Appellee justices of the peace and constables, threatened with
removal before their elected terms expired, brought this action in
federal court, challenging on due process and equal protection
grounds the constitutionality of a Texas statute providing,
inter alia, that, when the boundaries of certain precincts
are changed and more than the allotted number of justices of the
peace or constables reside within the changed district, the offices
shall become vacant and shall be filled as are other vacancies.
Under Texas constitutional provisions, (a) a justice of the peace
or constable "shall hold his office for four years and until his
successor shall be elected and qualified," and (b) such officers
may be removed by state district court judges for various causes
after notice and jury trial. A three-judge Federal District Court
held that the statute violated equal protection by removing some
county officers but not others, and ordered appellee officials'
reinstatement.
Held: In view of the unsettled state of Texas law as to
whether the state constitutional provisions ensure justices of the
peace and constables tenure until their elected terms expire even
when the challenged statute would require their ouster, the
District Court should have abstained from deciding the federal
constitutional issue, it being far from certain under various Texas
precedents that appellee officeholders must lose their jobs or that
the reinstatement relief ordered by the District Court is
available. Pp.
420 U. S.
82-89.
378 F. Supp. 100, reversed and remanded.
MARSHALL, J., wrote the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, WHITE BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. DOUGLAS, J., filed a dissenting opinion,
post, p.
420 U. S.
89.
Page 420 U. S. 78
Opinion of the Court by MR. JUSTICE MARSHALL, announced by MR.
CHIEF JUSTICE BURGER.
The appellees brought this action to challenge a plan
redistricting the justice of the peace precincts in Harris County,
Tex. Because the plan provided for consolidation of several
precincts, three justices of the peace and two constables lost
their jobs. These five officials, along with two voters from the
defunct precincts, sought to enjoin implementation of the
redistricting plan on the ground that the Texas statute providing
for their removal from office at the time of redistricting denied
them the equal protection of the laws. The three-judge District
Court granted relief, declaring the statute unconstitutional and
enjoining the redistricting. The order of the District Court was
stayed by MR. JUSTICE POWELL. We denied a motion to vacate the
stay, 415 U.S. 905 (1974), and subsequently noted probable
jurisdiction, 417 U.S. 928 (1974). We reverse and remand to the
District Court with instructions to dismiss the complaint without
prejudice.
I
Under Texas law, the Commissioners Court is the general
governing body of each county; one of its duties is to divide the
county into precincts for the election of justices of the peace and
constables, and to redistrict the precincts when necessary.
Tex.Rev.Civ.Stat.Ann., Art. 2351(1) (1971).
In June, 1973, the Commissioners Court of Harris County adopted
a redistricting plan for the eight justice
Page 420 U. S. 79
of the peace precincts in the county. The last redistricting had
taken place in 1876, and the enormous population changes in the
Houston area had resulted in gross disparities in population among
the precincts: the largest precinct contained approximately one
million persons, while the smallest had fewer than 7,000.
Under the old plan, one justice of the peace and one constable
were assigned to each precinct except the largest, which was
allotted two justices and one constable. Because of the apparent
discrepancy in the workload of the officials in different
precincts, the Commissioners Court adopted a redistricting plan
that redrew the precinct lines. Although the proposed new precincts
still varied substantially in population size, the disparity was
much less than it had been.
Among other changes, the plan consolidated three of the smallest
precincts and parts of two others into a single new precinct. As a
result, four justices and three constables found themselves
residents of a single precinct, which was entitled by law to a
maximum of only one constable and two justices of the peace.
Pursuant to a Texas statute, Tex.Rev.Civ.Stat.Ann., Art 2351 1/2(c)
(1971), the Commissioners Court declared the constable and justice
posts for that precinct to be vacant, since there were more
officials living in the precinct than positions available.
[
Footnote 1] The Commissioners
Court then filled the
Page 420 U. S. 80
vacancies, Tex.Rev.Civ.Stat.Ann., Art. 2355 (1971), appointing
one of the displaced constables to the new constable post and one
of the displaced justices to one of the two new justice positions.
A nonincumbent was appointed to fill the other slot.
