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Johnson v. Kelly

decided: September 29, 1978.



Before Seitz, Chief Judge, Aldisert and Rosenn, Circuit Judges.

Author: Seitz


Plaintiffs appeal from an order of the district court dismissing their constitutional challenge to the validity of tax sales conducted against their properties pursuant to the Pennsylvania County Return Act, Act of May 29, 1931, P.L. 280, §§ 1-21, as amended, 72 P.S. §§ 5971a-t. The district court, concluding that it was constrained from reaching the merits of plaintiffs' claim, dismissed the complaint "in deference to the principles explained in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), and its progeny . . . ." Johnson v. Kelly, 436 F. Supp. 155, 158 (E.D.Pa.1977).


The named plaintiffs in this proposed class action, Doris E. Johnson, Joseph Massey, and Joseph and Mary Tunstall, are former owners of residential property located in Delaware County, Pennsylvania, that has been sold at a County Treasurer's tax sale for the alleged nonpayment of local property taxes. Defendants Grace Building Company, Inc. and Curtis Building Company, Inc. are the tax sale purchasers of the properties in question; the third named defendant is E. Jack Ippoliti, Prothonotary of the Delaware County Court of Common Pleas (substituted for Robert F. Kelly, who occupied that office at the time the complaint was filed).

The factual setting of this case with regard to each of the named plaintiffs is set out at some length in the district court's opinion. See Johnson v. Kelly, supra at 159-61. Each of the three controversies developed around a common factual pattern which, given the district court's disposition of the case below, need only be briefly summarized here. The tax sales of the plaintiffs' property were conducted because of their alleged nonpayment of Delaware County property taxes. The parties stipulated that the Johnson and Massey properties were purchased by Grace Building at a 1969 tax sale for $198.31 and $268.06, respectively. The Tunstalls' property was purchased by Curtis Building at a 1968 tax sale for $424.44. The purchase prices were equivalent to the amount of the alleged tax delinquencies and each property had a fair market value far greater (ranging from $8,000 to $30,000) than the tax sale purchase price. The Tunstalls continued to pay local property taxes to Delaware County from 1968 until 1971, but those payments were not credited against the 1966 delinquency which had triggered the tax sale.

The County Return Act, which governed the sales, requires that the record owners of such property be notified prior to the date of sale by certified or registered mail, and by newspaper publication. The Act also provides that failure of the owner to receive personal notice of the sale shall not serve to prejudice the title acquired by a tax sale purchaser as long as the notice was properly sent. See 72 P.S. § 5971g.

All of the plaintiffs here claim that they have no recollection of receiving any notices sent to them by the Delaware County Treasurer's office, and that they did not see the newspaper advertisements regarding the tax sales of their properties. The plaintiffs contend, therefore, that they remained unaware that their properties had been sold until the tax sale purchasers, who are defendants here, instituted state court actions to quiet title and obtain possession. Consequently, none of the plaintiffs exercised his statutory right to redeem the properties within two years of the date of the tax sale. See 72 P.S. § 5971O. It was the pendency of the aforementioned quiet title actions in the state courts of Pennsylvania, presently at various stages of litigation,*fn1 that caused the district court to dismiss plaintiffs' federal complaint on Younger grounds.

The plaintiffs filed a complaint in federal court on October 21, 1975, which requested, inter alia, a declaratory judgment that all Delaware County tax sales held pursuant to the County Return Act*fn2 are unconstitutional, as violative of the due process guarantee of the fourteenth amendment; injunctions preventing tax sale purchasers from commencing or proceeding with state court actions to quiet title to properties purchased at such tax sales and preventing defendant Ippoliti, in his capacity as Prothonotary of the Delaware County Court of Common Pleas, from filing those actions; and an order setting aside the tax sales of the properties of each of the named and class plaintiffs who pay to the Delaware County Treasurer all taxes, penalties, interest, and costs for which the properties were sold or which are presently due.

The plaintiffs' principal constitutional contention is that the County Return Act violates due process by failing to require a judicial determination of the accuracy of an alleged tax delinquency prior to the County's conducting a tax sale, and by failing to require notice by personal service to a property owner whose land is scheduled to be sold for taxes.

The district court, after hearing, dismissed the complaints of all three named plaintiffs on Younger grounds and thus did not reach the issue of class certification. Johnson v. Kelly, supra at 158 & n.3. Plaintiffs Johnson and Massey, on behalf of themselves and the class they seek to represent, appeal from that order.


