Potrero Hills Landfill, Inc., et al v. County Of Solano, et al

Filing

FILED OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and RONALD M. GOULD) VACATED; REMANDED. Judge: MDH Authoring, Each party shall bear its own costs on appeal. FILED AND ENTERED JUDGMENT. [7890943]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
POTRERO HILLS LANDFILL, INC.;
BLT ENTERPRISES OF SACRAMENTO,
INC.; BRENTWOOD DISPOSAL
SERVICE, INC.; CONCORD DISPOSAL
SERVICE, INC.; CONTRA COSTA
WASTE SERVICE, INC.; DISCOVERY
BAY DISPOSAL, INC.; OAKLEY
DISPOSAL SERVICE, INC.; PITTSBURG
DISPOSAL AND DEBRIS BOX SERVICE,
INC.; RIO VISTA SANITATION
SERVICE, INC.; WASTE CONNECTIONS,
INC.; WASTE CONNECTIONS OF
CALIFORNIA, INC., DBA El Dorado
Disposal Service; TRASHPROS,
LLC; WEST COAST RECYCLING AND
TRANSFER, INC.,
Plaintiffs-Appellants,
v.
COUNTY OF SOLANO,
Defendant-Appellee,
SIERRA CLUB; NORTHERN
CALIFORNIA RECYCLING
ASSOCIATION; SPRAWLDEF, AKA
Sustainability, Parks, Recycling
and Wildlife Defense Fund,
Defendants-IntervenorsAppellees.





No. 10-15229
D.C. No.
2:09-cv-02514JAM-JFM
OPINION



Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
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Argued and Submitted
April 14, 2011—Pasadena, California
Filed September 13, 2011
Before: Stephen Reinhardt, Michael Daly Hawkins, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Hawkins

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COUNSEL
James B. Slaughter, Beveridge and Diamond, Washington,
D.C., and Lily N. Chinn, Beveridge and Diamond, San Francisco, California, for the plaintiffs-appellants.
James W. Laughlin, Deputy County Counsel, Fairfield, California, for the defendant-appellee.
Robert S. Perlmutter, Shute, Mihaly & Weinberger, San Francisco, California, for defendant-intervenor-appellee Sierra
Club.
John Douglas Moore, Henn, Etzel & Moore, Inc., Oakland,
California, for defendant-intervenor-appellee Northern California Recycling Association.
Kelly T. Smith, The Smith Firm, Sacramento, California, for
defendant-intervenor-appellee Sustainability, Parks, Recycling and Wildlife Legal Defense Fund.

OPINION
HAWKINS, Senior Circuit Judge:
Potrero Hills Landfill (“Potrero Hills”), a privately owned
solid waste and recycling business in Solano County, California (“the County”), and twenty-two related businesses appeal
the dismissal on Younger1 abstention grounds of their 42
U.S.C. § 1983 action for declaratory and injunctive relief
1

See Younger v. Harris, 401 U.S. 37 (1971).

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challenging the constitutionality of a voter-enacted county
ordinance restricting the import of out-of-county solid waste
into Solano County—an ordinance that the County itself
believes to be unconstitutional and refuses to enforce. We
hold that Younger abstention does not apply here. Although
private mandamus actions seeking to compel the County to
enforce the challenged ordinance were ongoing in state court
at the time this case was filed, those state proceedings were
brought by private interest groups and therefore did not implicate the state’s unique interest in protecting its vital executive
function of law enforcement; nor did they implicate the state’s
unique interests in protecting its vital judicial or legislative
functions. Put differently, a federal court’s exercise of jurisdiction over Potrero Hills’ claim would not interfere with the
state’s exercise of a basic state function and would not offend
the principles of comity and federalism that Younger abstention was designed to uphold. Accordingly, we vacate and
remand. As part of the remand, we ask the district court to
consider whether Pullman,2 rather than Younger, abstention
might be appropriate.
FACTS AND PROCEDURAL HISTORY
I.

Background

In 1984, voters in Solano County (“the County”) enacted a
ballot initiative, titled “Initiative Ordinance to Protect Solano
County’s Environment from Excessive Importation of Solid
Waste” (“Measure E”), capping the annual amount of solid
waste that may be imported into Solano County at 95,000 tons.3
2

See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941).
Section 2 of Measure E provides in relevant part:

3

The County of Solano shall not create a policy, adopt a resolution
or ordinance, enter into a contract or in any manner allow for the
importation of any solid waste . . . which originated or was collected outside the territorial limits of Solano County which will
bring the cumulative total amount of such imported solid waste
in excess of 95,000 tons per year.