The five officeholders, threatened with removal prior to the
expiration of their elected terms, resorted to court action in an
effort to block implementation of the redistricting plan. One of
the constables filed suit in state court, but, when that court
denied his application for a temporary injunction, he apparently
abandoned the action. Shortly thereafter, the three displaced
justices and two constables, along with two voters who had lived in
their precincts, brought suit in the United States District Court
for the Southern District of Texas, claiming that the redistricting
scheme was unconstitutional. Their removal pursuant to Art. 2351
1/2(c) violated the Due Process and Equal Protection Clauses of the
Fourteenth Amendment, the officials contended. More specifically,
they argued that the redistricting order was
Page 420 U. S. 81
constitutionally invalid because it did not meet "one man, one
vote" standards, because it denied voters in certain precincts the
full effect of their votes, and because the precincts were redrawn
along racial lines. Although the appellees did not expressly raise
a state law claim in their complaint, [
Footnote 2] they argued in their pretrial brief that Art.
2351 1/2(c) was invalid under the State Constitution as well,
relying on several state court cases and two opinions of the Texas
Attorney General. In response, the appellants requested that the
complaint be dismissed because the suit raised no substantial
federal questions and because the appellees had failed to exhaust
their state remedies before bringing suit in federal court.
[
Footnote 3]
A three-judge court was convened. It heard argument and issued
an order later the same day. In its order, the court asserted
jurisdiction and enjoined implementation of the redistricting plan
on the ground that the Texas statute providing for the removal of
the plaintiff justices and constables was unconstitutional on its
face. A week later, the court filed a brief opinion in which it
wrote that, insofar as the statute shortens the term of an elected
public official merely because redistricting places him in a
district with others, "it invidiously and irrationally
discriminates between him and others not so affected." In addition,
the court held that the statute, as applied, had discriminated
between those who voted for or were entitled to vote for the
displaced officials and the voters in other precincts where the
Page 420 U. S. 82
elected officials were permitted to serve a full term. Because
it found no compelling interest served by redistricting in the
middle of plaintiffs' terms, [
Footnote 4] the court held that, to the extent that the
redistricting order appointed other persons to plaintiffs' offices
and prevented plaintiffs from carrying out their duties and
receiving their salaries for the remainder of their elected terms,
the order was invalid. [
Footnote
5]
II
The appellants urge us to reverse the District Court on the
merits or, in the alternative, to order the court to abstain
pending determination of the state law questions that pervade this
case. [
Footnote 6] Because we
agree with appellants that the District Court should have
abstained, we
Page 420 U. S. 83
reverse without reaching the merits of the equal protection
claim sustained by the District Court.
In
Railroad Comm'n v. Pullman Co., 312 U.
S. 496 (1941), the Court held that, when a federal
constitutional claim is premised on an unsettled question of state
law, the federal court should stay its hand in order to provide the
state courts an opportunity to settle the underlying state law
question, and thus avoid the possibility of unnecessarily deciding
a constitutional question. Since that decision, we have invoked the
"
Pullman doctrine" on numerous occasions.
E.g., Lake
Carriers' Assn. v. MacMullan, 406 U.
S. 498 (1972);
Askew v. Hargrave, 401 U.
S. 476 (1971);
Reetz v. Bozanich, 397 U. S.
82 (1970);
Harrison v. NAACP, 360 U.
S. 167 (1959);
Spector Motor Service, Inc. v.
McLaughlin, 323 U. S. 101
(1944);
see Field, Abstention in Constitutional Cases: The
Scope of the
Pullman Abstention Doctrine, 122 U.Pa.L.Rev.
1071, 1084-1101 (1974). We have repeatedly warned, however, that,
because of the delays inherent in the abstention process and the
danger that valuable federal rights might be lost in the absence of
expeditious adjudication in the federal court, abstention must be
invoked only in "special circumstances,"
see Zwickler v.
Koota, 389 U. S. 241,
389 U. S. 248
(1967), and only upon careful consideration of the facts of each
case.
Baggett v. Bullitt, 377 U.
S. 360,
377 U. S.
375-379 (1964);
Railroad Comm'n v. Pullman Co.,
supra, at
312 U. S.
500
Where there is an action pending in state court that will likely
resolve the state law questions underlying the federal claim, we
have regularly ordered abstention.
See Askew v. Hargrave,
supra; Albertson v. Millard, 345 U. S. 242
(1953);
Chicago v. Fieldcrest Dairies, Inc., 316 U.
S. 168,
316 U. S. 173
(1942);
cf. Meredith v. Winter Haven, 320 U.
S. 228,
320 U. S. 236
(1943). [
Footnote 7] Similarly,
when the state
Page 420 U. S. 84
law questions have concerned matters peculiarly within the
province of the local courts,
see Reetz v. Bozanich, supra;
Fornaris v. Ridge Tool Co., 400 U. S. 41
(1970);
cf. Louisiana Power & Light Co. v. City of
Thibodaux, 360 U. S. 25
(1959), we have inclined toward abstention. On the other hand,
where the litigation has already been long delayed,
see
Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.