At the outset of its discussion of the legal issues presented here, the district court noted that "(t)here are two judicially created abstention doctrines which are potentially applicable in this case." Id. 162 (footnotes omitted). The court concluded that the first of these doctrines Pullman abstention, See Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) is inapplicable to the factual allegations and constitutional claims presented in this case. Johnson v. Kelly, supra at 162. However, after considering the contours of the second doctrine, formulated by the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), and its progeny, the district court concluded that it "must abstain from reaching the merits of the controversy and order that the complaint be dismissed." Johnson v. Kelly, supra at 167 (footnotes omitted). It is the application of Younger principles to this federal action that is the subject of this appeal.

In Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), the Supreme Court reversed the order of a three-judge district court that had enjoined the Los Angeles County District Attorney from prosecuting the plaintiff, Harris, who had been indicted in a California state court on a charge of violating the California Criminal Syndicalism Act. The Court held that the district court's judgment "must be reversed as a violation of the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances." 401 U.S. at 41, 91 S. Ct. at 749. (footnote omitted).

Justice Black, writing for the Court, articulated the following principles as the "primary sources" of that national policy. First, he referred to "the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." Id. 43-44, 91 S. Ct. at 750. This principle he found to serve the policies of preventing erosion of the role of the jury in criminal cases, and to avoid a duplication of legal proceedings and legal sanctions. Id. 401 U.S. 37 at 44, 91 S. Ct. 746, 27 L. Ed. 2d 669. In addition, Justice Black found this principle of equitable restraint with respect to criminal prosecutions to be "reinforced by an even more vital consideration, the notion of "comity,' that is, a proper respect for state functions, a recognition of the fact 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." Id. This principle, which Justice Black felt was embodied in the phrase "Our Federalism," is a concept which represents "a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States." Id.

Several years passed before the Supreme Court decided that the principles articulated by Justice Black in Younger could be applicable to federal court intervention in a state civil proceeding. In Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975), the Court created a limited "civil counterpart" to the Younger doctrine, but made "no general pronouncements upon the applicability of Younger to all civil litigation." 420 U.S. at 607, 95 S. Ct. at 1209. In Huffman, the sheriff and prosecuting attorney of Allen County, Ohio, appealed the order of a three-judge district court that had permanently enjoined the execution of a state court judgment closing the plaintiff's theater for one year for displaying obscene films. The state court had issued its judgment in a civil enforcement proceeding brought against the plaintiff under the Ohio public nuisance statute. Rather than appealing the state court's order within the Ohio court system, the theater owner filed suit in federal district court seeking an injunction against its execution. The district court found the statute to constitute an overly broad prior restraint on first amendment rights and granted the requested injunctive relief. Id. 420 U.S. 592, 595-99, 95 S. Ct. 1200, 43 L. Ed. 2d 482.

In Huffman, Justice Rehnquist suggested that the comity and federalism strand of Younger is applicable to a civil proceeding "quite as much as it is to a criminal proceeding." Id. 604, 95 S. Ct. at 1208. He based this conclusion on four aspects of federal court interference with a pending state judicial proceeding that raise federalism concerns: 1) the prevention of state effectuation of its substantive policies; 2) the prevention of the state court from providing a forum competent to vindicate constitutional objections interposed against those policies; 3) the creation of duplicative legal proceedings; and 4) the creation of a negative reflection upon the state court's ability to enforce constitutional principles. Id. Justice Rehnquist recognized, however, that the Younger doctrine also rests upon the reluctance of courts of equity to interfere with criminal prosecutions, and that "strictly speaking, this element of Younger is not available to mandate federal restraint in civil cases." Id.

Nonetheless, Justice Rehnquist found the public nuisance proceeding at issue in Huffman to be "more akin to a criminal prosecution than are most civil cases," Id., leading him to conclude that Younger principles should be applied in that case. He also suggested that the factors that rendered the public nuisance proceeding "akin to a criminal prosecution" might not be presented in "civil litigation involving private parties." Id. Among those factors he listed the fact that the state was a party to the civil nuisance proceeding, and that the proceeding was in aid of, and closely related to, criminal statutes regulating the dissemination of obscene materials. "Thus," he concluded, "an offense to the State's interest in the nuisance litigation is likely to be every bit as great as it would be were this a criminal proceeding." Id. (citation omitted).

The Supreme Court has further defined the scope of the Huffman "civil counterpart" to Younger in two more recent decisions. The first was Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376 (1977), in which judges of the New York state courts appealed from an order of a three-judge district court enjoining the continued operation of New York's statutory civil contempt proceedings. Vail, the federal plaintiff, was a judgment debtor who failed to comply with a creditor's subpoena requiring him to attend a deposition intended to provide the creditor with information relevant to the satisfaction of the judgment. The plaintiff also failed to appear before the Dutchess County Court to answer an order requiring him to show cause why he should not be held in contempt. Following his refusal to pay a fine, Vail was arrested and jailed. Shortly after his release Vail commenced a federal action against the judges of the state courts, challenging the constitutionality of the civil contempt proceedings. He brought the action on behalf of himself and other judgment debtors, some of whom were subject to pending contempt proceedings. 430 U.S. 327 at 328-33, 97 S. Ct. 1211, 51 L. Ed. 2d 376.