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The measure contained no restrictions on the disposal of solid
waste generated within the County.
Although the County initially complied with Measure E by
including annual waste import limits in its Solid Waste Management Plan, it stopped doing so in 1992, in reliance on a
legal opinion issued by the Solano County Counsel concluding that Measure E was likely unconstitutional, in light of two
recent Supreme Court decisions striking down similar local
waste import restrictions as violative of the dormant Commerce Clause.4 The Legislative Counsel of California reached
the same conclusion in its own legal opinion on the measure.
Shortly thereafter, the County approved permit revision applications from each of the two major solid waste facilities
located within the County, one of which was Potrero Hills,
allowing disposal of increased quantities of solid waste.
Although the permits did not explicitly allow importation of
more than 95,000 tons of out-of-County solid waste, it authorized a quantity substantially greater than locally generated
amounts, thus implicitly permitting the two facilities to violate Measure E.
As a result, Potrero Hills became one of the three largest
landfills servicing the San Francisco Bay Area and today
4

The Supreme Court struck down as unconstitutional in violation of the
dormant Commerce Clause an Alabama statute imposing a waste disposal
fee only on hazardous wastes generated outside the State and disposed of
at a commercial facility within the State, but not on hazardous wastes generated within the State. Chem. Waste Mgmt., Inc. v. Hunt, 504 U.S. 334,
336-37 (1992). The Court also struck down on dormant Commerce Clause
grounds a Michigan statute prohibiting private landfill operators from
accepting solid waste originating outside the county in which their facilities are located. Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep’t of Natural Res., 504 U.S. 353, 361 (1992). The Court held that a county’s
restrictions on interstate commerce violate the dormant Commerce Clause
just as much as does a state’s. Id. (“[A] State (or one of its political subdivisions) may not avoid the strictures of the Commerce Clause by curtailing the movement of articles of commerce through subdivisions of the
State, rather than through the State itself.”).

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receives some 600,000 tons of solid waste annually from
jurisdictions outside Solano County, comprising two-thirds of
its total waste intake. Projected to reach full capacity by 2011,
it sought permission from the County in 2002 to expand its
landfill from 320 to 580 acres, which would provide an additional 61.6 million cubic feet (43 million tons) of new capacity (“Expansion Project”). The Solano County Board of
Supervisors approved the Expansion Project and certified the
project’s Final Environmental Impact Report (“EIR”).
Several environmental groups opposing the Expansion
Project, including Intervenor Northern California Recycling
Association (“NCRA”), brought suit in Solano County Superior Court challenging the sufficiency of the EIR pursuant to
the California Environmental Quality Act. A revised EIR was
produced and approved but was subject to a second suit by
environmental groups, including Intervenor Sustainability,
Parks, Recycling, and Wildlife Legal Defense Fund
(“Wildlife Fund”), who raised Measure E as an additional bar
to approval of the Expansion Project. A third EIR was produced and once again approved.
II.

State Mandamus Petitions

Following final approval of Potrero Hills’ Expansion Project, NCRA, Wildlife Fund, and a third environmental group,
the Sierra Club, each filed a mandamus action in Solano
County Superior Court, all seeking generalized injunctive
relief requiring the County to enforce Measure E, two of them
naming Potrero Hills as a real party in interest and seeking to
overturn the County’s approval of the landfill Expansion Project. The three proceedings were consolidated for briefing and
hearing on the merits.
III.

Federal Action

A few weeks after the last state mandamus action was filed,
Potrero Hills and twenty-two other plaintiffs involved in the

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solid waste and recycling business in either Northern California, Nevada, or Oregon, filed this single-cause action under
42 U.S.C. § 1983 seeking a declaration that Measure E is
unconstitutional in violation of the Commerce Clause and an
injunction blocking its enforcement. The three state court
petitioners intervened (“Intervenors”) and moved to dismiss
under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1),
or in the alternative to abstain from deciding the case under
Younger and Pullman. Potrero Hills opposed the motions to
dismiss and was joined by the County in requesting resolution
in federal court, as well as by the State of California, which
filed an amicus brief.5 Citing the state’s important interests in
“enforcement of Measure E, a local ordinance enacted by California voters,” and in “enforcement of its local solid waste
ordinance,” the district court invoked Younger abstention and
dismissed the suit without reaching Intervenor’s alternative
arguments for dismissal.6
STANDARD OF REVIEW
We review de novo the district court’s decision to abstain
5

The State of California’s particular interest in this suit arises from
Potrero Hills’ role in a 2008 antitrust consent decree negotiated by the
California Attorney General and the U.S. Department of Justice. Concerned by the potential anti-competitive effects of a proposed merger
between the second and third largest waste hauling and disposal companies in the United States, Allied Waste, Inc. and Republic Services, Inc.,
respectively, who combined owned all three of the major solid waste landfills in the Bay Area (Keller Canyon in Contra Costa County, Vasco Road
in Alameda County, and Potrero Hills in Solano County), the California
AG and U.S. Department of Justice entered into a consent decree allowing
Allied and Republic to merge only upon the condition that Republic divest
Potrero Hills (which was subsequently purchased in April 2009 by Waste
Connections, Inc., another major competitor).
6
The events that transpired subsequent to the district court’s dismissal
are not relevant to our review of the district court’s decision to abstain
under Younger, which we undertake in light of the facts and circumstances
existing at the time the federal action was filed. See Gilbertson v. Albright,
381 F.3d 965, 969 n.4 (9th Cir. 2004) (en banc).

