Robert Wexler v. Theresa Lepore, 385 F.3d 1336, 11th Cir. (2004)

385 F.
3d 1336
Robert WEXLER, Congressman, Addie Greene,

Commissioner, et al., Plaintiffs-Appellants,
v.
Theresa LEPORE, Supervisor of Elections for Palm Beach
County, Kay Clem, Supervisor of Elections for Indian River
County, Florida and President of the Florida Association of
Supervisors of Elections, et al., Defendants-Appellees.
No. 04-12826.
United States Court of Appeals, Eleventh Circuit.

September 27, 2004.
Appeal from the United States District Court for the Southern District of
Florida.
Robert S. Peck, Ctr. for Const. Lit., Washington, DC, Jeffrey M. Liggio,
Liggio, Benrubi & Williams, PA, West Palm Beach, FL, for PlaintiffsAppellants.
Ronald A. Labasky, Landers & Parsons, P.A., George L. Waas, Atty.
Gen.-Dept. of Legal Affairs, Tallahassee, FL, Paul C. Huck, Jr., Ft.
Lauderdale, FL, for Defendants-Appellees.
Dennis James Plews, Finkelstein & Associates, P.A., Sarasota, FL, for
Amici Curiae.
Before EDMONDSON, Chief Judge, FAY, Circuit Judge, and
CORRIGAN * , District Judge.
PER CURIAM:
Citing the Younger doctrine, the district court abstained from exercising its
jurisdiction to hear Appellants' constitutional challenge to the method of
recounting electoral votes in fifteen Florida counties. We vacate that decision
and remand for a consideration of the merits.
BACKGROUND
2
Plaintiff-Appellant Wexler filed two actions challenging the recount system in

fifteen Florida counties. The first, filed in a Florida state court on 16 January
2004, asserted claims exclusively under Florida law.1 Plaintiff-Appellant
Wexler, along with Appellants Greene, Aaronson and Fransetta filed this action
in the district court on 8 March 2004. The federal suit alleges violations of the
United States Constitution and is brought under 42 U.S.C. 1983.
The same facts underlie both actions. Fifteen Florida counties use a paperless,
touchscreen method of voting. As is alleged, these touchscreen systems do not
produce a paper record of votes. Accordingly, the fifteen counties where they
are employed lack a manual recount procedure, which is available in Florida's
remaining fifty-two counties. In the federal claim, Plaintiffs allege this "nonuniform, differential standard" violates their rights to due process and equal
protection under the Fifth and Fourteenth Amendments to the United States
Constitution.2 Citing the Younger doctrine, the district court abstained from
hearing Appellants' constitutional challenge, and it dismissed Appellants' suit.3
STANDARD OF REVIEW
4
We review a district court's decision to abstain from exercising its jurisdiction

for an abuse of discretion. 31 Foster Children v. Bush, 329 F.3d 1255, 1274
(11th Cir.2003). An error of law constitutes an abuse of discretion. Major
League Baseball v. Crist, 331 F.3d 1177, 1183 (11th Cir.2003) (citing United
States v. Pruitt, 174 F.3d 1215, 1219 (11th Cir.1999)).
DISCUSSION
5
In Younger, the Supreme Court acknowledged that "Our Federalism" values
the notion of "comity," that is, a proper respect for state functions, a recognition
... that the entire country is made up of a Union of separate state governments,
and a continuance of the belief that the National Government will fare best if
the States and their institutions are left free to perform their separate functions
in their separate ways.
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971).4
Federal courts should abstain from exercising their jurisdiction if doing so

would "disregard the comity between the States and the National Government."
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 1526, 95 L.Ed.2d 1
(1987). While such abstention "espouses a strong federal policy," Middlesex
County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515,
2521, 73 L.Ed.2d 116 (1982) ("Middlesex"), it remains "the exception, not the
rule" to the federal courts'"virtually unflagging" duty "to adjudicate claims
within their jurisdiction." New Orleans Pub. Serv., Inc. v. Council of the City of
New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 2513, 105 L.Ed.2d 298 (1989)
(citations omitted) ("NOPSI").
9
As in Younger itself, the doctrine usually applies in cases involving criminal