S. 324,
377 U. S. 329
(1964), or where it has seemed unlikely that resolution of the
state law question would significantly affect the federal claim,
see Chicago v. Atchison, T. & S. F. R. Co.,
357 U. S. 77,
357 U. S. 84
(1958);
Public Utilities Comm'n v. United Fuel Gas Co.,
317 U. S. 456,
317 U. S. 462
463 (1943), the Court has held that abstention should not be
required.
Among the cases that call most insistently for abstention are
those in which the federal constitutional challenge turns on a
state statute the meaning of which is unclear under state law. If
the state courts would be likely to construe the statute in a
fashion that would avoid the need for a federal constitutional
ruling or otherwise significantly modify the federal claim, the
argument for abstention is strong.
See Kusper v. Pontikes,
414 U. S. 51
(1973);
Lake Carriers' Assn. v. MacMullan, supra; Harman v.
Forssenius, 380 U. S. 528
(1965);
Harrison v. NAACP, supra. The same considerations
apply where, as in this case, the uncertain status of local law
stems from the unsettled relationship between the state
constitution and a statute. [
Footnote 8] Here, resolution of the
Page 420 U. S. 85
question whether the Texas Constitution permits the County
Commissioners Court to replace constables and justices of the peace
when several live in the same precinct will define the scope of Art
2351 1/2(c) and, as a consequence, the nature and continued
vitality of the federal constitutional claim. As we wrote in
Reetz v. Bozanich, 397 U.S. at
397 U. S. 87,
"the nub of the whole controversy may be the state
constitution."
The appellees insist that abstention would be improper in this
case because a Texas court construction of Art. 2351 1/2(c) would
not modify or avoid the equal protection question passed on by the
District Court. Having analyzed the relevant Texas statutes,
constitutional provisions, and precedents, however, we are unable
to share their conviction.
The Texas Constitution provides that a justice of the peace or
constable "shall hold his office for four years and until his
successor shall be elected and qualified." Art. 5, § 18. Justices
of the peace and constables may be removed by state district court
judges for various causes, after notice and a trial by jury. Art.
5, § 24. What is unsettled is whether these two provisions ensure
justices and constables tenure until the completion of their
elected terms even when mid-term redistricting places them outside
their original precinct or puts them into a precinct that has more
than its full complement of officeholders.
Page 420 U. S. 86
In two early cases, the Texas courts held that the State
Constitution provides no guarantee of tenure for justices and
constables when the County Commissioners Court elects to exercise
its redistricting authority.
State ex rel. Dowlen v.
Rigsby, 17 Tex.Civ.App. 171, 43 S.W. 271,
holding
approved, 91 Tex. 351, 43 S.W. 1101 (1897);
Ward v.
Bond, 10 S.W.2d 590 (Tex.Ct.Civ.App. 1928). The State Supreme
Court later appeared to reverse this stand in approving a lower
court decision that the State Constitution guaranteed to county
commissioners the right to serve until the expiration of their
terms, even if redistricting resulted in their living outside their
precincts.
Childress County v. Sachse, 310 S.W.2d 414
(Tex.Ct.Civ.App.),
holding approved, 158 Tex. 371, 312
S.W.2d 380 (1958). In an opinion filed shortly before the District
Court hearing in this case, the Texas Attorney General applied the
reasoning of the
Sachse case and ruled that, to the extent
that Art. 2351 1/2(c) vacated the office of a justice of the peace
who no longer lived within his precinct, the statute was invalid.
[
Footnote 9] The Attorney
General concluded that the State Constitution entitles justices and
constables to serve their full terms unless they are removed
pursuant to Art. 5, § 24. Op.Atty.Gen. H-220 (1974). The reasoning
of the Attorney General's opinion would appear to extend to
this
Page 420 U. S. 87
case. [
Footnote 10]
Although appellants contend that the Attorney General has
misconstrued the Texas precedents, it seems far from settled that,
under state law, the appellee officeholders must lose their jobs.
[
Footnote 11]
These difficult state law questions intrude in yet another way
that strengthens the case for abstention. The proper scope of the
order entered by the District Court and the applicability of that
order to the plaintiffs' claims depend directly on questions of
state law. The court's initial order held Art. 2351 1/2(c)
unconstitutional, and enjoined the redistricting plan altogether.
