (3d Cir. 1981); 13A
Charles A. Wright et al., Federal Practice & Procedure § 3531.15,
at 97-104 (1984 & Supp. 1995). Regardless of the procedure
chosen ultimately to determine this issue, however, our decision
here finding standing based on the allegations of the complaint
neither forecloses the district court from reexamining the issue
nor absolves the plaintiffs from carrying their burden of proof.
the complaint before the defendants filed an answer, we review

whether the complaint alleges facts on its face which, if taken

as true, would be sufficient to invoke the district court's

jurisdiction.   Licata v. United States Postal Serv., 33 F.3d 259,

260 (3d Cir. 1994).

          The district court ruled that the plaintiffs' suit was

barred by the Rooker-Feldman doctrine.   The Rooker-Feldman

doctrine provides that "federal district courts lack subject

matter jurisdiction to review final adjudications of a state's

highest court or to evaluate constitutional claims that are

'inextricably intertwined with the state court's [decision] in a

judicial proceeding.'"   Blake v. Papadakos, 953 F.2d 68, 71 (3d

Cir. 1992) (alteration in original) (quoting District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 483 n.16 (1983)); see

also Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).   We have

interpreted the doctrine to encompass final decisions of lower

state courts.   Port Auth. Police Benev. Ass'n v. Port Auth., 973

F.2d 169, 178 (3d Cir. 1992).   We have also concluded that

"Rooker-Feldman does not bar individual constitutional claims by

persons not parties to earlier state court litigation . . . ."

Valenti v. Mitchell, 962 F.2d 288, 298 (3d Cir. 1992).

          When a plaintiff seeks to litigate a claim in a federal

court, the existence of a state court judgment in another case

bars the federal proceeding under Rooker-Feldman only when

entertaining the federal court claim would be the equivalent of

an appellate review of that order.   For that reason, Rooker-

Feldman applies only when in order to grant the federal plaintiff
the relief sought, the federal court must determine that the

state court judgment was erroneously entered or must take action

that would render that judgment ineffectual.   Marks v. Stinson,

19 F.3d 873, 886 n.11 (3d Cir. 1994) (holding Rooker-Feldman

inapplicable where "the district court could (and did) find that

[the plaintiffs'] constitutional claims had merit without also

finding that the [state] court erred").   As the Eighth Circuit

Court of Appeals wrote recently:
          A federal district court has jurisdiction
          over general constitutional challenges if
          these claims are not inextricably intertwined
          with the claims asserted in state court. A
          claim is inextricably intertwined if the
          federal claim succeeds only to the extent
          that the state court wrongly decided the
          issues before it. In other words, Rooker-
          Feldman precludes a federal action if the
          relief requested in the federal action would
          effectively reverse the state decision or
          void its ruling. Accordingly, to determine
          whether Rooker-Feldman bars [plaintiff's]
          federal suit requires determining exactly
          what the state court held . . . . If the
          relief requested in the federal action
          requires determining that the state court
          decision is wrong or would void the state
          court's ruling, then the issues are
          inextricably intertwined and the district
          court has no subject matter jurisdiction to
          hear the suit.


Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th Cir.
1995) (citations omitted).

          Three state courts were involved in FOCUS' attempts to

lift the gag orders issued in the Baby Byron case: the Family

Division of the Allegheny County Court of Common Pleas, the

Pennsylvania Superior Court, and the Pennsylvania Supreme Court.
No one claims that the superior court's refusal to hear the

plaintiffs' claim was an "adjudication" of FOCUS' First Amendment

claim for Rooker-Feldman purposes.     Instead, the defendants

concentrate on the common pleas and the supreme court decisions,

arguing that they were "adjudications" which were "inextricably

intertwined" with FOCUS' First Amendment claims for the purposes

of Rooker-Feldman.    We address each of those decisions in turn.