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under the Younger doctrine. Green v. City of Tucson, 255 F.3d
1086, 1093 (9th Cir. 2001) (en banc), overruled in part on
other grounds by Gilbertson v. Albright, 381 F.3d 965, 97678 (9th Cir. 2004) (en banc).
DISCUSSION
The issue before us is not the constitutionality of Measure
E but rather only whether the district court properly dismissed
the case based on Younger abstention, a doctrine that forbids
federal courts from unduly interfering with pending state
court proceedings that implicate “important state interests.”
Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n,
457 U.S. 423, 432 (1982). The district court determined that
the ongoing state mandamus proceedings implicate the state’s
important interests in (1) enforcing a local ordinance enacted
by California voters and (2) enforcing a local solid waste ordinance, and that the remaining Younger requirements are also
satisfied. Although we agree that a state’s interest in having
its executive branch enforce such measures is sufficiently
important for Younger purposes, we conclude that a private
litigant’s interest in seeing such measures enforced, which is
all we have here, does not implicate the principles of comity
and federalism with which Younger and its progeny are concerned.
I.

Basic Younger Principles

[1] Although Younger itself held that, absent extraordinary
circumstances, a federal court may not interfere with a pending state criminal prosecution, 401 U.S. at 54, the Supreme
Court has extended Younger abstention to the civil context on
numerous occasions. In Middlesex County Ethics Committee
v. Garden State Bar Association, 457 U.S. 423 (1982), the
Supreme Court laid out a three-part test for determining when
to apply Younger to a civil proceeding, holding that abstention
is required so long as the state proceedings: (1) are ongoing;
(2) implicate “important state interests”; and (3) provide an

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adequate opportunity to raise federal questions. 457 U.S. at
432. To these three threshold requirements, we recently articulated an implied fourth requirement that (4) the federal court
action would “ ‘enjoin the proceeding, or have the practical
effect of doing so.’ ” AmerisourceBergen Corp. v. Roden, 495
F.3d 1143, 1148-49 (9th Cir. 2007) (quoting Gilbertson, 381
F.3d at 978).
[2] The case now before us is an unprecedented candidate
for Younger abstention and provides us a much-needed opportunity to clarify the scope of what constitutes an “important
state interest.” Though recognizing “important state interests”
in a wide variety of civil proceedings, neither we nor the
Supreme Court has held Younger to apply generally to ordinary civil litigation. See Middlesex, 457 U.S. at 432 (extending Younger to noncriminal judicial proceedings only “when
important state interests are involved”); Miofsky v. Superior
Court of the State of Cal., 703 F.2d 332, 338 & n.9 (9th Cir.
1983) (declining to extend Younger to encompass “conventional civil litigation”). To the contrary, abstention remains an
extraordinary and narrow exception to the general rule that
federal courts “ ‘have no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is not
given.’ ” New Orleans Pub. Serv., Inc. v. Council of the City
of New Orleans, 491 U.S. 350, 358 (1989) (“NOPSI”) (quoting Cohens v. Va., 6 Wheat. 264, 404 (1821)); see Cnty. of
Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89
(1959); Gilbertson, 381 F.3d at 969 n.2. Consequently, each
time we are asked to extend Younger to a new type of state
civil proceeding, we must determine whether federal adjudication would offend the doctrine’s animating principles, foremost of which is
the notion of ‘comity,’ that is, a proper respect for
state functions, a recognition of the fact that the
entire country is made up of a Union of separate
state governments, and a continuance of the belief
that the National Government will fare best if the

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States and their institutions are left free to perform
their separate functions in their separate ways . . . .
[T]he concept [represents] a system in which there is
sensitivity to the legitimate interests of both State
and National Governments, and in which the
National Government, anxious though it may be to
vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not
unduly interfere with the legitimate activities of the
States.
Younger, 401 U.S. at 44 (emphases added); see also Pennzoil
Co. v. Texaco, Inc., 481 U.S. 1, 11 (1987).
The key to determining whether comity concerns are implicated in an ongoing state proceeding — and thus whether the
second Younger requirement is met — is to ask whether federal court adjudication would interfere with the state’s ability
to carry out its basic executive, judicial, or legislative functions. Unless interests “vital to the operation of state government” are at stake, federal district courts must fulfill their
“unflagging obligation” to exercise the jurisdiction given
them. Miofsky, 703 F.2d at 337, 338 (internal quotation marks
omitted); accord Polykoff; IAS, Inc. v. Collins, 816 F.2d 1326,
1332 (9th Cir. 1987).
II.

