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Lehman v. Lycoming County Children's Services Agency

March 31, 1981; As Amended April 6, 7, 13, 1981.

LEHMAN, MARJORIE, ON BEHALF OF HER CHILDREN, WILLIAM LEHMAN, MARK LEHMAN, FRANK LEHMAN
v.
LYCOMING COUNTY CHILDREN'S SERVICES AGENCY, LYCOMING COUNTY COURT HOUSE, WILLIAMSPORT, PA. 17701 MARJORIE LEHMAN AND HER CHILDREN ON WHOSE BEHALF THIS ACTION WAS FILED, APPELLANTS



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 79-0065)

Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.

Author: Garth

Opinion ANNOUNCING THE JUDGMENT OF THE COURT

This case requires us to determine whether a petition for a writ of habeas corpus is available for a federal constitutional challenge to Pennsylvania's statutory scheme for involuntarily terminating a parent's rights in her children. We hold that habeas corpus is not appropriate for the constitutional challenge here, and thus we affirm the district court's dismissal of Ms. Lehman's petition.

I.

The facts giving rise to the instant petition are detailed in full in In re William L., 477 Pa. 322, 383 A.2d 1228, cert. denied, 439 U.S. 880, 99 S. Ct. 216, 58 L. Ed. 2d 192 (1978), the Pennsylvania Supreme Court decision which held that Ms. Lehman's parental rights were properly terminated under a constitutional act. We recount some of the relevant circumstances drawn from the factual recital of that case, not to evaluate the merits of Ms. Lehman's constitutional claims, but rather to determine whether these facts constitute an extraordinary case impinging with especial harshness on personal liberty the hallmark for determining whether the requirement for the habeas corpus has been satisfied.

In June, 1971, appellant Marjorie Lehman, then age 39, was living with her three sons who are the subject of this proceeding: Frank, then age 7, William, then age 5, and Mark, then age 1. At that time she was pregnant with her youngest daughter Tracie. Tracie has lived with her mother since her birth. Ms. Lehman's eldest child, Carol, has lived with Ms. Lehman's parents for many years, and Ms. Lehman does not seek her return. In June, 1971, when pregnant with Tracie, Ms. Lehman voluntarily surrendered custody of her three sons to the Lycoming County Children's Services Agency (the Agency). Ms. Lehman had come to the attention of the Agency sometime earlier as a result of the deplorable living conditions that obtained in her apartment. Ms. Lehman and the caseworker agreed that the home was unfit for children.

After Tracie's birth, the Agency helped Ms. Lehman find a new apartment. Ms. Lehman vacillated between seeking an apartment large enough to accommodate only herself and Tracie, and one large enough for the three boys as well. She ultimately selected one suitable only for Tracie and herself. The boys remained in foster care. In November, 1974, more than three years after she had surrendered custody of her sons, Ms. Lehman requested that the boys be returned to her. At the time, she was still in the apartment suitable only for Tracie and herself. The Agency, concluding that Ms. Lehman could not provide her sons with necessary support and supervision, declined to return them. The Agency then filed a petition in the Court of Common Pleas of Lycoming County under section 311(2) of the Pennsylvania Adoption Act of 1970,*fn1 seeking to terminate Ms. Lehman's parental rights in the three boys, so that they could be placed for adoption without Ms. Lehman's consent.

Most of the evidence at the hearing on this petition consisted of the testimony of nutrition aides and caseworkers from the Agency who had visited with Ms. Lehman. After Tracie's birth, nutrition aides began regular visits to Ms. Lehman's home to help her maintain the household and raise her infant daughter. Ms. Lehman came to rely heavily on these aides to perform even the simplest tasks of everyday life. She made little or no progress in learning to handle problems without assistance. A series of incidents illustrates the depth of Ms. Lehman's incapacity. On one occasion, Tracie was sent home from school because she had lice. The nutrition aide could not make Ms. Lehman understand the need to rid Tracie of the lice or how to perform the simple procedure to achieve this result. Ultimately, as Tracie became upset about missing school, the aide herself was forced to perform the treatments.