prosecution or the criminal justice system. See, e.g., Rizzo v. Goode, 423 U.S.
362, 96 S.Ct. 598, 608-9, 46 L.Ed.2d 561 (1976) (reversing lower court's
decision to "[inject] itself by injunctive decree into the internal disciplinary
affairs" of municipal and police agencies); O'Shea v. Littleton, 414 U.S. 488, 94
S.Ct. 669, 678, 38 L.Ed.2d 674 (1974) (rejecting challenge to state criminal
justice system "aimed at controlling or preventing the occurrence of specific
events that might take place in the course of future state criminal trials");
Luckey v. Miller, 976 F.2d 673, 677-78 (11th Cir.1992) (abstaining from
attempt to "restrain every indigent prosecution and contest every indigent
conviction until the systemic improvements [plaintiffs] seek are in place"). See
also Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800, 96 S.Ct.
1236, 1245-46, 47 L.Ed.2d 483 (1976) (describing Younger abstention as
limited to restraining state criminal proceedings).
10
Early on, however, the Court said that Younger abstention can apply to pending
civil proceedings that are "akin to a criminal prosecution." Huffman v. Pursue,
Ltd., 420 U.S. 592, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975) (nuisance
statute). See also Middlesex, 102 S.Ct. at 2518 (state bar disciplinary hearing).
Later, the Court applied Younger in a strictly civil context. Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 1526, 95 L.Ed.2d 1 (1987). In
Pennzoil Co., the state court defendant failed to raise its constitutional
challenge to Texas's judgment lien and appeal bond provisions. The Supreme
Court said abstention was proper because (1) the state system was qualified to
hear the constitutional defense; and (2) an injunction would interfere with "the
execution of state judgments, ... [and] the very process by which those
judgments were obtained." Id. at 1527.
11
The Supreme Court's most recent decision under Younger illustrates that the
abstention doctrine is not triggered unless the federal injunction would create
an "undue interference with state proceedings." NOPSI, 109 S.Ct. at 2513
(citing Younger, 91 S.Ct. at 751). In addition, the state proceedings at issue
must involve "certain orders that are uniquely in furtherance of the state courts'
ability to perform their judicial functions ... it has never been suggested that
Younger requires abstention in deference to a state judicial proceeding
reviewing legislative or executive action." Id. at 2518.
12
With these precedents in mind, we turn to the exact question presented here:
should the district court have abstained under Younger just because of a
pending state civil action where Appellants raised exclusively state law claims
arising from the same facts at issue in the federal action? We conclude the
answer is "no."
13
First, we find no federal authority supporting the proposition that federal claims
that might be supported by the same alleged facts must be raised by state
plaintiffs in cases arising under state law in state courts. Instead, we recall the
Supreme Court's reasoning from 1964: "[t]here are fundamental objections to
any conclusion that a litigant who has properly invoked the jurisdiction of a
Federal District Court to consider federal constitutional claims can be
compelled ... to accept instead a state court's determination of those claims."
England v. La. State Bd. of Med. Examiners, 375 U.S. 411, 84 S.Ct. 461, 464,
11 L.Ed.2d 440 (1964).5 We recently wrote that "generally, as between state
and federal courts, the rule is that the pendency of an action in the state court is
no bar to proceedings concerning the same matter in the Federal court having
jurisdiction." Ambrosia Coal & Constr. Co. v. Morales, 368 F.3d 1320, 1328
(11th Cir.2004) (quoting Colorado River).
14
Second, we have found no binding precedent requiring federal plaintiffs to raise

federal claims in pending state court proceedings where they are also plaintiffs.
Abstention might be more appropriate when the federal plaintiff, as a defendant
in state court, chose not to assert a constitutional defense. Abstention in those
cases acknowledges state courts' ability to entertain constitutional issues. See,
e.g., Younger, 91 S.Ct. at 746; Huffman, 95 S.Ct. at 1200; Middlesex, 102 S.Ct.
at 2515; Pennzoil Co., 107 S.Ct. at 1519. See also, News-Journal, Corp. v.
Foxman, 939 F.2d 1499, 1500 (11th Cir.1991) (affirming abstention when
entities subject to state court gag-rule raised constitutional issues in pending
state court claim).
15
Third, we do not accept that the existence of a parallel state court action would
warrant abstention in federal court, unless the requested federal relief would
result in meticulous and burdensome federal oversight of state court or courtlike functions. See, e.g., Rizzo, 96 S.Ct. at 608-9 (refusing to grant injunctive
relief regarding "the internal disciplinary affairs" of municipal and state
agencies); O'Shea, 94 S.Ct. at 679 (rejecting "continuous supervision" of future
criminal trial proceedings). We abstained in such situations. See, e.g., 31 Foster
Children, 329 F.3d at 1278-79 (addressing relief that would take "responsibility
for a state's child dependency proceedings away from state courts and [put] it
under federal court control"); Miller, 976 F.2d at 677-79 (abstaining when
requested relief would, "inevitably, interfere with every state criminal
proceeding").6
16
Other circuits have reached the same conclusion on the same issue before us
that we do today. The Younger doctrine does not require abstention merely
because a federal plaintiff, alleging a constitutional violation in federal court,
filed a claim under state law, in state court, on the same underlying facts. See
Rogers v. Desiderio, 58 F.3d 299, 301 (7th Cir.1995); Marks v. Stinson, 19
F.3d 873, 882 (3rd Cir.1994); Crawley v. Hamilton County Comm'rs, 744 F.2d
28, 30 (6th Cir.1984). As recognized, the exercise of federal jurisdiction in such
a circumstance would not prevent the state court from exercising its jurisdiction
just as a state court's ruling against the parties who are federal plaintiffs would
not offend the federal courts.
17
To determine whether Younger abstention was proper, the district court