          The judge allegedly took two actions in the common

pleas proceeding: (1) his initial decision to issue the gag

orders and (2) his thwarting of FOCUS' attempt to intervene.       The

first set of decisions can be dealt with quickly.    None of the

plaintiffs was a party at the time the judge issued the original

gag orders.     As a result, the Rooker-Feldman doctrine would not

have barred the plaintiffs--once the gag orders issued

--from proceeding straight to federal court to challenge their

constitutionality.    Valenti, 962 F.2d at 298.4

          The plaintiffs argue that the judge's thwarting of

FOCUS' attempt to intervene should not be viewed as an

adjudication.    While one could debate whether his tipstaff's

refusal to accept the motion is an adjudication, we think there

is a far easier way to resolve the matter.    The crucial issue is

not whether the action itself is "adjudicative."    Instead, the

4
   The defendants argue that Rooker-Feldman bars the plaintiffs'
federal claims in part because the First Amendment issues were
"inextricably intertwined" with the judge's gag order decisions.
That is correct inasmuch as the parties to the Baby Byron case
could not bring a First Amendment case in federal court
challenging the gag orders.    Under Valenti, however, Rooker-
Feldman does not prohibit third parties--such as plaintiffs
here--from challenging a state court gag order in federal court.
issue is (1) whether the judge adjudicated FOCUS' First Amendment

claim and, if not, (2) whether his decision (if any) is

inextricably intertwined with FOCUS' First Amendment claim.

            The judge did not decide FOCUS' constitutional

challenge to the gag orders or any other issue that is a

predicate to the claim in the federal proceeding.    In short, we

have no reason to believe that in order for FOCUS to prevail in

federal court, the court must decide "that the state court

decision [on intervention] is wrong."    Charchenko, 47 F.3d at

983.   In this respect, this situation is indistinguishable from

the one we faced in Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994).

In that case, some of the plaintiffs had filed petitions with the

Philadelphia Court of Common Pleas asking relief on the basis of

fraud and alleged constitutional violations in connection with an

election.    The court refused to entertain their claims asserting

that it lacked jurisdiction to do so.    We held that a subsequent

proceeding in the district court was not barred by the Rooker-

Feldman doctrine:
          [T]he court was not barred under Rooker-
          Feldman from hearing the constitutional and
          fraud claims of Marks and the Republican
          State Committee ("RSC") because these claims
          had not been determined by the state court,
          nor were they inextricably intertwined with a
          prior state court decision. Specifically,
          the court of common pleas dismissed Marks'
          and the RSC's claims without reaching the
          merits. Therefore, the district court was
          not faced with a situation where it was asked
          to review a determination of the state court.
          . . . Here, the district court could (and
          did) find that Marks' and the RSC's fraud and
          constitutional claims had merit without also
          finding that the court of common pleas erred
          when it dismissed their proceedings.
Marks v. Stinson, 19 F.3d at 886 n.11.

          Thus, had FOCUS stopped its state court activity at

that point and filed this suit in federal district court, the

Rooker-Feldman doctrine would not have barred it from challenging

the constitutionality of the gag orders in federal court.

          Whether the Pennsylvania Supreme Court's decision bars

FOCUS' federal case presents a similar issue.   FOCUS' motion

before the supreme court was filed as a "Petition For

Extraordinary Relief And Request For Expedited Decision."   It

asked the supreme court to:
          a.   Assume [King's Bench] jurisdiction over the herein
               matter pursuant to 42 Pa.C.S.A. §§502 and 726, and
               Pa. Const. Art. V, §10(a);

          b.   Shorten the time to three (3) days for the filing
               of answers to the herein petition;

          c.   Issue forthwith an order declaring the gag orders
               to be an unconstitutional restraint of speech;

          d.   Issue forthwith an order vacating the gag orders;
               and

          e.   Award such other relief as is just and
               appropriate.


(App. at 68-69.)   By order of December 12, 1994, the supreme

court denied that petition without giving any reason.

          Once again, we conclude that a federal court

determining the constitutionality of the gag orders would not

need to conclude that the state court's decision was erroneous.

Nor would it be required to invalidate in any way the state

court's dispositive order.
             The King's Bench jurisdiction of the Supreme Court of

Pennsylvania has been characterized by that court as "our

extraordinary jurisdiction"--a discretionary jurisdiction to "be

invoked sparingly, and only in cases 'involving an issue of

immediate public importance.'"    Washington County Comm'rs v.