On several occasions, Ms. Lehman has had her heat and electricity terminated for her failure to pay the bills. Once, Ms. Lehman sought emergency financial assistance to pay bills for rent, gas, water and electricity that she believed were due. On inquiry, the aide discovered that Ms. Lehman had already paid all of these bills. There was also other evidence of Ms. Lehman's incapacity to conduct her financial affairs responsibly. She told the aides on several occasions of making payment for items, such as toys, that were never delivered. She also told them of turning over her social security checks, her sole source of income, to creditors who would cash the checks, deduct amounts allegedly owed, and return to Ms. Lehman the difference.

As a result of Ms. Lehman's incapacities and the long period almost a decade since her sons have lived with her, relations between Ms. Lehman and the boys have deteriorated. The boys visited their mother in her apartment twice a month during late 1975 and early 1976 under a court ordered visitation plan. Aides present during these visits described them as "free-for-alls" in which Ms. Lehman would chase, in succession, each of the children about the apartment seeking to establish control. The two older boys appeared to do no more than tolerate their mother. The youngest boy, who has lived with a foster family since his first birthday, spent these visits watching television. Each of the boys testified in chambers that he did not want to live with his mother. The oldest boy admitted that he would not obey his mother and that she could not control him.

Other evidence at the hearing focused on Ms. Lehman's intellectual and social skills. A psychologist who administered a series of tests reported that Ms. Lehman has a mental age of six years, ten months, and that her social skills and ability to function independently were those of a twelve year old. The psychologist opined that Ms. Lehman lacked the social and intellectual maturity necessary to raise children.

Based on this testimony, the Court of Common Pleas found the appellant irremediably "incapable of providing minimal care, control and supervision for the three children." In re William Lehman, Nos. 2986-88, slip op. at 4 (C.P. Lycoming Co., June 3, 1976). The court rejected Ms. Lehman's argument that section 311 of the Pennsylvania Adoption Act was unconstitutionally vague. Accordingly, the Common Pleas Court terminated Ms. Lehman's parental rights in her three sons, making them eligible for adoption. The Pennsylvania Supreme Court held that the adoption statute was neither unconstitutionally vague nor violative of substantive due process and then found that the lower court's termination of Ms. Lehman's parental rights was supported by competent evidence,*fn2 In re William L., 477 Pa. 322, 383 A.2d 1228, cert. denied, 439 U.S. 880, 99 S. Ct. 216, 58 L. Ed. 2d 192 (1978).

Ms. Lehman's petition for a writ of certiorari was denied, 439 U.S. 880, 99 S. Ct. 216, 58 L. Ed. 2d 192 (1978), and thereafter she filed a petition for a writ of habeas corpus "on behalf of" her three sons in the United States District Court for the Middle District of Pennsylvania.*fn3 The petition asserted that the Pennsylvania Adoption Act was unconstitutional as applied and/or on its face, and sought the return of the children. It also sought a declaration that Ms. Lehman was their legal parent, or, in the alternative, the release of the children from the Agency's custody unless within sixty days "a hearing is held in the appropriate state court and it is judicially determined to be in the best interests of The Children that temporary custody should remain with the (Agency)."

The district court dismissed the petition for lack of jurisdiction, Lehman v. Lycoming County Children's Services Agency, No. 79-65 (M.D.Pa. Sept. 4, 1979), relying substantially on the holding of the First Circuit in Sylvander v. New England Home for Little Wanderers, 584 F.2d 1103 (1st Cir. 1978).

On July 23, 1980 a divided panel of this court reversed the district court. It held that "federal habeas corpus jurisdiction may be invoked to challenge the constitutionality of a state statute by which the state has taken custody of children and has terminated without consent the rights of a natural parent to them." Lehman v. Lycoming County Children's Services Agency, No. 79-2466, slip op. at 24, (3d Cir. July 23, 1980), vacated and rehearing en banc granted (August 15, 1980). Thereafter rehearing before the court en banc was ordered.

II.

