Phila. City Council v. Mark S. Schweiker, Hon. Governor

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2139
_________________
PHILA. CITY COUNCIL; ANNA C. VERNA, PRESIDENT OF CITY COUNCIL;
DAVID COHEN, CHAIR, LAW AND GOVERNMENT COMMITTEE OF CITY
COUNCIL; FRANK DICICCO, COUNCILMAN; JANNIE L. BLACKWELL,
COUNCILWOMAN; MICHAEL A. NUTTER, COUNCILMAN; JOAN L.
KRAJEWSKI, COUNCILWOMAN; DONNA REED MILLER, COUNCILWOMAN;
MARIAN B. TASCO, COUNCILWOMAN; W. WILSON GOODE, JR., COUNCILMAN;
JAMES F. KENNEY, COUNCILMAN; ANGEL L. ORTIZ, COUNCILMAN;
BLONDELL REYNOLDS BROWN, COUNCILWOMAN; SHIRLEY M. KITCHEN,
STATE SENATOR; W. CURTIS THOMAS, STATE REPRESENTATIVE;
HAROLD JAMES, STATE REPRESENTATIVE; JAMES R. ROEBUCK, STATE
REPRESENTATIVE; JOHN TIMOTHY KEARNEY; HANNAH LOUISE KEARNEY,
A MINOR; DINA LYNN SCHLOSSBERG; WENDELL HARRIS; ROSE LENTZ;
DELORES SHAW; PATRICIA RAYMOND; DEBORAH TONEY; PARENTS
UNITED FOR BETTER SCHOOLS; PARENTS UNION FOR PUBLIC SCHOOLS;
PHILADELPHIA STUDENT UNION; PHILADELPHIA BRANCH NAACP;
JEROME W. MONDESIRE, PRESIDENT OF THE PHILADELPHIA BRANCH NAACP;
NATIONAL CONGRESS FOR PUERTO RICAN RIGHTS - PHILADELPHIA CHAPTER;
RAY ALVAREZ, PRESIDENT, NATIONAL CONGRESS FOR PUERTO RICAN RIGHTS -
PHILADELPHIA CHAPTER; INSTITUTE FOR THE STUDY OF CIVIC VALUES;
NATIONAL ORGANIZATION FOR WOMEN - PHILADELPHIA CHAPTER,
Appellants
v.
MARK S. SCHWEIKER, HON. GOVERNOR; CHARLES R. ZOGBY, SECRETARY OF
EDUCATION; THE SCHOOL REFORM COMMISSION; JAMES E. NEVELS; CHAIRMAN;
JAMES GALLAGHER; SANDRA GLENN; MICHAEL MASCH;
DANIEL WHELAN, MEMBERS, SCHOOL REFORM COMMISSION
_______________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 02-cv-00998)
District Judge: Honorable Ronald L. Buckwalter

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_________________________________________
Argued: July 11, 2002
Before: BECKER, Chief Judge, McKEE, and GREENBERG,
Circuit Judges.
(Filed July 17, 2002 )
ALICE W. BALLARD, ESQUIRE (ARGUED)
FRANK FINCH, III, ESQUIRE
BALLARD & FINCH
225 South 15th Street, Suite 1700
Philadelphia, PA 19102
STANLEY J. SHAPIRO, ESQUIRE
City of Philadelphia
Technical Services Unit
Room 564 - City Hall
Philadelphia, PA 19107
BRUCE M. LUDWIG, ESQUIRE
GEORGE J. BADEY, III, ESQUIRE
DAVID J. BERNEY, ESQUIRE
Sheller, Ludwig & Badey
1528 Walnut Street, 3rd Floor
Philadelphia, PA 19102
JOSEPH C. KOHN, ESQUIRE
ROBERT J. LaROCCA, ESQUIRE
JOANNE ZACK, ESQUIRE
CRAIG W. HILLWIG, ESQUIRE
Kohn, Swift & Gaft, P.C.
One South Broad Street, Suite 2100
Philadelphia, PA 19107
Counsel for Appellants
D. MICHAEL FISHER, ESQUIRE