Whether This Case Implicates Vital State
Functions

Here, the first and third threshold Younger requirements
appear easily satisfied. Potrero Hills concedes it was not prevented from raising its constitutional argument in state court,
and state judicial proceedings were indisputably “ongoing” at
the time Potrero Hills filed this federal action.7 We conclude,
7

Potrero Hills does not dispute that the state mandamus proceedings
were already underway when it filed this § 1983 action but nonetheless
insists that Younger abstention applies only to ongoing proceedings initi-

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however, that the state mandamus actions do not implicate
any important state interests vital to the operation of state
government. Because the second requirement is not satisfied,
dismissal based on Younger abstention was not required here.8
A.
1.

No Vital Executive Interests
The State is Not in an Enforcement Posture

[3] The Younger doctrine recognizes that a state’s ability
to enforce its laws “ ‘against socially harmful conduct that the
State believes in good faith to be punishable under its laws
and Constitution’ ” is a “basic state function” with which federal courts should not interfere. Miofsky, 703 F.2d at 336
(quoting Younger, 401 U.S. at 51-52). Where the state is in an
ated by the state. This argument confuses the inquiries under prongs one
and two, as our case law clearly demonstrates that the first Younger prong
may be satisfied even when the ongoing state proceeding involves only
private litigants. See, e.g., Pennzoil, 481 U.S. at 12-14; Juidice v. Vail, 430
U.S. 327, 335-36 (1977); AmerisourceBergen, 495 F.3d at 1149 (ultimately finding abstention improper due to lack of important state interests
but finding the first element satisfied in a private contract dispute). The
significance of the lack of a state-initiated enforcement proceeding is more
appropriately considered under the second Younger prong.
8
We need not discuss the fourth component of Younger abstention, for
only if all three threshold Middlesex requirements are satisfied do we then
consider whether the federal action would unduly interfere with the state
proceeding “ ‘in a way that Younger disapproves.’ ” AmerisourceBergen,
495 F.3d at 1149 (quoting Gilbertson, 381 F.3d at 978)). If the state
actions are not the type of proceeding to which Younger applies, then the
preclusive effect of any federal court ruling on the parallel proceeding by
virtue of res judicata or collateral estoppel is irrelevant for abstention purposes. See id. at 1151. Where concerns of comity are absent, “the ‘mere
potential for conflict in the results of adjudications’ is not the kind of
‘interference’ that merits federal court abstention. Rather, the possibility
of a race to judgment is inherent in a system of dual sovereigns.” Green,
255 F.3d at 1097 (quoting Colo. River Water Conservation Dist. v. United
States, 424 U.S. 800, 816 (1976)); accord AmerisourceBergen, 495 F.3d
at 1151.

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enforcement posture in the state proceedings, the “important
state interest” requirement is easily satisfied, as the state’s
vital interest in carrying out its executive functions is presumptively at stake.9 See Fresh Int’l Corp. v. Agric. Labor
Relations Bd., 805 F.2d 1353, 1360 n.8 (9th Cir. 1986) (“The
state’s interest in a civil proceeding is readily apparent when
the state through one of its agencies acts essentially as a prosecutor.” (internal quotation marks and alterations omitted));
see also Trainor v. Hernandez, 431 U.S. 434, 444 (1977)
(emphasizing that the state brought suit in its sovereign capacity). Thus, when the state seeks to enforce a law of significant
state importance through judicial or quasi-judicial action, we
have found abstention necessary to protect the state’s unique
interest in exercising its basic executive functions in a wide
range of civil contexts. See, e.g., Ohio Civil Rights Comm’n
v. Dayton Christian Schs., Inc., 477 U.S. 619, 628 (1986)
(recognizing state’s important interest in enforcing its
employment anti-discrimination laws through administrative
proceedings); Moore v. Sims, 442 U.S. 415, 435 (1979) (same
for enforcing child custody laws); Trainor, 431 U.S. at 444
(enforcing state welfare scheme); San Jose Silicon Valley
9

This presumption is overcome only under extraordinary circumstances,
such as where (1) the “state proceeding is motivated by a desire to harass
or is conducted in bad faith,” Huffman v. Pursue, Ltd., 420 U.S. 592, 611
(1975); see Younger, 401 U.S. at 47-49; (2) the challenged provision is
“ ‘flagrantly and patently violative of express constitutional prohibitions in
every clause, sentence and paragraph, and in whatever manner and against
whomever an effort might be made to apply it,’ ” Younger, 401 U.S. at 5354 (quoting Watson v. Buck, 313 U.S. 387, 402 (1941)); (3) the state
forum is “incompetent by reason of bias,” Hirsh v. Justices of the Supreme
Court of the State of Cal., 67 F.3d 708, 713 (9th Cir. 1995) (citing Gibson
v. Berryhill, 411 U.S. 564, 577-79 (1973)); or (4) when federal preemption
of a state law is “readily apparent,” Bud Antle, Inc. v. Barbosa, 45 F.3d
1261, 1272-73 (9th Cir. 1994) (explaining that when state law is “clearly
preempt[ed]” by federal law, “there is ‘no principle of comity or of “our
federalism’ ” that abstention would serve” (quoting Fresh Int’l, 805 F.2d
at 1361 n.11)); accord Champion Int’l Corp. v. Brown, 731 F.2d 1406,
1408-09 (9th Cir. 1984) (finding no significant state interest at stake where
state law was clearly preempted by ERISA).

