FEDERAL COURTS—CERTIFICATION BEFORE FACIAL INVALIDATION: A RETURN TO FEDERALISM

Western New England Law Review Volume 12 12 (1990) Issue 2 Article 3 1-1-1990 FEDERAL COURTS—CERTIFICATION BEFORE FACIAL INVALIDATION: A RETURN TO FEDERALISM Beth A. Hardy Follow this and additional works at: http://digitalcommons.law.wne.edu/lawreview Recommended Citation Beth A. Hardy, FEDERAL COURTS—CERTIFICATION BEFORE FACIAL INVALIDATION: A RETURN TO FEDERALISM, 12 W. New Eng. L. Rev. 217 (1990), http://digitalcommons.law.wne.edu/lawreview/vol12/iss2/3 This Notes and Comments is brought to you for free and open access by the Law Review & Student Publications at Digital Commons @ Western New England University School of Law. It has been accepted for inclusion in Western New England Law Review by an authorized administrator of Digital Commons @ Western New England University School of Law. For more information, please contact . FEDERAL COURTS-CERTIFICATION BEFORE FACIAL INVALIDA TION: A RETURN TO FEDERALISM INTRODUCTION A federal court is often asked to review the constitutionality of a state statute before a state court has had the opportunity to interpret the statute. A first amendment overbreadth challenge to a state stat ute is a common example} In such a situation, the federal'court must proceed with caution and restraint before invalidating the state law in order to avoid the possibility of unnecessary interference with a state regulatory program. 2 On the other hand, before upholding the statute, the federal court must also consider the potential "chilling effect"3 on protected activity.4 Consequently, the Supreme Court has held that "[i]n accommodating these competing interests . . . a state statute should not be deemed facially invalid unless it is not readily subject to 1. The first amendment overbreadth doctrine permits a federal court to invalidate a federal or state statute because it is susceptible of application to a substantial amount of protected expression. New York v. Ferber, 458 U.S. 747, 768-70 (1982). See infra notes 67-78 and accompanying text for a discussion of the first amendment overbreadth doctrine. 2. Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975). 3. "Chilling effect" is a term of art in constitutional law that focuses attention on the practical consequences of state action and its effect on individual conduct. See generally Schauer, Fear. Risk and the First Amendment: Unraveling the "Chilling Effect", 58 B.U.L. REv. 685 (1978); Note, The Chilling Effect in Constitutional Law, 69 CoLUM. L. REv. 808, 808 (1969). A "chilling" of constitutional rights occurs when an individual must choose between risking prosecution for engaging in some conduct or foregoing that conduct. The deterrence arises from the fear that lawful conduct may be punished through prosecution under a government regulation not specifically directed at the protected activity. Schauer, supra, at 693. The chilling effect is most frequently noted in first amendment cases, but can apply to any individual right setting. Note, supra, at 808; see also Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973) (A statute's very existence may cause other individuals not before the court to refrain from constitutionally protected speech or expression.); Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) (noting that the chilling effect may derive from the very fact of prosecution, regardless of its success or failure). 4. Erznoznik, 422 U.S. at 216 (recognizing "that a demonstrably overbroad statute ... may deter the legitimate exercise of First Amendment rights"). Even if the law is upheld, it may not be clear what behavior the statute prohibits. Error and uncertainty in the legal system make it difficult to predict the outcome of litigation. For instance, laws may be erroneously declared or improperly applied to the facts. Thus, a chilling effect may always be present because of the "fear that lawful conduct may nonetheless be punished because of the fallibility inherent in the legal process." See Schauer, supra note 3, at 694 95. 217 WESTERN NEW ENGLAND LAW REVIEW 218 [Vol. 12:217 a narrowing constI'Uction by the state courts,"S and "its deterrent ef fect on legitimate expression is both real and substantial."6 A federal court reviewing the constitutionality of an unconstI'Ued state statute may proceed in one of three ways. First, under the doc trine established in Railroad Commission v. Pullman CO.7 ("Pullman abstention"), a federal court can decline to adjudicate the federal con stitutional issue until a state court has had the opportunity to constI'Ue the statute authoritatively.s Abstention is a discretionary power9 which federal courts should invoke only when a definitive I'Uling on the state issue will terminate or substantially alter the federal contro versy.1O In addition, the costly nature of abstention II works against its application when the statute allegedly abridges free expression or dis courages protected activities. 12 Thus, federal courts may opt to I'Ule on the merits of the controversy without the benefit of an authoritative state interpretation. The second option, proceeding to the merits, defeats the purpose of Pullman abstention, which is to recognize state independence and maintain an efficient federal jUdiciary. 13 Furthermore, in the absence of an authoritative constI'Uction of the state statute, it is often difficult to define precisely the constitutional question presented. 14 The third option is to invoke a state certification procedure, a 5. Erznoznik, 422 u.s. at 216 (citing Dombrowski v. Pfister, 380 U.S. 479, 497 (1965». 6. Id. (citing Broadrick v. Oklahoma, 413 U.S. 601, 612-15 (1973». 7. 312 U.S. 496 (1941). 8. When a federal court abstains, it is avoiding answering a constitutional question prematurely since an interpretation of the state statute could obviate the need to resolve the constitutional question. "The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of the state court." Id. at 500. Thus, Pullman abstention is an equitable power which allows federal courts to further the harmonious relations between state and federal authority. Id. at 501. 9. Id. 10. Bellotti v. Baird, 428 U.S. 132, 148 (1976); Harrison v. NAACP, 360 U.S. 167, 177 (1959); Pullman, 312 U.S. at 498. 11. Abstention forces litigants to initiate a state court proceeding on the state law issues, which obviously delays final adjudication and increases the expense to the litigants. See infra notes 30-33 and accompanying text for further discussion of the burdens absten tion imposes upon litigants. 12. Dombrowski v. Pfister, 380 U.S. 479, 489-90 (1965); Zwickler v. Koota, 389 U.S. 241, 252 (1967) (observing that the delay of state court proceedings might itself effect the impermissible chilling of the constitutional right sought to be protected); see also Note, Pullman Abstention: Reconsidering the Boundaries, 59 TEMP. L.Q. 1243, 1248-49 (1986). 13. Pullman, 312 U.S. at 501. 14. Bellotti, (...truncated)