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Attorney General
DANIEL J. DOYLE, ESQUIRE
Senior Deputy Attorney General
SUSAN J. FORNEY, ESQUIRE
Chief Deputy Attorney General
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120
EDWARD F. MANNINO, ESQUIRE (ARGUED)
JASON A. SNYDERMAN, ESQUIRE
Akin, Gump. Strauss, Hauer & Feld, LLP
One Commerce Square
2005 Market Street, Suite 2200
Philadelphia, PA 19103
Counsel for Appellees Honorable Mark Schweiker and Charles Zogby
CARL E. SINGLEY, ESQUIRE (ARGUED)
MICHAEL J. HANLON, ESQUIRE
SCOTT F. COOPER, ESQUIRE
Blank, Rome, Comisky & McCauley, LLP
One Logan Square
Philadelphia, PA 19103-6998
Counsel for Appellees The School Reform Commission and Its
Individual Members, James Nevels, James Gallagher, Sandra Glenn,
Michael Masch and Daniel Whelan
DEBORAH R. WILLIG, ESQUIRE
RALPH J. TETI, ESQUIRE
ERIC M. FINK, ESQUIRE
Willig, Williams & Davidson
1845 Walnut Street, 24th Floor
Philadelphia, PA 19103
Counsel for Amici Curiae Committee to Keep Our
Public Schools Public, The Philadelphia Federation of
Teachers, National Conference of Firemen and Oilers
School Employees Union, Local 1201, SEIU, AFL-CIO, and
School Cafeteria Employees Union, Local 634 HERE, AFL-CIO

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__________________________
OPINION OF THE COURT
___________________________
BECKER, Chief Judge.
This appeal arises out of a lawsuit brought in the District Court for the Eastern
District of Pennsylvania by the Philadelphia City Council; a majority of its members;
several state legislators; children and parents of children enrolled in the Philadelphia
School; and several advocacy groups interested in the Philadelphia Public Schools. Named
as defendants are Pennsylvania’s Governor, its Secretary of Education, and the members of
the School Reform Commission (“SRC”) created pursuant to Acts 46 and 83 of the
Pennsylvania General Assembly, see Act of Apr. 27, 1998, P.L. 270, No. 46 §§ 2-3; Act of
Oct. 30, 2001, P.L. 828, No. 83 § 1 (codified as amended at 24 P.S. §§ 6-691-6-696).
Acts 46 and 83 authorize the SRC to take over the operations of the School District of
Philadelphia if and when a Declaration of Distress is made by the Secretary. The suit
challenges the creation and powers of the SRC and the procedures by which the recent
“takeover” of the Philadelphia school system was effected, on a number of state law,
federal law, state constitutional, and federal constitutional grounds.
This opinion addresses the plaintiffs’ appeal from orders entered by the District
Court granting the defendants’ motion to abstain essentially on the basis of the doctrine of
“Pullman abstention” (which takes its name from the seminal Supreme Court case
Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941)), staying the federal

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proceedings pending litigation in state court, and dismissing plaintiffs’ motion to
reconsider. The plaintiffs also contend that the District Court erred in failing to consider
their motions for a temporary restraining order and a preliminary injunction. Although the
factual and procedural history of the case is extensive, it need not be chronicled here, for it
is well known to the parties (and indeed to the general public, for the facts underlying this
lawsuit and the progress of the suit itself and of related suits have been widely publicized).
Moreover, as was agreed by the parties at the conclusion of oral argument, the public
interest will be better served by a prompt disposition of this appeal than by a lengthy
opinion which will perforce take a long time to draft. Accordingly, we limit our discussion
to background materials and a statement of our ratio decidendi.
I.
At the threshold, the defendants challenge our appellate jurisdiction (advanced by
the plaintiffs under 28 U.S.C. § 1291) on the grounds that the principal order appealed
from, which grants a stay, is not a final order. We disagree. Under our jurisprudence an
abstention-based stay order can be a final order under § 1291 even when the District Court
retains jurisdiction. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712-13 (1996);
see also Hovsons, Inc. v. Sec’y of Interior, 711 F.2d 1208, 1211 (3d Cir. 1983) (holding
that Pullman-abstention stays are appealable final orders). As explained in 17A Wright,
Miller & Cooper, Federal Practice & Procedure § 4243, at 68 (2d ed. 1988):
Since the federal court is to retain jurisdiction, its abstention order does not
look like a final judgment. Nevertheless the consequences of abstention to
the litigants are often so great that the appellate courts have provided