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Chamber of Commerce Political Action Comm. v. City of San
Jose, 546 F.3d 1087, 1094 (9th Cir. 2008) (enforcing local
election regulations); Gilbertson, 381 F.3d at 983 (enforcing
land-surveying licensing provisions); Baffert v. Cal. Horse
Racing Bd., 332 F.3d 613, 618 (9th Cir. 2003) (enforcing
horse-racing licensing procedures); Woodfeathers, Inc. v.
Washington Cnty., Or., 180 F.3d 1017, 1021 (9th Cir. 1999)
(enforcing solid waste disposal and recycling ordinance); San
Remo Hotel v. City and Cnty. of S.F., 145 F.3d 1095, 1104
(9th Cir. 1998) (enforcing land-use and zoning ordinances);
World Famous Drinking Emporium, Inc. v. City of Tempe,
820 F.2d 1079, 1083 (9th Cir. 1987) (enforcing nuisance
laws); Worldwide Church of God, Inc. v. State of Cal., 623
F.2d 613, 616 (9th Cir. 1980) (per curiam) (investigating
charitable trust fraud pursuant to state Attorney General’s
supervisory authority).
[4] Here, the district court identified two state interests it
thought sufficiently “important” to warrant abstention: first,
the state’s interest in enforcing its ballot initiatives, and second, the state’s interest in enforcing its local solid waste ordinances. However, as we explained above, it is not the bare
subject matter of the underlying state law that we test to determine whether the state proceeding implicates an “important
state interest” for Younger purposes. Were that so, then any
ordinary civil litigation between private parties requiring the
interpretation of state law would pass Younger muster. Rather,
the content of state laws becomes “important” for Younger
purposes only when coupled with the state executive’s interest
in enforcing such laws. Had Solano County enforced Measure
E against Potrero Hills and denied it the revised Use Permit,
no doubt the second Younger requirement would be satisfied.
See Woodfeathers, 180 F.3d at 1021 (“[T]he County’s
enforcement of its solid waste ordinance implicates important
state interests for the purpose of Younger v. Harris.” (emphasis added)). But here, “the [County] simply was not in any
type of enforcement posture against [Potrero Hills] at the time
[Potrero Hills] filed the federal action attacking the constitu-

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tionality of the legislative enactment.” Exec. Arts Studio, Inc.
v. City of Grand Rapids, 391 F.3d 783, 791 (6th Cir. 2004).
Accordingly, the state’s vital executive functions would not
be unduly hampered by a federal court’s adjudication of
Potrero Hills’ claim.
2.

Private Citizens Lack Executive Powers

[5] Intervenors nonetheless assert that the state mandamus
actions, though initiated by private citizen groups rather than
by the state, qualify equally as “enforcement proceedings” for
Younger purposes. We find no support in the law for this
argument. The California Constitution reserves to the people
certain legislative powers, see Cal. Const. art. II, §§ 8-11; id.
art. IV, § 1, and the California Supreme Court is currently
considering whether the official proponents of initiative measures possess legal interests in upholding the constitutionality
of such measures when the executive officials vested with the
authority to do so refuse to exercise their authority. See Perry
v. Schwarzenegger, 628 F.3d 1191, 1193 (9th Cir. 2011);
Perry v. Brown, No.S189476 (Cal. Feb. 16, 2011) (granting
our request for certification). But Intervenors do not claim to
be the official proponents of Measure E, and private citizens
as a general matter lack executive authority to enforce state
laws, whether enacted by initiative or by the legislature. See,
e.g., Cal. Const. art. V, § 1 (“The supreme executive power of
this State is vested in the Governor.”). Private parties who are
aggrieved by the Executive’s failure to enforce a legislative
initiative or any other state law may be able to bring a mandamus action against the Executive in state court, but such
actions are neither sovereign in nature nor the exercise of the
executive authority of the state. Intervenors cite no authority
that instructs us to treat their mandamus actions as the equivalent of a state-initiated enforcement proceeding.
[6] At the time Potrero Hills filed this suit, it was not the
subject of any past or pending state-initiated enforcement proceeding; rather, Intervenors’ state mandamus actions made it

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the subject merely of prospective enforcement, where Younger does not apply. See Wooley v. Maynard, 430 U.S. 705,
711-12 (1977) (no Younger bar to federal injunctive relief in
the face of threatened repeated prospective state prosecution);
Steffel v. Thompson, 415 U.S. 452, 462 (1974) (no Younger
bar to federal declaratory relief when state proceedings are
not pending but only threatened); Wiener v. Cnty. of San
Diego, 23 F.3d 263, 267 (9th Cir. 1994); Exec. Arts Studio,
391 F.3d at 791-92. Where a federal plaintiff seeks relief not
from past state actions but merely from prospective enforcement of state law, federal court adjudication would not interfere with the state’s basic executive functions in a way
Younger disapproves. See Wooley, 430 U.S. at 709-11; Wiener, 23 F.3d at 267. While a state’s executive interest in
enforcing a local waste management ordinance would no
doubt qualify as abstention-worthy, private citizens generally
lack executive authority, and thus their efforts to enforce a
local waste management ordinance do not implicate the comity and federalism concerns that justify a federal court’s
extraordinary act of abstaining from hearing a case over
which it has jurisdiction. To hold otherwise would threaten to
“permit the exception to consume the rule.” Miofsky, 703 F.2d
332.
B.