In its opinion, the court apparently intended to narrow its order
somewhat by holding the statute unconstitutional as applied and by
enjoining the redistricting order only to the extent that it
removed the appellees from their jobs. Yet even that relief was
broader than the court's holding would support. Absent Art. 2351
1/2(c), Texas law may well dictate that, upon redistricting, all
the justice and constable positions in the county would be vacated.
[
Footnote 12]
Page 420 U. S. 88
Since the District Court concluded only that Art. 2351 1/2(c)
denied the officeholders and voters equal protection by removing
some officials in the county but not others, it should not
automatically have imposed one remedy -- reinstatement -- when
Texas law might well call for quite another -- removal of all the
affected officeholders. Yet if the District Court had limited
itself to declaring Art. 2351 1/2(c) unconstitutional, and the
Commissioners Court had determined that state law would then
require that all the county justice and constable positions be
vacated, [
Footnote 13] the
appellees would be forced to resort to state court in order to
vindicate their claimed right to reinstatement. In short, not only
the character of the federal right asserted in this case, but even
the availability of the relief sought, turn in large part on the
same unsettled state law questions. Because the federal claim in
this case is "entangled in a skein of state law that must be
untangled before the federal case can proceed,"
McNeese v.
Board of Education, 373 U. S. 668,
373 U. S. 674
(1963), we conclude that the District Court erred in not adopting
appellants' suggestion to abstain.
In order to remove any possible obstacles to state court
jurisdiction, we direct the District Court to dismiss the
complaint. [
Footnote 14] The
dismissal should be without prejudice,
Page 420 U. S. 89
so that any remaining federal claim may be raised in a federal
forum after the Texas courts have been given the opportunity to
address the state law questions in this case.
England v.
Louisiana State Board of Medical Examiners, 375 U.
S. 411,
375 U. S.
421-422 (1964).
Reversed and remanded.
[
Footnote 1]
Article 2351 1/2(c) provides:
"When boundaries of justice of the peace precincts are changed,
so that existing precincts are altered, new precincts are formed,
or former precincts are abolished, if only one previously elected
or appointed justice of the peace or constable resides within a
precinct as so changed, he shall continue in office as justice or
constable of that precinct for the remainder of the term to which
he was elected or appointed. If more than one justice or constable
resides within a precinct as so changed, or if none resides
therein, the office shall become vacant and the vacancy shall be
filled as other vacancies; provided, however, that, in precincts
having two justices, if two reside therein, both shall continue in
office, and if more than two reside therein, both offices shall
become vacant."
Another statute, Tex.Elec.Code Ann., Art. 1.05 (Supp.
1974-1975), has been read to require that school district officials
reside throughout their terms in the districts that they serve.
Whitmarsh v. Buckley, 324 S.W.2d 298 (Tex.Ct.Civ.App.
1959). County commissioners, by contrast, are not required to
reside in their precincts for their full terms.
Childress
County v. Sachse, 310 S.W.2d 414 (Tex.Ct.Civ.App.), holding
approved, 158 Tex. 371, 312 S.W.2d 380 (1958). The Texas courts
have not yet settled whether Art. 1.05 requires that justices of
the peace and constables reside in their precincts throughout their
terms, or whether the state constitutional provisions establishing
a requirement of county residence for all county officers,
Tex.Const., Art. 16, § 14; Art. 5, § 24, excuse justices and
constables from the requirements of Art. 1.05.
[
Footnote 2]
The appellees noted in their First Amended Complaint for
Declaratory Judgment, filed September 17, 1973, that the state
statute, as interpreted by the Commissioners Court, was in apparent
conflict with Art. 5, § 24, of the Texas Constitution, which
provides a mechanism for removal of county officers, including
justices and constables.
[
Footnote 3]
In their pretrial brief, the appellants more properly
characterized their "exhaustion" defense as a request for the
District Court to abstain.
[
Footnote 4]
The appellants point out that, since staggered terms are
constitutionally mandated in Texas, Tex.Const., Art. 16, § 65, it
would have been impossible for the Commissioners Court to have
redistricted at a time that would not have fallen in the middle of
some of the justices' or constables' terms.
[
Footnote 5]
Because it granted relief on the equal protection claim, the
court found it unnecessary to reach the appellees' other
contentions. Nor did the court address the state law questions or
the appellants' abstention argument.
