On petition for writ of
certiorari to the United States Court of Appeals for the Fourth
Circuit.
The petition for a writ of certiorari is denied.
Justice WHITE, with whom Justice BRENNAN joins, dissenting from
the denial of certiorari.
This case arises from a child custody dispute between private
parties . A Virginia trial court awarded petitioner's ex-wife
custody of their 3- year old son and ordered petitioner to pay
child support. Petitioner then brought this action under 42 U.S.C.
1983 against the trial judge, the state governor, and the state
attorney general. His complaint sought monetary, injunctive, and
declaratory relief, premised on allegations that the custody and
support award violated the First, Fifth, Thirteenth, and Fourteenth
Amendments. The District Court dismissed the suit without prejudice
because
Page 458 U.S.
1112 , 1113
the constitutional questions could be addressed in the state
court custody action.
The Court of Appeals for the Fourth Circuit affirmed.
673 F.2d
1309 ( 1981). In a brief per curiam opinion, the court
explained:
"Under Virginia law, child custody
determinations and support orders may be subject to modification at
any time. See Va.Code Ann. 16.1- 242 (1981 Cum.Supp.); 20-108 (1975
Repl.Vol.); 31-17 (1979 Repl. Vol.). Because custody proceedings
are considered ongoing proceedings in Virginia, they afford a
disappointed litigant, such as [ petitioner], an adequate
opportunity to present his constitutional claims. Younger v.
Harris,
401 U.S.
37, 49 [, 753, 27 L. Ed. 2d 669] (1971). See Juidice v. Vail,
430 U.S. 327, 337
[, 1218] (1977). Therefore, it is clear that the doctrine of
abstention applies in this instance. See Moore v. Sims,
442 U.S. 415 []
(1979).
Petitioner now seeks a writ of certiorari, and presents, as his
fourth question, the question of whether the Court of Appeals has
properly applied the Younger doctrine. [
Footnote 1]
This question is not easily answered because the Fourth Circuit
has, in at least two respects, gone beyond our cases in dismissing
the action under Younger v. Harris,
401 U.S. 37 (1971). First,
this Court has never applied the Younger doctrine to a case where
the State was not a party to the pending state proceedings. Younger
and its early progeny were criminal proceedings, in which, of
course, the State is always a party. In Huffman v. Pursue, Ltd.,
420 U.S. 592, 95
S. Ct. 1200 (1975), the initial application of Younger to a civil
proceeding, the Court relied heavily on the State's direct
participation.
"Younger, however, also rests upon
the traditional reluctance of courts of equity, even within a
unitary system,
Page 458 U.S.
1112 , 1114
to interfere with a criminal prosecution. Strictly speaking,
this element of Younger is not available to mandate federal
restraint in civil cases. But whatever may be the weight attached
to this factor in civil litigation involving private parties, we
deal here with a state proceeding which in important respects is
more akin to a criminal proceeding than are most civil cases. The
State is a party to the Court of Common Pleas proceeding, and the
proceeding is both in aid of and closely related to criminal
statutes. . . ." Id., at 604, 95 S. Ct. at 1208.
Accordingly, subsequent extensions of Younger in the civil
context have occurred only when the State was directly involved in
a pending state proceeding. [
Footnote 2] The Fourth Circuit's invocation of Younger in
this case, a " civil litigation involving private parties,"
represents a substantial broadening of the doctrine.
Second, the Court of Appeals held that deference was justified
despite the fact that there was no on-going or pending state
proceedings in the usual sense. Dismissal of the federal action was
deemed appropriate because child custody orders in Virginia are
subject to modification at any time and petitioner could follow
that avenue in order to raise his constitutional claims. It is
clear that, under the Court of Appeals reasoning, custody
proceedings would never be final and petitioner would be forced to
attempt to reopen state proceedings before receiving a hearing in
federal court on any constitutional grounds. None of our Younger
decisions contemplates this result, which, in effect, imposes an
exhaus-
Page 458 U.S.
1112 , 1115
tion requirement upon petitioner before he may bring a 1983 suit
in federal court. Assertion of a federal claim under 1983, as a
general matter, need not be preceded by an attempt to vindicate
that claim in state court. McNeese v. Board of Education,
373 U.S.
668, 672, 1435 (1963). Although there are recognized exceptions
when "strands of local law are woven into the case" whose
resolution should precede consideration by a federal court, id., at
673, this is not suggested to be such a case. Moreover, if it were,
the District Court should refrain temporarily from exercising its
jurisdiction, but should not dismiss the case outright. See
Railroad Comm'n v. Pullman Co.,
312 U.S. 496 (1941).
A case of this type has not previously been thought to fall
within the reach of the Younger doctrine. Obviously, the extension
of Younger to pending civil suits between private litigants is not
a party is an issue requiring ultimate resolution by this Court.
Indeed, the applicability of Younger to all civil litigation is a
question that has expressly been reserved for another day on no
less than four occasions. Moore v. Sims,
442 U.S. 415, 423, n. 8,
2377, n. 8 (1979); Trainor v. Hernandez,
431 U.S. 434, 445, n. 8,
1919, n. 8 (1977); Juidice v. Vail,
430 U.S. 327, 336, n. 13,
1218 n. 13 (1977); Huffman v. Pursue, supra, 420 U.S., at 607. Now
that the day has arrived with the decision of the Fourth Circuit, I
would grant certiorari.
Footnotes
Footnote 1 I agree that
review of the three other questions presented in the petition,
concerning the merits of his cause and the absence of an automatic
right of appeal, is unwarranted.
Footnote 2 See Juidice v.
Vail,
430 U.S.
327 ( 1977) (civil contempt proceedings); Trainor v. Hernandez,
431 U.S. 434
(1977) (state civil enforcement action brought by state officials
seeking return of fraudulently obtained welfare benefits); Moore v.
Sims,
442 U.S.
415 ( 1979) (civil proceeding brought by state officials to
seizure custody of abused children); Middlesex Ethics Comm. v.
Garden State Bar Assn.,
457 U.S. 423 (1982)
(attorney disciplinary proceedings).
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