A habeas corpus action differs from other constitutional challenges in one exceedingly important respect. All other litigational claims, constitutional and non-constitutional, are subject to the doctrine of res judicata. That principle precludes a litigant who has fully and freely pressed a claim or defense in one court from obtaining a second adjudication of that claim or defense.*fn4

Society, and hence, the law has a critical interest in finality, which is the basis for the doctrine of res judicata. In normal litigation, our jurisprudence dictates that this degree of finality has been reached after consideration by a court of original jurisdiction and a court of review. Thus, the doctrine of res judicata bars a cause of action that had earlier been determined in court, even if that determination was substantively in error. Habeas corpus, because it embodies considerations of personal liberty, is the major exception to this doctrine.

The writ of habeas corpus recognizes however, that this interest in finality cannot transcend each and every other societal interest. It represents our society's judgment that avoiding wrongful incarceration and unlawful restrictions on liberty outweighs the otherwise compelling interest in finality of litigation. Because this interest in personal liberty is one of our most highly valued constitutional rights, those who are in "custody" pursuant to a judgment of a court are, in almost all cases,*fn5 permitted to raise their federal claims in federal court, even those claims had once before been adjudicated. As Justice Brennan wrote for the Supreme Court majority in Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).

"conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review."

Id. at 424, 83 S. Ct. at 841.

While the ability to avoid res judicata is an extraordinary characteristic of habeas when the relitigation takes place within the same judicial system that is, when a state court entertains the writ on behalf of a person in custody pursuant to the judgment of a court of that same state the writ assumes even more profound implications when its operation cuts across the federal and state judicial systems. In this latter context, the writ empowers a single federal district judge to overrule determinations of federal issues which have been adjudicated by the highest court of a state. Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 767, 66 L. Ed. 2d 722 (1981). Thus, the assumption of habeas jurisdiction by a federal court on behalf of a party complaining of a judgment rendered against him by a state court, represents an unparalleled assertion of federal authority over the state judicial system. Such an intrusion upon state judicial authority deeply implicates the principles of comity and may impair the smooth workings of our federal system.

The awesome power of the writ to avoid res judicata, and its implications for our federalism, demand that its use be confined to its proper role: the preservation of individual liberty and the relief from unlawful custody. This principle has been expressed by the Supreme Court in Hensley v. Municipal Court, 411 U.S. 345, 93 S. Ct. 1571, 36 L. Ed. 2d 294 (1973):

The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty. Since habeas corpus is an extraordinary remedy whose operation is to a large extent uninhibited by traditional rules of finality and federalism, its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate.

Id. at 351, 93 S. Ct. at 1574. (emphasis added).

Other commentators have expressed similar sentiments:

The historic custody requirement, although rooted in the procedural nature of the writ, took on a substantive character as habeas corpus came to be seen as an extraordinary remedy for the extraordinary restraints of custodial situations. The modern jurisdictional requirement (of custody) reflects this conception. Federal supervision of state judicial processes by means of the writ departs from traditional notions of deference owed state administration of federal law; problems of federalism aside, ordinary concepts of finality in the judicial process are displaced by the continuing availability of habeas for review of restrictions imposed by the judgments of federal courts. Therefore the restraints which have been thought appropriate for review in habeas proceedings are those which impinge with especial harshness on personal liberty those severe enough to warrant relitigation.

Developments in the Law Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1073 (1970) (emphasis added). The need to confine habeas to its proper sphere has become even more important as the scope of constitutional errors within its reach has expanded dramatically. See id. at 1041.

In deciding whether habeas corpus lies to challenge a termination of parental rights, we must determine, then, whether such a case presents the same, strong claim for overriding the interest in finality as inheres in the plea of a prisoner that he has been incarcerated in violation of the Constitution of the United States. We think the answer is clear: it may not, and for much the same reasons as those expressed in Sylvander v. New England Home for Little Wanderers, 584 F.2d 1103 (1st Cir. 1978). The principal reason may be plainly stated: habeas lies to challenge unlawful custody, but unlawful custody is simply not the issue in a parental rights termination case. It is not the liberty interest of the children that is sought to be protected in such a case, but only the right of the particular parent to raise them.*fn6 Such an interest is unrelated to the core concern of the writ of habeas corpus.

A.

The federal habeas corpus statute for state prisoners, 28 U.S.C. § 2254, establishes custody as the prime requisite for relief. The statute provides in relevant part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

(Emphasis added).