[
Footnote 6]
We have jurisdiction of this appeal under 28 U.S.C. § 1253. The
statute challenged here was plainly of state-wide application; it
was attacked as being unconstitutional on its face or as applied;
and for the purposes of the Three-Judge Court Act, 28 U.S.C. §
2281, the defendant county commissioners were "state officers" in
administering the challenged statute.
Board of Regents v. New
Left Education Project, 404 U. S. 541,
404 U. S. 544
n. 2 (1972). The appellees' claim, moreover, appears sufficient to
raise a question for a three-judge court. We recently stated
that
"claims are constitutionally insubstantial only if the prior
decisions inescapably render the claims frivolous; previous
decisions that merely render claims of doubtful or questionable
merit do not render them insubstantial for the purposes of 28
U.S.C. § 2281."
Goosby v. Osser, 409 U. S. 512,
409 U. S. 518
(1973).
[
Footnote 7]
In
Gibson v. Berryhill, 411 U.
S. 564,
411 U. S.
580-581 (1973), we held that abstention was not
required, even though a suit that might have obviated the need for
federal injunctive relief was pending in the state Courts. In
Gibson, however, state authorities were pressing charges
against the plaintiffs without awaiting the results of the state
court action, and some of the charges against the plaintiffs might
have survived even a favorable ruling in the State Supreme Court.
Under those circumstances, we held that it was not an abuse of
discretion for the District Court to decline to abstain.
[
Footnote 8]
In
Wisconsin v. Constantineau, 400 U.
S. 433 (1971), we declined to order abstention where the
federal due process claim was not complicated by an unresolved
State law question, even though the plaintiffs might have sought
relief under a similar provision of the state constitution. But
where the challenged statute is part of an integrated scheme of
related constitutional provisions, statutes, and regulations, and
where the scheme as a whole calls for clarifying interpretation by
the state courts, we have regularly required the district courts to
abstain.
See Reetz v. Bozanich, 397 U. S.
82 (1970);
Meridian v. Southern Bell Tel. & Tel.
Co., 358 U. S. 639
(1959).
[
Footnote 9]
The appellees' allegation that Art. 2351 1/2(c) is
unconstitutionally vague is revealing. The "vagueness" of which
they complain is no more than uncertainty about the applicability
of the statute to a particular situation; it is not the sort of
vagueness that leaves those subject to a statute uncertain about
what is required of them. In the case where applicability of the
statute is uncertain, abstention is often proper, while in the case
where the vagueness claim goes to the obligations imposed by the
statute, it is not, since a single state construction often would
not bring the challenged statute "within the bounds of permissible
constitutional certainty."
Baggett v. Bullitt,
377 U. S. 360,
377 U. S. 378
(1964);
Procunier v. Martinez, 416 U.
S. 396,
416 U. S. 401
n. 5 (1974).
[
Footnote 10]
Opinions of the Attorney General are "entitled to careful
consideration by the courts, and quite generally regarded as highly
persuasive,"
Jones v. Williams, 121 Tex. 94, 98, 45 S.W.2d
130, 131 (1931). The 1974 opinion, however, may be given close
scrutiny by the state courts, as it appears to be in direct
conflict with several earlier opinions of the Attorney General,
see n 12,
infra.
[
Footnote 11]
Even if the
Sachse case does not apply to justice
precincts, Art. 2351 1/2(c) may still be invalid under state law as
a legislative encroachment on the county commissioners'
constitutional powers to fill justice vacancies created in the
course of redistricting. Tex.Const., Art. 5, § 28.
See
Op.Atty.Gen. M-68 (1967). If the statute is unconstitutional for
this reason, all the justice positions in the county would have
been vacated, not just those occupied by the appellees. Obviously,
this construction of Texas law would drastically alter the nature
of appellees' federal claim.
[
Footnote 12]
There is support for this view in several early cases, and in a
number of state Attorney General's opinions.
See Brown v.
Meeks, 96 S.W.2d 839 (Tex.Ct.Civ.App. 1936);
State ex rel.
Dowlen v. Rigsby, 17 Tex.Civ.App. 171, 43 S.W. 271,
holding approved, 91 Tex. 351, 43 S.W. 1101 (1897);
Ops.Atty.Gen. V-790 (1949); V-1032 (1950); WW-536 (1958); C-112
(1963). These opinions of the Attorney General were qualified in a
manner not affecting this case in Op.Atty.Gen. M-68 (1967);
see
also Op.Atty.Gen. M-562 (1970).
[
Footnote 13]
The Commissioners Court has, in fact, adopted this view of Texas
law in this case. Brief for Appellants 18-20.