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1 Plaintiffs also assert a procedural grievance. They submit that the District Court failed
to address their motions for a preliminary injunction (“PI”) and a Temporary Restraining
Order. The plaintiffs filed their motion for a PI on March 4. At a March 11 conference,
the PI hearing was scheduled for April 1. The plaintiffs contend that the District Court
rushed them to respond to the defendants’ abstention motion (permitting only 48 hours)
and then abruptly entered its abstention order on March 27, and canceled the April 1 PI
hearing. The plaintiffs then moved to reconsider, but the Court declined to do so. The
plaintiffs now ask us to remand to the District Court and direct that it rule on the PI
motions it never considered. However, the District Court did rule on a subsequent
plaintiffs’ motion by plaintiffs for a PI by Order of May 1, 2002, and so the plaintiffs’
contention is without merit. While the appeal from the denial of a preliminary injunction is
properly before us under 28 U.S.C. § 1292(a), the denial is presumably abstention-based,
and hence we treat it in conjunction with our discussion of the appeal from the stay order.
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immediate review . . . .
See also 19 James Wm. Moore et al., Moore’s Federal Practice § 202.11[6], at 202-56
(Matthew Bender 3d ed.) (“Generally, an order granting abstention is appealable when its
purpose and effect is to surrender jurisdiction to a state court.”). Because the District
Court’s decision essentially left the matter up to the Pennsylvania Supreme Court, we treat
it as a final order that is appealable.1
II.
We turn to the abstention issue. The defendants ask that we treat the District
Court’s ruling as a combination of abstention under Pullman, supra, and Burford v. Sun
Oil Co., 319 U.S. 315 (1943), urging that although a court’s decision to abstain is usually
classified by reference to one of the discrete categories of abstention doctrine, the
Supreme Court has noted that “[t]he various types of abstention are not rigid pigeonholes
into which federal courts must try to fit cases. Rather, they reflect a complex of

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considerations designed to soften the tensions inherent in a system that contemplates
parallel judicial processes.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 n.9 (1987).
Because we are satisfied that the District Court’s abstention was proper under Pullman, we
need not decide whether the District Court’s order was also justified under the doctrine of
Burford abstention, or some amalgam of the two doctrines.
One of the main purposes of Pullman abstention is “to avoid deciding a federal
constitutional question when the question may be disposed on questions of state law.”
Chiropractic Am. v. Lavecchia, 180 F.3d 99, 103 (3d Cir. 1999). In other words, Pullman
abstention “is appropriate where an unconstrued state statute is susceptible of a
construction by the state judiciary which might avoid in whole or in part the necessity for
federal constitutional adjudication, or at least materially change the nature of the problem.”
Bellotti v. Baird, 428 U.S. 132, 147 (1976) (internal quotations and citation omitted). We
have identified the rationale for Pullman abstention as “twofold: (1) to avoid a premature
constitutional adjudication which could ultimately be displaced by a state court adjudication
of state law; and (2) to avoid ‘needless friction with state policies.’” Planned Parenthood
of Central N.J. v. Farmer, 220 F.3d 127, 149 (3d Cir. 2000) (quoting Pullman, 312 U.S. at
500).
The first step in the Pullman analysis is determining whether three “special
circumstances” exist:
(1) There are uncertain issues of state law underlying the federal
constitutional claims brought in federal court;
(2) The state law issues are amenable to a state court interpretation that

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would obviate the need for, or substantially narrow, the scope of adjudication
of the constitutional claims; and
(3) A federal court’s erroneous construction of state law would be disruptive
of important state policies.
Chez Sez III Corp. v. Township of Union, 945 F.2d 628, 631 (3d Cir. 1991). If all three of
these circumstances are present, the district court must then exercise its discretion as to
whether abstention is appropriate “by weighing such factors as the availability of an
adequate state remedy, the length of time the litigation has been pending, and the impact of
delay on the litigants.” Planned Parenthood, 220 F.3d at 150 (quoting Artway v. Attorney
Gen. of N.J., 81 F.3d 1235, 1270 (3d Cir. 1996)). We refer to these considerations, infra,
as the “discretionary factors.”
In reviewing a district court’s decision to abstain under Pullman, we apply a multi-
pronged standard of review. See Chez Sez, 945 F.2d at 631. The district court’s
determinations as to the first two special circumstances – whether state law is uncertain
and whether the law is susceptible to a construction that would obviate or narrow the
constitutional issue presented – are essentially legal decisions that we review de novo. Id.
The district court’s appraisal of the third circumstance – whether an erroneous decision of
state law by the federal court would disrupt important state policies – “is more
discretionary in nature and thus, if it is adequately explained, will be accorded greater
deference by the appellate court.” Id.; see also Artway, 81 F.3d at 1271 n.35. Finally, if
we agree that the district court was correct on the three special circumstances, “the
remaining question is whether the trial judge abused his discretion in” considering the