While the Supreme Court has held that persons other than incarcerated prisoners may be in custody and hence has extended relief under the writ of habeas corpus to them, see Hensley v. Municipal Court, 411 U.S. 345, 93 S. Ct. 1571, 36 L. Ed. 2d 294 (1973); Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968); Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963), such cases present instances of actual restrictions on the petitioners' individual liberty, all stemming from state criminal conviction.

In Hensley v. Municipal Court, supra, the habeas petitioner had been released on his own recognizance after his state conviction and sentencing, but prior to the commencement of his incarceration. In holding that the petitioner was in custody, the first factor that the Court looked to was that he was "subject to restraints "not shared by the public generally.' " Id. at 351,*fn7 93 S. Ct. at 1574.

Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968) presented the situation of a state prisoner who was unquestionably in custody at the time when the district court and court of appeals considered his petition for a writ of habeas corpus. His petition was denied by the court of appeals and he then sought a writ of certiorari. Just prior to the granting of his petition for certiorari by the Supreme Court, Carafas was discharged from his parole status because his sentence had expired. The Supreme Court held that Carafas's case was not moot, and that Carafas was in custody within the meaning of the habeas corpus statute. The Court, in so holding, stressed that Carafas was subject to "collateral consequences," id. at 237, 88 S. Ct. at 1559, and "is suffering, and will continue to suffer, serious disabilities " Id. at 239, 88 S. Ct. at 1560.

Jones v. Cunningham, supra, involved a petitioner who was on parole after serving part of a state prison term. The Court ruled that he was "in custody" because "the custody and control of the Parole Board involve significant restraints on petitioner's liberty which are in addition to those imposed by the State upon the public generally." Id. at 242, 88 S. Ct. at 1561.

Relating these principles to the Lehman family situation, it is immediately apparent that unlike Hensley, Carafas, and Jones, the three boys here suffer no restraints that can be equated to the restraints which permitted habeas corpus relief in those cases. If indeed a characteristic of habeas custody is that the restraint suffered is "not shared by the public generally," Hensley at 351, 93 S. Ct. at 1574, see also Jones at 242, 83 S. Ct. at 376, we fail to understand how the situation of the three Lehman boys differs from the situation of other children in "the public generally" who are subject to parental or foster parental care and living arrangements. Thus this record discloses no restraint on liberty in terms of Hensley and Jones and no "collateral consequences" in terms of Carafas. Nor are we aware of any other expressions of federal habeas corpus "custody" which would include a child custody situation such as the one presented by Ms. Lehman's petition.

B.

Sylvander v. New England Home for Little Wanderers, supra, is the only case that has analyzed whether the termination of parental rights meant that the children were "in custody" for habeas corpus purposes.*fn8 The facts of Sylvander, are remarkably similar to those of this case. Gail Sylvander relinquished custody of her son, Michael, to the New England Home for Little Wanderers, a state licensed, albeit privately run institution.*fn9 After Mrs. Sylvander rescinded her permission granting the Home the right to put her son up for adoption, that institution petitioned the Massachusetts Probate Court for authority to dispense with the mother's consent to the child's adoption. That court found that it was in the best interests of the child to be placed with prospective adoptive parents. The Supreme Judicial Court of Massachusetts affirmed the order of the probate court and rejected Sylvander's argument that the statute's standards were unconstitutional.

Sylvander did not take an appeal to the United States Supreme Court, nor did she file a petition for certiorari. Instead she filed a petition for habeas corpus in the district court for the District of Massachusetts, joining with it a complaint pursuant to 42 U.S.C. § 1983. The district court dismissed her case, and the First Circuit affirmed.