No Other Vital State Functions Implicated

Although no vital executive state functions are at stake,
Intervenors urge us to recognize two additional comity concerns and to affirm the district court’s decision to abstain
based on (1) the state judiciary’s interest in adjudicating federal constitutional claims and enforcing ballot initiatives, and
(2) the sovereign voters’ interest in exercising their right to
legislate. Although the state’s important interest in protecting
its executive functions is by no means its only abstentionworthy one, Intervenors fail to identify how federal court
adjudication of this suit would unduly interfere with the
state’s ability to perform its vital judicial or legislative functions.

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1.

No Vital Judicial Interests

[7] To establish a vital interest in the state’s judicial functions, an abstention proponent must assert more than a state’s
generic interest in the resolution of an individual case or in
the enforcement of a single state court judgment. See Champion Int’l, 731 F.2d at 1408. Likewise, a state’s interest in a
universal judicial value such as “prompt resolution of cases”
is not cognizable for purposes of Younger abstention. See
AmerisourceBergen, 495 F.3d at 1150. Rather, the interest at
stake must go to “the core of the administration of a State’s
judicial system,” Juidice v. Vail, 430 U.S. 327, 335 (1977),
and its importance must be “ ‘measured by considering its significance broadly,’ ” AmerisourceBergen, 495 F.3d at 1150
(quoting Baffert, 332 F.3d at 618). For example, in both Juidice and Pennzoil, the federal plaintiffs brought challenges to
the very processes by which the state sought to compel compliance with the judgments of its courts, implicating the
state’s “wholesale interest in preserving its procedure for
posting an appeal bond” or in enforcing the orders and judgments of its courts through the contempt process. AmerisourceBergen, 495 F.3d at 1150; see Pennzoil, 481 U.S. at 12-14;
Juidice, 430 U.S. at 335-36 & n.12. Under such circumstances, “[n]ot only would federal injunctions . . . interfere
with the execution of state judgments, but they would do so
on grounds that challenge the very process by which those
judgments were obtained.” Pennzoil, 481 U.S. at 14 (emphasis added); see Polykoff, 816 F.2d at 1333.
Intervenors identify no comparable interest here in the state
judiciary’s vital functions, asserting instead only general judicial interests, such as the California state judiciary’s interest
in “providing a forum competent to vindicate any constitutional objections” to state laws. Equally unavailing is their
assertion of the state’s “important interest” in having its
courts issue writs of mandate to enforce voter initiatives.
Though it may be a “duty of the courts to jealously guard [the
initiative] right of the people” under California law, Bldg.

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Indus. Ass’n of S. Cal. v. City of Camarillo, 718 P.2d 68, 74
(Cal. 1986), the same can be said for a state court’s duty to
defend the federal Constitution, see Zwickler v. Koota, 389
U.S. 241, 248 (1967) (explaining that a federal court’s duty
“to give due respect to a suitor’s choice of a federal forum for
the hearing and decision of his federal constitutional claims”
cannot be avoided “merely because state courts also have the
solemn responsibility, equally with the federal courts, to
guard, enforce, and protect every right granted or secured by
the constitution of the United States” (internal quotation
marks and alterations omitted)). This type of generalized
interest does not fall within the scope of vital interests central
to the state courts’ functions recognized under Younger. See
NOPSI, 491 U.S. at 372-73; Polykoff, 816 F.2d at 1333
(abstention unwarranted where state action brought by county
attorney seeks only declaratory judgment on the same federal
issue as that involved in the federal action).
[8] To assert a vital state interest concerning the state judiciary, Intervenors must do more than assert a general interest
in the grant and enforcement of this writ of mandamus.
Potrero Hills’ suit challenges neither the authority of state
courts to issue such writs nor processes for their enforcement
once issued, and thus Intervenors have failed to establish that
a federal court’s adjudication of this case would unduly interfere with the state’s vital interest in “protecting ‘the authority
of [the state’s] judicial system, so that its orders and judgments are not rendered nugatory.’ ” Pennzoil, 481 U.S. at 14
n.12 (quoting Juidice, 430 U.S. at 336 n.12).
2.