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2 1. What power does the General Assembly of Pennsylvania have to override
or preempt statutory provisions which deal with matters of local concern?
2. Do Acts 46 and 83 which pertain only to cities of the first class
(Philadelphia) violate the Pennsylvania constitutional provision to be free
from special legislation?
3. Does contracting out the operation of the Philadelphia public schools to
for-profit agencies undermine the right and nature of “public” education as
that term is defined by Pennsylvania law?
4. Does Act 83 give the SRC the power to suspend existing Pennsylvania
statutory rights?
5. What is the criteria under Act 46 for determining distress under the
provision “has failed or will fail to provide for an educational program in
compliance with the provisions of this act, regulations of the State Board of
Education or standards of the Secretary of Education?”
6. To what extent do Acts 46 and 83 appropriate taxing authority to the
school district and does this undermine the taxing authority vested in City
Council as set forth in the Home Rule Charter?
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aforementioned discretionary factors. Chez Sez, 945 F.2d at 631 (citation omitted).
III.
A.
We are satisfied that the requirements for Pullman abstention have been met. The
first Pullman prong turns on the existence of unclear issues of state law. Plaintiffs’
complaint is suffused with alleged violations of state law. Plaintiffs contend that all of the
violations are clear, but we disagree. The District Court’s opinion lists as unclear a number
of issues of state law, which we rescribe in the margin.2 We agree with its characterization
of a sufficient number of them to meet the first Pullman prong.
Turning to the second prong, the plaintiffs contend that the District Court never
identified the supposed limiting construction of Acts 46 and 83 that would avoid the

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3 Indeed, it would seem untoward to force the abstaining court to identify precisely what
this limiting construction must be. The very point of abstaining is to give the state courts
the first opportunity to construe the statute. It seems problematic for an abstaining federal
court to hint at what it thinks is the appropriate limiting construction: this hint could be
interpreted by the state court as indicating that this identified construction is the only
constitutionally permissible construction of the statute. This could hardly be said to
advance one of the underlying policies of abstention – the avoidance of “needless friction”
with state courts. Pullman, 312 U.S. at 500.
10
plaintiffs’ constitutional challenge. But there is no legal requirement that the District
Court make such a construction.3 What suffices here is the District Court’s identification
of the possibility that a limiting construction could obviate the need for federal
constitutional inquiry, which we find sufficient. We focus particularly on the question of
the proper scope of the Secretary’s “distress” determination, which lies at the core of
plaintiffs’ due process/vagueness challenge. This seems especially appropriate for a state
court construction, and the state court’s interpretation of this provision could markedly
limit the scope of any federal constitutional issues.
We note in this regard that plaintiffs appear to assume that Pullman abstention is
appropriate only if interpretation of the state law issues could save the statute from
constitutional attack. However, while a potential saving construction is one basis for
abstention, it is not the only one. Rather, abstention is appropriate when resolution of the
state law issues would obviate the need for constitutional inquiry altogether, such as where
a state court invalidates the challenged law on state law or constitutional grounds. See
Pullman, 312 U.S. at 501 (“If there was no warrant in state law for the Commission's
assumption of authority there is an end of the litigation; the constitutional issue does not

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arise.”); Erwin Chemerinsky, Federal Jurisdiction § 12.2, at 690 (2d ed. 1994) (noting that
one of the purposes behind Pullman abstention is “avoiding unnecessary constitutional
rulings”; “[i]f the state court invalidates the state law, then there is no need for the federal
court to reach the constitutional question”). In this sense the plaintiffs are hoist on their
own petard. Throughout their complaint they allege that Acts 46 and 83 violate numerous
state law and constitutional provisions. If this is indeed so, then the acts are illegal under
state law or unconstitutional under the state constitution, and a federal court would not need
to decide whether they violate the federal Constitution.
The plaintiffs also submit that “abstention is not required for interpretation of
parallel state constitutional provisions.” Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 237
n.4 (1984). However, the plaintiffs have not attacked Acts 46 and 83 solely on the basis of
“parallel state constitutional provisions.” Rather, they have attacked the acts as violations
of state law and state constitutional provisions that have no parallel in the federal
Constitution. See, e.g., Article IX, §2 (“[A]mendment or repeal of a home rule charter shall
be by referendum.”), and Article III, § 32 (prohibition on “special” legislation). This case
thus differs from Midkiff, where the parties attacked the state’s action on a provision of the
Hawaii Constitution that contained “only a parallel requirement that a taking be for a public
use.” 467 U.S. at 237 n.4.
Finally, we are satisfied that an erroneous construction of state law in this case
would have the potential to disrupt important state policies, thereby fulfilling the third
Pullman prong. It is well-known that education is a state policy of paramount importance.