After concluding that res judicata barred the § 1983 action, the First Circuit then held that there was no custody for habeas corpus purposes. It pointed out that the Supreme Court "had never acknowledged that habeas corpus is an appropriate remedy for litigating federal constitutional claims arising from child custody disputes." Id. at 1110-1111. The First Circuit wrote:

It is of course true that, although the wording of the federal habeas statute is tailored to fit state criminal proceedings, the habeas remedy has been made available in other contexts. What is not clear is that this case presents yet another situation to which that remedy should be extended. Here, the custody that the habeas petition seeks to challenge is a state's assignment of the responsibility for the upbringing of a child to one person or another, in that child's "best interests." Michael is not a detainee or one undergoing some form of state-imposed restraint or disability, but rather is living with persons who have taken interim parental responsibility for him at the request of a private institution after a judicial determination that he may be adopted without parental consent. This is not the kind of custody that has traditionally prompted federal courts to assert their jurisdiction in the face of prior state adjudication. It cannot meaningfully be said that the person in custody Michael is being held against his will. The "rights" Ms. Sylvander now asserts on Michael's behalf are chiefly her own her rights as a mother not to be deprived of her child. Only speculatively are they the rights of the person in "custody." Indeed, several years of state court litigation resulted in the determination that the Home, a charitable institution established to promote the welfare of children, is correct in arguing that Michael's best interests lie in his being adopted. Thus, if this court were to recognize the availability of federal habeas in child custody cases, the proper party to seek the Great Writ on Michael's behalf in this case might as well be the Home as Ms. Sylvander.

Id. at 1111.*fn9a

The court concluded that:

the question is who should bring Michael up. We do not think that Michael's mother may avail herself of federal habeas corpus to litigate her right to do so.

Id. at 1113.

Similarly in this case, the Lehman boys are not "detainee(s)" nor are they "undergoing some form of restraint or disability." Id. at 1111. "It cannot meaningfully be said that the" Lehman boys are "being held against (their) will." Id. at 1111. Just as Ms. Sylvander essentially was asserting her own rights in her child, the rights Ms. Lehman asserts on behalf of her children are chiefly her own her rights as a parent not to be deprived of her children. The "custody" of a foster or adoptive parent over a child is simply not the type of custody that may be challenged through federal habeas.

Ms. Lehman attempts to distinguish the facts of the present case, involving the power of the state to extinguish the rights of a natural mother in her children, from the typical private custody dispute among parents. Yet such a distinction, in terms of the availability of habeas, cannot be sustained.*fn10 In both instances a litigant uses the state's judicial machinery to establish the litigant's right to raise the child and to invalidate some other party's right to do so. Thus, the status of the child is the same whether determined in a "typical dispute between parents" or in a state parental right termination proceeding. If there is "custody" within the meaning of the habeas statute in the one instance, there must necessarily be "custody" in the other, because neither situation can be distinguished from the other in terms of the "extraordinary restraints," 83 Harv.L.Rev. at 1073, that must be present to satisfy the custody requirement. In both instances, the child's status at the completion of the action is the product of a state judicial decree.*fn11

C.

We recognize that outside the context of federal habeas which is extended to persons in custody pursuant to the judgment of a state court, habeas has seen a considerably expanded usage. Ms. Lehman, for instance, refers to the discussion in Jones v. Cunningham, 371 U.S. 236, 239, 83 S. Ct. 373, 375, 9 L. Ed. 2d 285 (1963), and notes that under the English common law, habeas could be employed in custody disputes between warring parents. See R. Sokol, Federal Habeas Corpus § 6.1, at 73 (2d ed. 1969). Many states employ habeas for the same purpose. See discussion in Sylvander, 584 F.2d at 1110. But such cases are plainly inapposite to the question presented here. The use of habeas within a single, unified judicial system, that is, when the writ is extended by a federal court to a person in custody pursuant to the judgment of a federal court, or by a state court to a state prisoner, or by an English court to an English prisoner, does not implicate any concerns of comity. When one judicial system decides to subordinate the interest in finality to some other interest, that is its own prerogative. When the federal courts recognize the federal interest in liberty as superior to the state interest in finality, we face a quite different problem, one which has the most profound implications for comity and federalism. As the First Circuit wrote in Sylvander :

Federal habeas when applied to persons under state control is a procedure of unique potency within federal-state framework, having far different and more far-reaching consequences than a state's utilization of habeas within its own system. State utilization of habeas to test the legal custody of a child is part of the fabric of its reserved jurisdiction over child custody matters. If a habeas remedy were not provided, some other procedure would be needed to effectuate the state's substantive interest in these relationships. It is purely a matter of procedural detail whether the remedy is called "habeas" or something else.