The district court in Juidice decided that Younger principles were not applicable to the pending civil contempt proceedings because they were not tied to the state's enforcement of its criminal laws. Id. 430 U.S. 327 at 333 & n.10, 97 S. Ct. 1211, 1217, 51 L. Ed. 2d 376. Justice Rehnquist, writing for the Court, stated that "the "more vital consideration' behind the Younger doctrine of nonintervention lay not in the fact that the state criminal process was involved but rather in "the notion of comity,' . . ." that was first articulated by Justice Black in Younger itself. Id. 334, 97 S. Ct. at 1217. He went on to hold that "federal-court interference with the State's contempt process is "an offense to the State's interest . . . likely to be every bit as great as it would be were this a criminal proceeding,' " Id. 336, 97 S. Ct. at 1217 (citation omitted), and that such interference with the State's legitimate activities could also be interpreted as reflecting negatively upon the state court's ability to enforce constitutional principles. Id.

Justice Rehnquist acknowledged that the contempt process enjoined by the lower court in Juidice served to vindicate the private interests of competing litigants, but he emphasized that ". . . its purpose is by no means spent upon purely private concerns. It stands in aid of the authority of the judicial system, so that its orders and judgments are not rendered nugatory . . .. " Id. 336 n.12, 97 S. Ct. at 1217 (citations omitted).

Once again, the Court in Juidice "save(d) for another day the question of "the applicability of Younger to all civil litigation .. . .' " Id. 336 n.13, 97 S. Ct. at 1218.

The most recent opinion in which the Supreme Court has considered the boundaries of the Younger doctrine is Trainor v. Hernandez, 431 U.S. 434, 97 S. Ct. 1911, 52 L. Ed. 2d 486 (1977). In Trainor, a three-judge district court held that provisions of the Illinois Attachment Act were violative of the due process clause of the fourteenth amendment, and the court enjoined all Illinois court clerks and sheriffs from issuing or serving attachment writs. The plaintiffs who instituted the lawsuit were themselves defendants in a state court civil suit brought by the Illinois Department of Public Aid, in which it was alleged that they had fraudulently concealed assets while receiving public assistance, and which sought the return of money alleged to have been wrongfully received. The Department had also secured a writ of attachment against the plaintiffs' property, which the plaintiffs did not seek to challenge in the pending state proceedings. 431 U.S. 434 at 435-38, 97 S. Ct. 1911, 52 L. Ed. 2d 486.

The district court in Trainor ruled that Younger principles did not apply to the state court attachment proceedings because the Attachment Act did not provide a cause of action exclusively to state officials, as had been the case with the public nuisance statute at issue in Huffman, and because attachment proceedings were not necessarily "quasi-criminal" in nature, although they happened to be related to the state's enforcement of criminal law in that case. Id. 431 U.S. 434 at 439, 97 S. Ct. 1911, 52 L. Ed. 2d 486.

Justice White, writing for a five member majority of the Supreme Court, reversed that ruling. He phrased the question to be resolved in Trainor as follows:

Id. 440, 97 S. Ct. at 1916.

The Court held that its earlier decisions in Younger, Huffman and Juidice controlled the resolution of that question. In holding Younger principles applicable to the factual situation presented in Trainor the Court emphasized the following factors: an action was pending against the federal plaintiffs in state court when they filed their federal suit; the state action was a suit by the state and the challenged writ of attachment issued as a part of that action; the state was a party to the suit in its role of administering its public-assistance programs; the state's suit and the accompanying writ of attachment were intended to vindicate the important state policy of protecting the fiscal integrity of those programs; and the state authorities had had the option of vindicating that policy through criminal prosecutions. Id. 431 U.S. 434 at 444, 97 S. Ct. 1911, 52 L. Ed. 2d 486. Based on these factors the Court was able to conclude that "the principles of Younger and Huffman are broad enough to apply to interference by a federal court with an ongoing civil enforcement action such as this, brought by the State in its sovereign capacity." Id. (footnote omitted).

Thus, in Trainor the Court placed particular emphasis on the fact that the district court's injunction had interfered with pending state court proceedings in which the state, acting in its sovereign capacity, was pursuing the enforcement of its policies:

Id. 446, 97 S. Ct. at 1919.

In Trainor Justice White reiterated that the Court was not presented with an occasion to decide whether Younger principles apply to all civil litigation. Id.431 U.S. 434 ...

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