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See Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (noting that “education is perhaps the
most important function of state and local governments”). Should a federal court
misinterpret any of the numerous state legal and constitutional provisions relied on by the
plaintiffs, the course of Pennsylvania educational policy, particularly as directed toward the
Philadelphia public schools, could be radically altered.
The plaintiffs contend that the third prong of Pullman is not fulfilled because Acts
46 and 83 reflect no important public “policy,” but rather only “politics.” We disagree, for
in a representative democracy, “politics” and “policy,” to the extent a distinction between
the two concepts exists at all, are always intertwined. The fact that “political”
considerations played a substantial role in the state’s “policy” decisions does not make
those policies – however wisely or unwisely adopted – any less “important” for the
purposes of Pullman analysis.
B.
The Pullman discretionary factors may be dealt with summarily. Under a
deferential standard of review, we can find no fault with the District Court’s rejection of
plaintiffs’ contention that abstention is inappropriate because the present case “involves the
infringement and burdening of rights to vote and to participate in the political process,”
“fundamental rights [which] are virtually never appropriate for abstention.” Br. of
Appellants at 32. While a federal court ought to take into account the nature of the federal
interest asserted in deciding whether to abstain, see, e.g., Siegel v. LePore, 234 F.3d 1163,
1174 (11th Cir. 2000) (en banc), this is simply one factor that ought to be considered, not a

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4 As the comments in the text suggest, the panel is skeptical of the plaintiffs’ state and
federal claims in part because of the constraints on the judiciary’s ability to interfere with
essentially political judgments of state legislative and executive bodies, and the narrow
(rational basis) standard of review of the plaintiffs’ putative federal constitutional claims.
That said, on the record before us in this appeal from an abstention order we cannot say that
the claims pressed by the impressive array of counsel for plaintiffs are so lacking in merit
that the first Pullman prong, see supra Section III.A, is not met and hence that the District
Court should not have abstained but rather reached the merits. More precisely, despite our
skepticism, we do not consider the plaintiffs’ state law claims so clearly lacking in merit
that they fail to satisfy Pullman’s requirement that the issues of state law presented by the
case be “uncertain.”
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factor that automatically makes abstention inappropriate. At all events, the plaintiffs’ case
is not a straightforward voting rights case. Rather, as the SRC points out, even before Acts
46 and 83, the members of the Board of Education were appointed, not elected. And, from
1911 to 1965, members of the Philadelphia Board of Education were appointed by the
Judges of the Courts of Common Pleas. Thus the source of the plaintiffs’ putative voting
right is at best highly elusive, if existent at all. We also note in this regard that the structure
and governance of the Philadelphia School Board has always been the province of the
Pennsylvania General Assembly. The right asserted here is a more vague “right to
participate in the political process,” a right for which the plaintiffs have identified no firm
rooting in constitutional jurisprudence.4
Nor can we fault the District Court’s evaluation of the discretionary factors. The
key factor is the existence of an available state forum, but we are unpersuaded that the
Pennsylvania Supreme Court’s summary rejection of two cases dealing with these issues
brought by other parties, notwithstanding its direct statutory jurisdiction authorizing bypass

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5 We add that in determining whether timely and adequate state court review is available,
our cases have focused on whether the state courts have jurisdiction over the plaintiffs’
claims, not on whether the state court was likely to decide the merits of their case. See
Riley v. Simmons, 45 F.3d 764, 773 (3d Cir. 1995); Univ. of Md.-Balt. v. Peat Marwick
Main & Co., 923 F.2d 265, 274-75 (3d Cir. 1991). Here, the Pennsylvania Supreme Court,
by virtue of Section 27 of Act 46, see 24 P.S. §§ 6-691 & 6-696 (Historical and Statutory
Notes) (West Supp. 2002), has original jurisdiction over any action “concerning the
constitutionality of” Acts 46 and 83. This is not a case, therefore, in which timely and
adequate state court review is unavailable due to jurisdictional constraints.
14
of the trial level, see Section 27 of Act 46, 24 P.S. §§ 6-691 & 6-696 (Historical and
Statutory Notes) (West Supp. 2002), means that the Pennsylvania high court will reject the
suit brought by the “marquis” parties, who are before us and who also have pressed a
number of additional issues. There appear to be no standing-type issues here, as there
apparently were in the cases the Pennsylvania Supreme Court declined to hear. In sum, we
believe that there is an available state forum.5
The Orders of the District Court will be affirmed.

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_________________________
TO THE CLERK:
Please file the foregoing Opinion.
BY THE COURT:
/s/Edward R. Becker
__________________________
Chief Judge

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