584 F.2d at 1111.

Thus, when we confine our review of the authorities only to those cases in which federal habeas has been extended to individuals in state custody, it is clear that none of the cases relied upon by Ms. Lehman for a broad reading of the term "custody" would find "custody" in the situation presented here, and thus would not authorize the use of the writ in the present case.

D.

Nor do policy considerations favor the availability of federal habeas in cases of this type. The child custody context is one where the interest in finality is especially weighty. It is widely recognized that children require secure, stable, long term and continuous relationships with their parents or the persons filling the role of parent. There is little that can be as detrimental to a child's sound development as prolonged uncertainty over whom he is to regard as his parents. And yet prolonged uncertainty in family relations must be the inevitable outcome of allowing the relitigation in federal court through habeas, of federal constitutional issues that were once fully adjudicated in state court. As the First Circuit wrote in Sylvander, "(i)t is by no means clear that the welfare of children and families would be promoted by creating a right to litigate in two sets of courts instead of one, thus extending the potential duration of litigation in this area." 584 F.2d at 1112.

We must also recognize that the child (whose liberty interests we must presume to be implicated in order to find a basis for the extension of habeas, see note 6 supra ) is little more than a pawn in the battle that engulfs him. Unlike the prisoner, who can control and direct the collateral attacks on his confinement, the child cannot call a halt to custody litigation whenever he sees fit. See Sylvander, 584 F.2d at 1112. The parties fighting over the right to raise the child will continue fighting, as Ms. Lehman has demonstrated, until there is no other forum in which they may do so. Providing another arena for this contest, by extending the federal writ of habeas corpus to custody actions, is hardly likely to serve the best interests of the child. See note 2 supra.

Nothing we have discussed here, however, should be read as a suggestion that the great writ may never be available on behalf of a child. We have indicated earlier that this case does not involve incarceration or restrictions or restraints affecting the Lehman boys' liberty any of which conditions might well be sufficient for habeas to lie. "Were (the Lehman boys) incarcerated in a state home, or were there other issues making this truly a struggle for liberty by one imprisoned under the aegis of the state," id. at 1113 (emphasis added), the writ might well be available. We hold only that parental rights termination suits, and other similar determinations of child custody, do not without more, provide a predicate for the use of federal habeas corpus.

III.

Ms. Lehman argues that she should be afforded habeas corpus review, otherwise a federal court will never hear the merits of her claim. Such an argument assumes that there is an inherent right to a litigant to have a federal court consider his federal claims. No such right exists. See Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980). Moreover, Ms. Lehman had a choice of two routes to a federal determination on the merits of her constitutional challenge and rejected both.

The simplest and most direct route was Ms. Lehman's right to appeal to the United States Supreme Court from the adverse judgment of the Supreme Court of Pennsylvania. By this means, Ms. Lehman could have immediately, and as a matter of right, obtained a decision from our highest court. She chose not to file an appeal, but, rather, simply petitioned for a writ of certiorari. Under 28 U.S.C. § 1257(2) (1976), a party who presents a federal constitutional challenge to a state statute (here, the Pennsylvania Adoption Act), and loses in state court, has the right to appeal to the United States Supreme Court. The Court's appellate jurisdiction, of course, is nondiscretionary: the Court must determine cases falling within this jurisdiction on the merits, even though it need not give such cases plenary consideration. Hicks v. Miranda, 422 U.S. 332, 343-44, 95 S. Ct. 2281, 2288-2289, 45 L. Ed. 2d 223 (1975). Thus, had Ms. Lehman invoked the Court's appellate jurisdiction, instead of petitioning for certiorari, she would have obtained a ruling on the merits of her constitutional challenge. By deciding to forego an appeal and instead petitioning for certiorari, Ms. Lehman sought to avoid the res judicata effect that would attach to a summary affirmance on appeal, but not to a denial of certiorari.

The second route to a federal resolution of the federal constitutional challenge is available by the litigant reserving the federal claims during the state court litigation, and then bringing a subsequent challenge to the state statutory scheme in federal court under 42 U.S.C. § 1983 (1976). Such an approach is possible due to the limited res judicata effect accorded state court judgments in subsequent suits under § 1983, under the rule in this Circuit of New Jersey ...


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