Pennsylvania Labor Relations Bd., 417 A.2d 164, 167 (Pa. 1980)

(quoting 42 Pa. Cons. Stat. Ann. § 726).     As the court explained

in Philadelphia Newspapers, Inc. v. Jerome, 387 A.2d 425, 430

n.11 (Pa. 1978), appeal dismissed, 443 U.S. 913 (1979):


          [T]he presence of an issue of immediate
          public importance is not alone sufficient to
          justify extraordinary relief. As in requests
          for writs of prohibition and mandamus, we
          will not invoke extraordinary jurisdiction
          unless the record clearly demonstrates a
          petitioner's rights. Even a clear showing
          that a petitioner is aggrieved does not
          assure that this Court will exercise its
          discretion to grant the requested relief. See
          Illinois v. City of Milwaukee, 406 U.S. 91,
          92 S.Ct. 1385, 31 L.Ed.2d 712 (1972).

             The Pennsylvania Supreme Court's order of December 12,

1994, is consistent with an exercised discretion on its part not

to invoke its extraordinary jurisdiction.     Its failure even to

comment on the constitutional issue strongly suggests that this

was the basis for its disposition.    It is sufficient for present

purposes, however, to note that nothing in the record of the

proceedings before the Supreme Court of Pennsylvania

affirmatively indicates that it adjudicated the First Amendment

issue that the plaintiffs have presented to the district court in

this case.
            Where the extraordinary jurisdiction of a court is

unsuccessfully invoked and the court does not expressly

adjudicate the tendered merits issue, the general rule is that

there is no preclusive effect and the petitioning party is free

subsequently to pursue his claim in any appropriate forum.     E.g.,

Hiley v. United States, 807 F.2d 623, 625-26 (7th Cir. 1986);

United States v. Dean, 752 F.2d 535, 541 (11th Cir. 1985), cert.

denied, 479 U.S. 824 (1986).   While we have found no case of the

Supreme Court of Pennsylvania directly on point, we are confident

that it would give its December 12th order no claim preclusive

effect.    Accordingly, we are not bound to give it claim

preclusive effect.

            While this does not directly answer the Rooker-Feldman

issue presented by the December 12th order, we think it points

the way.    As we have previously noted, "the Rooker-Feldman

doctrine has a close affinity to the principles embodied in the

legal concepts of claim and issue preclusion."    Valenti, 962 F.2d

at 297.    Moreover, because the December 12th order did not affect

the legal relationship before the parties and did not preclude

further proceedings on the constitutional issue tendered, it is

clear that the district court in this case is not being asked

here to play the role of a reviewing court.    Not only is the

district court being asked to adjudicate an issue distinct from

any the Supreme Court of Pennsylvania expressly adjudicated, it

is also being asked to grant relief that is entirely consistent

with the existence of the December 12th order.
           For these reasons, we conclude that this issue is

governed by the principles set forth in Marks v. Stinson, even

though the Supreme Court of Pennsylvania, unlike the court of

common pleas in Marks, declined to give a reason for its

disposition.   Accordingly, we hold that the Rooker-Feldman

doctrine presents no bar to the plaintiffs' federal court

action.5



                                IV.

           The district court also held that it should abstain

from asserting jurisdiction under Younger v. Harris, 401 U.S. 37

(1971).    We exercise plenary review over the legal determinations

of whether the requirements for Younger abstention have been met

and, if so, we review the district court's decision to abstain

for abuse of discretion.   O'Neill v. City of Phila., 32 F.3d 785,

790 (3d Cir. 1994), cert. denied, 115 S. Ct. 1355 (1995).