considered whether the federal action before it would interfere with the ongoing
state action. See Wexler v. Lepore, 319 F.Supp.2d 1354, 1361-63
(S.D.Fla.2004). 7 It answered that question in the affirmative. The district court
concluded that the relief sought by Appellants would directly interfere with the
state proceeding: seemingly by potentially rendering moot the state proceeding.
Id. We conclude that this determination constituted an error of law: without
showing an undue interference on state proceedings, abstention is not permitted.
NOPSI, 109 S.Ct. at 2513 (citing Younger, 91 S.Ct. at 751); 31 Foster
Children, 329 F.3d at 1276.
18
We interpret the Younger doctrine as preventing federal courts from being the
grand overseers of state courts and court-like administration. The "comity"
Justice Black wrote of is mostly a comity between state courts and federal
courts; and just as the Florida state court action could have mooted this federal
court action, the same is true in reverse. A dispositive decision by either court
does not offend the respectful relationship between state and federal courts, nor
would it place the district court in the role of supervisor of state litigation or the
state court. As presented here, an exercise of jurisdiction by the district court
merely preserves the federal forum for federal claims raised by plaintiffs in a
federal proceeding, although a similar state action was also filed. Most
important, if the injunctive relief Plaintiff-Appellants request is granted, the
result will not be the kind of federal takeovers at issue in 31 Foster Children or
Miller.
19
As indicated in NOPSI,"the federal court's disposition of such a case may well

affect, or for practical purposes preempt, a future or as in the present
circumstances, even a pending state-court action. But there is no doctrine
that the availability or even the pendency of state judicial proceedings excludes
the federal courts." NOPSI, 109 S.Ct. at 2521. Like that case, a decision in the
instant federal case might, as a practical matter, lead to a state proceeding's
coming to an end, but on entirely different grounds than those raised or
could have been raised as a defense in the state action when it was filed.
20
Thus, the parallel proceedings brought by Appellant Wexler do not present the
"undue interference" in state court proceedings necessary to apply Younger.
NOPSI, 109 S.Ct. at 2513. Nor would a federal injunction of the kind sought in
this case, usurp the state courts' ability to "perform their judicial functions." Id.
at 2518. See also Pennzoil Co., 107 S.Ct. at 1526. We, therefore, vacate the
district court's dismissal and remand the action for a determination of
Appellant-Plaintiffs' claim.
21
VACATED AND REMANDED.
Notes:
*
Honorable Timothy J. Corrigan, United States District Judge for the Middle
District of Florida, sitting by designation
Citing a lack of standing, the state trial court dismissed Appellant Wexler's state
law claim with prejudice. The District Court of Appeals for the Fourth District
reversed on the standing issue, but it has affirmed the dismissal of Wexler's
state claims as moot and for failure to establish a likelihood of success on the
meritsWexler v. Lepore, 878 So.2d 1276, 1278 (Fla.App. 4 Dist.2004).
In the state court action, Wexler only asserted violations of Florida law
The district court rejected Appellees' arguments under thePullman and

Colorado River doctrines. Railroad Comm'n v. Pullman, Co., 312 U.S. 496, 61
S.Ct. 643, 85 L.Ed. 971 (1941); Colo. River Water Conservation Dist. v. United
States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). AppelleeDefendants did not cross-appeal that portion of the lower court's decision; we
do not consider those doctrines here.
InYounger, a federal plaintiff challenged the constitutionality of a state statute

under which he was being prosecuted as a defendant. The Court abstained from
hearing plaintiff's claim, concluding that a sufficient state forum existed for the
plaintiff to raise his constitutional defense. Younger, 91 S.Ct. at 755.
5
This reasoning is even more compelling in the light of the Florida Appellate
Court's dicta: "The [state trial] court, however, indicated any attempt to amend
the complaint to raise a cognizable constitutional claim would be futile. In
essence, the court implied a failure to state a cause of action for declaratory
relief."Wexler, 878 So.2d at 1280. No federal constitutional claims were
litigated in the state court. At oral argument, Appellees suggested that, now that
the state appellate court has ruled in favor of defendants in the state court
action, the Rooker-Feldman doctrine may apply to bar this federal action. We
disagree that the Rooker-Feldman doctrine applies to the circumstances of this
case.
Appellees rely onAmbrosia Coal & Constr. Co. v. Morales, 368 F.3d 1320
(11th Cir.2004). Ambrosia addressed Colorado River abstention; this case turns
on Younger analysis, because the Colorado River issue is not before this Court.
31 Foster Children, decided after NOPSI, considered the first element of the
Middlesex test a potentially dispositive threshold inquiry for Younger analysis.
As we said there, "[i]f there is no interference, then abstention is not required."
329 F.3d at 1276.

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385 F.

Robert WEXLER, Congressman, Addie Greene,

United States Court of Appeals, Eleventh Circuit.

Plaintiff-Appellant Wexler filed two actions challenging the recount system in

We review a district court's decision to abstain from exercising its jurisdiction

In Younger, the Supreme Court acknowledged that "Our Federalism" values

Federal courts should abstain from exercising their jurisdiction if doing so

As in Younger itself, the doctrine usually applies in cases involving criminal

Second, we have found no binding precedent requiring federal plaintiffs to raise

To determine whether Younger abstention was proper, the district court

As indicated in NOPSI,"the federal court's disposition of such a case may well

VACATED AND REMANDED.

The district court rejected Appellees' arguments under thePullman and

InYounger, a federal plaintiff challenged the constitutionality of a state statute

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