New Orleans Public Service, Inc. v. Council of the City of New Orleans

PETITIONER: New Orleans Public Service, Inc.
RESPONDENT: Council of the City of New Orleans
LOCATION: Michigan Dept. of Treasury

DOCKET NO.: 88-348
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 491 US 350 (1989)
ARGUED: Apr 25, 1989
DECIDED: Jun 19, 1989

Clinton A. Vince - on behalf of Respondents
Rex E. Lee - on behalf of Petitioner
Richard J. Lazarus - as amici curiae, supporting Petitioner

Facts of the case


Media for New Orleans Public Service, Inc. v. Council of the City of New Orleans

Audio Transcription for Oral Argument - April 25, 1989 in New Orleans Public Service, Inc. v. Council of the City of New Orleans

William H. Rehnquist:

We'll hear argument first this morning in No. 88-348, New Orleans Public Service, Inc. v. the Council of the City of New Orleans.

Mr. Lee.

Rex E. Lee:

Thank you.

Mr. Chief Justice, and may it please the Court:

This is an abstention case.

The question presented is whether the court of appeals and the district court properly abstained from deciding a threshold preemption challenge to the jurisdiction of the Respondent, City Council, to consider disallowing in its retail rates wholesale costs that have been determined by the Federal Energy Regulatory Commission.

The short reason why the Fifth Circuit's judgment must be reversed is that that judgment is based on an abstention standard that everyone sitting at the council table today agrees was wrong.

But we all phrase it a little differently, all three of us.

The Petitioner, Respondents, and the government are in basic agreement concerning the preliminary assessment that a federal court should make in deciding whether to abstain in a preemption case.

Frankly, I think the Respondents say it best.

Twice in their brief, at page 25 and again on page 30, they reiterate that the responsibility of a federal court in deciding whether to abstain from deciding a preemption claim where there is a pending state court proceeding is to decide whether the federal issue is facial, direct, readily apparent, and dispositive.

Very frankly, very simply, the Fifth Circuit simply did not do that.

Though the court did not formally reach the preemption issue, any objective reading of its opinion leaves no doubt that it regarded the federal preemption issue as controlling and correct and of a quality that placed the Council's prudence inquiry, in the language of the Fifth Circuit's opinion, beyond the Council's retail ratemaking authority.

What the Fifth Circuit has held, therefore, is that abstention is required even where the preemption claim deprives the state of jurisdiction and regardless of how correct and dispositive the preemption claim must be.

The net effect of that holding is to overrule this Court's consistent decisions.

But one of the three prerequisites for Younger v. Harris abstention is the existence of a substantive state interest... something apart from an adjudicatory interest... which would be infringed if the federal court were to decide the federal issue.

Sandra Day O'Connor:

Mr. Lee, what if we had before us a state criminal case and the defendant raises, for example, a federal constitutional double jeopardy claim and says the state has no right to try him at all, and that issue would be completely dispositive of the state's right to try the case.

We abstain, typically, in those cases--

Rex E. Lee:

That is correct.

Sandra Day O'Connor:

--in the federal court.

Rex E. Lee:

That is correct.

Sandra Day O'Connor:

How is that different from your case?

Rex E. Lee:

It is different in this crucial respect, Justice O'Connor, and the answer to that question is pivotal to this decision because I am well aware of the post-Younger cases that have involved that kind of constitutional challenge to a state proceeding.

On at least three separate occasions subsequent to Younger v. Harris, the Court has reiterated and each time has made a little more explicit what was really said in Younger v. Harris itself.

And that is, that one of the reasons... I think the reason... for Younger v. Harris' abstention is that it gives, in those constitutional challenge cases, an opportunity to the state court to place a narrowing construction on the state statute in such a way that it will mediate between state and federal interests.

Now, the classic example of where that is possible is when you have such state statutes as were involved in these post-Younger v. Harris cases, such as obscenity statutes, criminal syndicalism statutes, lawyer disciplinary proceedings.

Sandra Day O'Connor:

I don't see how that fits--

--That's not true in double jeopardy.

--the double jeopardy claim though.

Rex E. Lee:

With a double jeopardy claim even so, there is still the possibility that the state court might be able to... depending on the circumstances of the case... that you might be able to have a narrow construction.