           Three requirements must be met before Younger

abstention is appropriate: (1) there must be an ongoing state

judicial proceeding to which the federal plaintiff is a party and

with which the federal proceeding will interfere, (2) the state

5
   The individual plaintiffs have an additional argument
supporting their view that Rooker-Feldman does not bar their
federal court challenges. As we have stated, "Rooker-Feldman
does not bar individual constitutional claims by persons not
parties to earlier state court litigation . . . ." Valenti, 962
F.2d at 298. Drawing an analogy to concepts of claim preclusion
and issue preclusion, however, in this particular case we would
group the individual plaintiffs together with FOCUS for both
Younger and Rooker-Feldman purposes. Cf. 18 Charles A. Wright et
al., Federal Practice & Procedure § 4456, at 491-92 (1981 & Supp.
1995).
proceedings must implicate important state interests, and (3) the

state proceedings must afford an adequate opportunity to raise

the constitutional claims.     Port Auth., 973 F.2d at 173.   We

conclude that the first requirement is not present here.      The

judge's refusal to accept or to rule upon FOCUS' motion to

intervene means that FOCUS was never a party in state court--and

there was no ongoing case for Younger purposes--until FOCUS filed

its King's Bench petition in the Pennsylvania Supreme Court.

Since that proceeding had been terminated without an adjudication

of the constitutional issue at the time of the filing of the

federal complaint, Younger abstention was improper.

             The parties agree that the Baby Byron case is

"ongoing."    Still, while the Baby Byron case is ongoing in the

usual sense, it is not "ongoing" for Younger purposes because

FOCUS has never been allowed to intervene and cannot there secure

an adjudication of its constitutional claim.    The defendants

acknowledge, as they must, that FOCUS never became a party to the

custody hearings.    The best they can do is to argue that FOCUS

tried to become a party and that this should suffice for Younger

purposes.    While the defendants grant that FOCUS cannot secure an

adjudication of its First Amendment claim from the court of

common pleas with the state case in its present posture, they

propose a rule that any party who attempts unsuccessfully to

intervene in a state proceeding may not seek federal relief

unless and until she has exhausted any possibility of overturning

the decision on intervention.    This would include, in the
defendants' view, filing a King's Bench petition seeking an order

permitting intervention.

          We find no basis for implying a duty to exhaust all

available state process in pursuit of intervention and,

accordingly, see no reason why FOCUS, once rejected by the court

of common pleas, was not free to seek relief immediately from a

federal court.   Our observations in Marks about Younger

abstention are equally applicable here:
          [I]t is . . . important to recognize that a
          person with a federal Civil Rights Act claim
          has no duty to exhaust state remedies before
          pursuing his or her claim in the federal
          courts. Patsy v. Board of Regents, 457 U.S.
          496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982).
          Younger principles must be applied in a
          manner consistent with this well-established
          proposition. As we noted in Monaghan v.
          Deakins, 798 F.2d 632, 638 (3d Cir. 1986),
          aff'd in part and vacated in part, 484 U.S.
          193, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988),
          "in no case has the Supreme Court or this
          court ever turned the propriety of a Younger
          dismissal upon the mere availability of a
          state judicial proceeding." Thus, the
           plaintiffs in this proceeding could have
           proceeded in federal court without having
           resorted to the state's judicial process.

Marks v. Stinson, 19 F.2d at 882.
           These principles were recently applied by the Court of

Appeals for the Seventh Circuit in a context very similar to that

presented here.   In Hoover v. Wagner, 47 F.3d 845 (7th Cir.

1995), the plaintiffs were two anti-abortion demonstrators and a

journalist who reports on anti-abortion demonstrations.    They

brought a § 1983 declaratory action seeking relief from a

Wisconsin state court injunction limiting the anti-abortion

activities of several named state court defendants "and all

persons acting in concert with them."   The federal plaintiffs

were not parties to the ongoing suit in which the injunction had

been entered but alleged that they wished to protest abortions at

the clinics named in the injunction (or in the case of the

journalist to write about such protests) and that they were

deterred from engaging in First Amendment protected activity by a

well-grounded fear that the injunction would be interpreted as

prohibiting their activity on pain of criminal contempt.    The

defendants in the federal proceeding raised Younger abstention as

a bar to relief, asserting that "the plaintiffs should have

intervened in the state court injunction proceeding and then they

could have gotten the adjudication they want, in the state

courts."   47 F.3d at 848.   The Court of Appeals held that there

was no duty to intervene, observing that "nothing in Younger or

the cases following it suggests that persons claiming a violation

of their federal rights have an obligation before turning to
federal court to see whether there is some state court proceeding

they might join in order to present their federal claims there."