No Vital Legislative Interests

Finally, Intervenors assert Younger abstention’s concern for
comity should also recognize an important state interest in
protecting the state’s initiative process and the sovereign powers of Solano County voters. See Cal. Const. art. IV, § 1
(reserving to the people of California “the powers of initiative
and referendum”); Cal. Elec. Code § 9122 (“If a majority of

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the voters voting on a proposed ordinance vote in its favor,
the ordinance shall become a valid and binding ordinance of
the county.”). Although we are unaware of any cases where
Younger abstention has been found appropriate based on the
state’s important interest in protecting its legislative, as
opposed to executive or judicial, functions,10 we do not rule
out the possibility that the Younger doctrine’s principles could
be extended to recognize such important state interests,
should they in fact be implicated. See Mervynne v. Acker, 189
Cal. App. 2d 558, 563 (1961) (describing the exercise of initiative and referendum as “one of the most precious rights of
our democratic process”); cf. NOPSI, 491 U.S. at 372
(explaining that the Court is “as concerned . . . to preserve the
integrity of a unitary and still-to-be-completed legislative process as [it is] . . . to preserve the integrity of judicial proceedings”).
[9] Nonetheless, the power of voters to legislate through
the initiative process simply is not implicated here. This case
does not, for example, challenge the right of voters to initiate
legislation or the processes by which ballot initiatives become
law. And as noted earlier, Intervenors do not claim to be the
official proponents of Measure E; even assuming that under
certain circumstances such official proponents possess interests under state law in defending the validity of the initiatives
they sponsor, Intervenors assert no such interests here. This
case therefore does not implicate a state’s central legislative
functions any more than does a suit challenging the constitutionality of a state law passed by the legislature. See NOPSI,
491 U.S. at 372 (“As a challenge to completed legislative
action, NOPSI’s suit . . . is, insofar as our policies of federal
10

Although Intervenors cite San Jose Silicon Valley, 546 F.3d at 1094,
for the proposition that enforcement of voter-enacted initiatives is an “important state interest,” the asserted state interest there was, again, the executive interest in enforcing “regulation of local elections.” That the
particular measure the city sought to enforce was enacted by ballot initiative was not central to the finding of an important state interest.

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comity are concerned, no different in substance from a facial
challenge to an allegedly unconstitutional statute or zoning
ordinance—which we would assuredly not require to be
brought in state courts.”).
C.

No Additional Comity Concerns

[10] Finally, that Solano County itself opposed abstention
and sought federal adjudication of Potrero Hills’ claim further
allays any concerns of offending comity. Abstention is not a
jurisdictional doctrine but rather a prudential one, allowing a
federal court to refuse to abstain where the state defendant
consents to federal jurisdiction. Although the Ninth Circuit
has not always deferred to a city’s request for federal adjudication, see, e.g., San Remo Hotel, 145 F.3d at 1104 (abstaining despite joint stipulation of the parties to stay state
proceedings pending resolution of the federal action), a state’s
voluntary submission to a federal forum eliminates the comity
and federalism concerns animating the Younger doctrine, and
the federal court need not “force the case back into the State’s
own system.” Ohio Bureau of Emp’t Servs. v. Hodory, 431
U.S. 471, 480 (1977) (“Younger principles . . . do not require
this Court to refuse Ohio the immediate adjudication it
seeks.”); see also Dayton Christian Schs., 477 U.S. at 626 (“A
state may of course voluntarily submit to federal jurisdiction
even though it might have had a tenable claim for [Younger]
abstention.”); Brown v. Hotel and Rest. Emps. and Bartenders
Int’l Union Local 54, 468 U.S. 491, 500 n.9 (1984); Kleenwell
Biohazard Waste & Gen. Ecology Consultants, Inc. v. Nelson,
48 F.3d 391, 394 (9th Cir. 1995). Here, not only were no
important state interests of the kind recognized by Younger at
stake, but the County—and the State of California, as amicus
—expressly asked the federal court to exercise its jurisdiction
to resolve this solitary question of federal constitutionality.
Under these circumstances, we find Younger abstention particularly unwarranted.11
11

Because we hold that the second element of Younger is not satisfied,
we need not consider Potrero Hills’ additional argument that abstention
denied federal plaintiffs not party to the state action their day in court.

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III.

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Pullman Abstention

Intervenors alternatively urge us to determine that the district court should have abstained under Pullman.12 See Pullman, 312 U.S. at 500-01. Though the various abstention
doctrines “are not rigid pigeonholes into which federal courts
must try to fit cases,” Pennzoil, 481 U.S. at 11 n.9, Pullman
abstention serves somewhat different objectives from Younger
and may be appropriate even when Younger is not.
Pullman generally is available only where three conditions
are satisfied: “(1) the federal plaintiff’s complaint requires
resolution of a sensitive question of federal constitutional law;
(2) the constitutional question could be mooted or narrowed
by a definitive ruling on the state law issues; and (3) the possibly determinative issue of state law is unclear.” Spoklie v.
Mont., 411 F.3d 1051, 1055 (9th Cir. 2005) (citing San Remo
Hotel, 145 F.3d at 1104); see also Smelt v. Cnty. of Orange,
447 F.3d 673, 679 (9th Cir. 2006).
[11] Thus, whereas Younger abstention aims to avoid interference with a state’s vital functions, Pullman defers to state
court interpretations of state law, not only out of concern for
comity, but also to avoid “ ‘premature constitutional adjudication’ ” that would arise from “interpreting state law without
the benefit of an authoritative construction by state courts.”
Gilbertson, 381 F.3d at 971 n.6 (internal quotation marks
omitted); see also Pennzoil, 481 U.S. at 11 (observing that
“[w]hen federal courts interpret state statutes in a way that
raises constitutional questions, ‘a constitutional determination
is predicated on a reading of the statute that is not binding on
state courts and may be discredited at any time—thus essen12