[
Footnote 14]
Ordinarily, the proper course in ordering "
Pullman
abstention" is to remand with instructions to retain jurisdiction,
but to stay the federal suit pending determination of the state law
questions in state court.
See Zwickler v. Koota,
389 U. S. 241,
389 U. S. 244
n. 4 (1967). The Texas Supreme Court has ruled, however, that it
cannot grant declaratory relief under state law if a federal court
retains jurisdiction over the federal claim.
United Services
Life Ins. Co. v. Delaney, 396 S.W.2d 855
(1965);
see Romero v. Coldwell, 455 F.2d 1163, 1167 (CA5
1972);
Barrett v. Atlantic Richfield Co., 444 F.2d 38, 456
(CA5 1971).
We have adopted the unusual course of dismissing in this case
solely in order to avoid the possibility that some state law
remedies might otherwise be foreclosed to appellees on their return
to state court. Obviously, the dismissal must not be used as a
means to defeat the appellees' federal claims if and when they
return to federal court.
MR. JUSTICE DOUGLAS, dissenting.
The principle of abstention -- judicially created by
Railroad Comm'n v. Pullman Co., 312 U.
S. 496 (1941) -- promises to become a serious barrier to
the assertion by federal courts of the jurisdiction Congress has
bestowed on them. In the present case, suit was started in 1973 in
the District Court, which rendered its judgment January 30, 1974.
The term of office of the three justices of the peace who were
ousted expired December 31, 1974; that of the two constables will
expire December 31, 1976. After being brought all the way here by
the State that ousted them from office, they are now told that
their federal suit is dismissed, and that they must start
litigation anew in the state courts. They would necessarily have to
be very rich officeholders -- or else be financed by some
foundation -- to be able to pay the expense of this long, drawn-out
litigation. The three judges who made up the District Court in
Page 420 U. S. 90
this case were Thomas G. Gee, John v. Singleton, Jr., and Carl
O. Bue, Jr., all named from Texas, all versed in the idiosyncrasies
of Texas law. A state agency, acting with full authority of state
law,
* has ousted these
elected officials. By remitting them to a state court, we now leave
them without an effective remedy in view of the short terms of
office that are involved. I said in
Harrison v. NAACP,
360 U. S. 167,
360 U. S. 184
(1959) (dissenting opinion):
"We need not -- we should not -- give deference to a state
policy that seeks to undermine paramount federal law. We fail to
perform the duty expressly enjoined by Congress on the federal
judiciary in the Civil Rights Acts when we do so."
We have a like situation here.
Here, as in cases in a federal court by reason of diversity of
citizenship, ordinarily a federal court must not decline to
exercise the jurisdiction Congress has conferred upon it
"merely because the answers to the questions of state law are
difficult or uncertain or have not yet been given by the highest
court of he State,"
Meredith v. Winter Haven, 320 U.
S. 228,
320 U. S.
234-235 (1943). The alternative course, we held, "would
thwart the purpose of the jurisdictional act,"
id. at
320 U. S.
235.
Page 420 U. S. 91
The teaching of
Pullman is greatly exaggerated here. No
special circumstances warranting abdication of federal jurisdiction
have been shown. Where the judges making up the panel of the
three-judge court are from the State whose local law is at issue, I
would leave it to them to decide whether the policy of
Pullman should be applied in a given case. They know about
Pullman as well as most of us. It was a new doctrine when
announced. It is word that has long been part of the warp and woof
of federal law.
The three judges, seasoned in Texas law, saw no ambiguities, no
exotic question of law remaining unresolved, and rendered a
forthright decision that was eminently correct on federal law. I
would leave to our district judges the question whether the local
law problem counseled abstention.
We do a great disservice when we send these tired and exhausted
litigants into the desert in search of this Holy Grail that is
already in the keeping of the federal court.
* Texas Rev.Civ.Stat.Ann., Art. 2351 1/2(e) (1971),
provides:
"When boundaries of justice of the peace precincts are changed,
so that existing precincts are altered, new precincts are formed,
or former precincts are abolished, if only one previously elected
or appointed justice of the peace or constable resides within a
precinct as so changed, he shall continue in office as justice or
constable of that precinct for the remainder of the term to which
he was elected or appointed. If more than one justice or constable
resides within a precinct as so changed, or if none resides
therein, the office shall become vacant and the vacancy shall be
filled as other vacancies; provided, however, that, in precincts
having two justices, if two reside therein, both shall continue in
office, and if more than two reside therein, both offices shall
become vacant."