Id.

          If a would-be federal plaintiff in a civil rights

action has no duty to attempt to intervene in an ongoing state

suit in which he might be able to tender his constitutional

issue, it follows, we believe, that FOCUS, once rejected by the

court that entered the gag order, had no duty to exhaust all

extraordinary state remedies in an attempt to intervene.     The

Younger doctrine is based on comity and the notion that comity

makes it undesirable to permit a party access to a federal court

when he is currently involved in state proceedings where he can

secure an adjudication of his constitutional claim.     We believe

FOCUS has done everything that considerations of comity can

reasonably require of it.   It could have gone directly to federal

court without seeking to intervene.   Consistent with

considerations of comity, however, it afforded the court of

common pleas an opportunity to adjudicate its constitutional

challenge but was rebuffed without a ruling on that challenge.

The interests of comity would be ill served, we believe, were we

to hold that FOCUS by so acting in the service of comity had

erected substantial barriers to its federal court access.     We

decline to so hold.

          Because there is no ongoing state proceeding in which

FOCUS can secure an adjudication of its constitutional claim, we

hold that Younger abstention was inappropriate.
                               V.

          Finally, citing Hoover v. Wagner, 47 F.3d 845 (7th Cir.

1995), the defendants assert "basic principles of equity" as

alternative grounds for affirming the district court.     As we have

explained, in Hoover potential anti-abortion protestors and a

journalist--none of whom were named defendants in the state court

action--sought declaratory and injunctive relief against the

state court injunction on the ground that the order violated

their rights under the First Amendment.   After first finding

Younger inapplicable, the court of appeals affirmed the district

court's dismissal because the remedy sought was unworkable.

          The court reasoned:
          [The plaintiffs] want the federal court to
          tell the state judge to rewrite his
          injunction to make it clearer, to refrain
          from convicting anybody who does not really
          and truly violate the injunction as revised,
          and to tell the police chief and the judge
          not to infer that people are assisting in
          violating the injunction from their mere
          proximity to defendants named in the
          injunction. The relief that the plaintiffs
          seek is at once an insult to the judicial and
          law enforcement officials of Wisconsin, an
          interference with an ongoing state court
          proceeding, and an empty but potentially
          mischievous command to these officials to
          avoid committing any errors in the
          enforcement of the [state court] injunction
          . . . .
               . . . The plaintiffs' able counsel,
          when pressed at oral argument, was unable to
          suggest a useful amendment to the injunction
          and acknowledged that what he really wants
          from the federal courts is a firm warning to
          Wisconsin officialdom that they are not to
          trample on his clients' constitutional
          rights. . . . [T]he difficulty of framing a
          useful injunction, when considered in
          conjunction with the affront to comity that
          such an injunction would constitute and the
          nebulous and speculative character of the
          fears that have led the plaintiffs to sue,
          convinces us that this suit is an
          inappropriate invocation of the equity powers
          of the federal courts.


Id. at 850-51.
          Hoover is inapposite.    The plaintiffs in Hoover did not

claim that the state court injunction as written violated their

First Amendment rights; they asserted only that it was capable of

being applied in a manner that violated those rights.     They were

asking the federal court to warn the state court and police

officials to enforce the injunction in a constitutional way.    The

plaintiffs here, on the other hand, complain that the gag orders

can only be applied in ways that infringe on their First

Amendment rights to receive information from willing speakers who

will not speak solely because of those orders.    While the

district court may be confronted with a difficult merits issue

when it attempts to reconcile First Amendment interests with

Pennsylvania's interest in confidentiality for family court

proceedings, there is no reason to believe that it will have any

greater difficulty in fashioning an effective remedy than in any

other § 1983 action challenging the constitutionality of state

action.   Thus, we cannot say that "this suit is an inappropriate

invocation of the equity powers of the federal courts."    Id. at
851.



                                  VI.
          For the foregoing reasons, we will reverse the district

court's order granting the motion to dismiss and remand for

further proceedings consistent with this opinion.