Even if we were to agree with the Intervenors that Pullman abstention
was warranted, we would not be able to affirm the district court’s dismissal on that basis but rather would be required to reverse and remand
with instructions to enter a stay under Pullman pending resolution of the
state law issues in state court. See San Remo Hotel, 145 F.3d at 1105 n.6.

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17317

tially rendering the federal-court decision advisory and the litigation underlying it meaningless’ ” (quoting Moore, 442 U.S.
at 428)).
Certification of state law questions to California’s highest
court serves the same function, allowing federal courts to
avoid erroneously “deciding state-law questions antecedent to
federal constitutional issues.” Arizonans for Official English
v. Ariz., 520 U.S. 43, 75 (1997); accord Doyle v. City of Medford, 565 F.3d 536, 543-44 (9th Cir. 2006) (seeking certification of a state law question in a “Pullman-type abstention”
situation); cf. Cal. R. Ct. 8.548(b)(2), (f)(5).
Unlike Younger, which requires dismissal of the federal
action where all four conditions are met, Pullman is a discretionary doctrine that flows from the court’s equity powers.
See Baggett v. Bullitt, 377 U.S. 360, 375 (1964) (“ ‘[Pullman
abstention] is not an automatic rule applied whenever a federal court is faced with a doubtful issue of state law; it rather
involves a discretionary exercise of a court’s equity powers.”); accord Smelt, 447 F.3d at 678 (reviewing decision to
abstain under Pullman under a modified abuse of discretion
standard). But because the court below did not reach Intervenors’ Pullman argument, we have no exercise of discretion to
review.
[12] Here, the absence of a definitive state court interpretation of Measure E could raise Pullman concerns, particularly
because Intervenors urge an interpretation of Measure E
applying the waste-import restrictions only to other California
counties but not to other states.13 That said, however, where
13

Even assuming the interpretation urged by Intervenors is a permissible
one under California rules of construction, such an interpretation might
not obviate the Commerce Clause question, though it would admittedly
change the contours of the inquiry. Cf. Fort Gratiot, 504 U.S. at 355; BFI
Med. Waste Sys. v. Whatcom Cnty., 983 F.2d 911 (9th Cir. 1992); Harper
v. Pub. Serv. Comm’n of W. Va., 396 F.3d 348 (4th Cir. 2005); but see On

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there is “no apparent saving construction” on the face of the
state law, abstention is unwarranted. Bd. of Airport Comm’rs
of City of L.A. v. Jews for Jesus, Inc., 482 U.S. 569, 575
(1987); see also Wisc. v. Constantineau, 400 U.S. 433, 439
(1971). Federal courts are not required to send a case to the
state court if doing so would simply “impose expense and
long delay upon the litigants without hope of its bearing
fruit,” Zwickler, 389 U.S. at 251; to the contrary, under such
circumstances, “it is the duty of a federal court to decide the
federal question when presented to it,” id. Rather than consider Pullman abstention de novo, we instead remand for the
district court to exercise its discretionary powers and determine in the first instance whether Pullman abstention is
appropriate under the circumstances presented.
CONCLUSION
Mindful that a federal court’s obligation to exercise its
jurisdiction is “ ‘particularly weighty’ ” when the federal
plaintiffs before it seek relief under 42 U.S.C. § 1983 for violation of their civil rights, Miofsky, 703 F.2d at 338 (quoting
Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir. 1980)), we
decline to expand the “extraordinary and narrow exception”
created by Younger and its progeny to the circumstances presented here, id. (quoting Frank Mashuda, 360 U.S. at 188).
Because the state mandamus actions brought by private interest groups did not involve any uniquely state interests in protecting the state’s vital executive, judicial, or legislative
functions, Younger abstention was not available and did not
excuse the district court from its duty to adjudicate this federal constitutional claim. We therefore vacate and remand for
the Green Apartments LLC v. City of Tacoma, 241 F.3d 1235, 1241-42
(9th Cir. 2001) (municipal ordinance requiring all waste generated within
the city to be deposited at the city’s public disposal area did not implicate
Commerce Clause concerns where plaintiff alleged only intrastate burdens).

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the district court to consider Intervenors’ alternative grounds
for dismissal, including Pullman abstention, in the first
instance.
VACATED and REMANDED. Each party shall bear its
own costs on appeal.