New Orleans Public Service Inc v. Council of City of New Orleans/Concurrence Brennan

by William J. Brennan, Jr.

Justice BRENNAN, with whom Justice MARSHALL joins, concurring.

I join the Court's opinion. I continue to adhere to my view, however, that the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), is in general inapplicable to civil proceedings. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 19, 107 S.Ct. 1519, 1530, 95 L.Ed.2d 1 (1987) (BRENNAN, J., concurring in judgment); Trainor v. Hernandez, 431 U.S. 434, 450, 97 S.Ct. 1911, 1921, 52 L.Ed.2d 486 (1977) (BRENNAN, J., dissenting); Juidice v. Vail, 430 U.S. 327, 341, 97 S.Ct. 1211, 1220, 51 L.Ed.2d 376 (1977) (BRENNAN, J., dissenting); Huffman v. Pursue, Ltd., 420 U.S. 592, 613, 95 S.Ct. 1200, 1212, 43 L.Ed.2d 482 (1975) (BRENNAN, J., dissenting).

Chief Justice REHNQUIST, concurring in Parts I and II-B and concurring in the judgment.

I agree with the Court that our prior cases extending Younger beyond criminal prosecutions to civil proceedings have limited its application to proceedings which are "judicial in nature," and that, under our longstanding characterization of the distinction between "judicial" and "legislative" proceedings, see Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908), the Council's ratemaking proceedings at issue here were not judicial in nature. Under these circumstances, I agree that Younger abstention is inappropriate, despite the pendency of state-court review of the Council's ratemaking order. Nothing in the Court's opinion curtails our prior application of Younger to certain administrative proceedings which are "judicial in nature," see Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986); Middlesex County Ethics Committee v. Garden State Bar Assn., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); nor does it alter our prior case law indicating that such proceedings should be regarded as "ongoing" for the purposes of Younger abstention until state appellate review is completed, see Dayton Christian Schools, supra, 477 U.S., at 629, 106 S.Ct., at 2723-2724. With this understanding, I join the portion of the Court's opinion holding that Younger abstention is inappropriate here.

I agree with the Court's conclusion that Burford abstention is inappropriate on the facts of this case. But I would not foreclose the possibility of Burford abstention in a case like this had the State consolidated review of the orders of local ratemaking bodies in a specialized state court with power to hear a federal pre-emption claim. Accordingly, I concur only in the judgment as to Burford abstention.

Notes