On December 19, 2014, long-simmering tensions between Mississippi Attorney General Jim Hood and the search engine giant Google boiled over into federal court when Google filed suit against the Attorney General to enjoin him from bringing civil or criminal charges against it for alleged violations of the Mississippi Consumer Protection Act. Hood had been investigating and threatening legal action against Google for over a year for its alleged failure to do enough to prevent its search engine, advertisements, and YouTube website from facilitating public access to illegal, dangerous, or copyright protected goods. The case has garnered a great deal of media attention, and with good reason. It raises important questions about Internet service providers’ responsibility for serving as a conduit to potentially dangerous or illegal goods, and it could have significant ramifications for the balance of power between the federal government and the states when it comes to regulating entities like Google.
” Attorney General Hood is exactly right to argue that Google’s federal court action threatens to “interfere with . . . on-going state . . . proceedings” and “presum[es] that the state courts will not safeguard federal constitutional rights.” But he is wrong to think this poses any kind of problem from the perspective of the Younger doctrine. To the contrary, the cases seem to suggest that this is just what federal courts are for.”
With the first round of procedural wrangling now in full swing, the case reads like something out of a Federal Courts syllabus. Thus, the parties have joined issue on the question whether the Younger doctrine requires the district court to abstain from adjudicating Google’s claims; whether there is an implied right of action available to Google under federal law to enjoin enforcement of Mississippi’s consumer protection laws; and, relatedly, whether the court has jurisdiction over Google’s claims for declaratory relief. There is even some discussion in the briefs of the obscure doctrine of complete preemption, though the doctrine is almost certainly irrelevant to the case, and its appearance in the Attorney General’s briefing is rather contrived.
What is not contrived, however, is the Younger abstention issue, and it is on that aspect of the case that this Essay will focus. Google filed its federal court lawsuit approximately six weeks after Attorney General Hood served it with a subpoena demanding information pertaining to Google’s policies and practices relating to websites, YouTube videos, or advertisements that promote what the subpoena labels “Illegal Content” or “Dangerous Content.” Younger, of course, prohibits federal courts from interfering with a variety of ongoing state judicial proceedings, and Hood has argued that the issuance of an administrative subpoena, without more, gives rise to an “ongoing proceeding” sufficient to trigger the Younger bar.
This issue—whether Younger requires a federal court to abstain from hearing a case if state law enforcement officials have already issued a subpoena running against the federal court plaintiff, but no criminal or civil action is pending—has divided the lower federal courts. It also provides a useful vehicle for thinking about Younger more generally by calling attention to an important feature of the doctrine that is immanent in the Supreme Court’s post-Younger case law, but is not acknowledged explicitly. The cases signal, specifically, that federal courts must defer to state proceedings that are overseen by an impartial state actor—or, at least, one with a plausible claim to impartiality. Proceedings engineered and supervised exclusively by a prosecutor will not do. And since the issuance of a subpoena (at least the kind of subpoena at issue in this case) represents the unilateral act of prosecutorial authorities, it falls outside the ambit of the Younger doctrine.
I. Google v. Hood
A. Factual Background
In December of 2013, twenty-four state Attorneys General signed a letter to Google’s general counsel admonishing Google for using its products to “monetiz[e] dangerous and illegal conduct,” enable the sharing and trafficking of content in violation of intellectual property law, “promot[e] . . . illegal and prescription-free drugs,” and “facilitat[e] . . . payments to and by purveyors of all of the aforementioned content through Google’s payment services.” The Attorneys General requested a meeting with Google to discuss these allegations and, more generally, “the abuse and presence of content [online] which represents a clear threat to public health and safety.” Over the ensuing weeks and months, Attorney General Hood would emerge as Google’s most dogged critic, repeatedly making public statements accusing Google of illegal conduct and threatening civil and criminal charges against it.
On October 21, 2014, Hood ratcheted up his investigation of Google by issuing a lengthy subpoena seeking documents and information pertaining to Google’s efforts to police third-party content that users might access through Google’s search engine and its YouTube website. The parties negotiated a return date of January 5, 2015; but before that date arrived, Google shifted to offense. It filed suit in the United States District Court for the Southern District of Mississippi seeking a declaration that Google cannot be held liable under Mississippi law for content created by third parties, as well as an injunction against enforcement of the Attorney General’s subpoena. Judge Wingate promptly stayed enforcement of the subpoena and scheduled a hearing for mid-February.
B. The Procedural Battle
The Attorney General has since moved to dismiss Google’s lawsuit, pressing a barrage of claims premised in one way or another on the notion that, if Google wishes to fight the Attorney General’s subpoena, it must file a motion to quash in state court or wait for Hood to enlist the state courts’ help in enforcing the subpoena and challenge its validity then and there. One variation on this argument is premised on the Supreme Court’s decision in Younger v. Harris. That case disables federal courts from enjoining ongoing state court criminal proceedings, and it has been extended by the Supreme Court to encompass civil enforcement actions, administrative proceedings that are “judicial in nature,” and certain proceedings to protect state court judgments or orders. As Hood has yet to file an action against Google, however, there is no state proceeding pending against it at this time (at least not in the conventional sense), and so the case does not fit straightforwardly into any of the applications of the Younger doctrine that have previously been endorsed by the Supreme Court.
Hood insists that issuance of the subpoena against Google nevertheless suffices to animate the Younger bar. The subpoena, he argues, is “part of an ongoing state law investigation” and is “judicial in nature.” It is “an ‘integral part’ of a potential proceeding against [the Plaintiff],” and so the policies underlying Younger apply with full force. Google rejects this view. It argues that the subpoena is simply a “pre-litigation investigative tool” and not the sort of civil proceeding deemed by the Court to fall within the ambit of Younger.
II. At the Frontier of the Younger Doctrine
The question presented by Google v. Hood is easy enough to state: Does the issuance of an administrative subpoena by a state Attorney General prior to the filing of any enforcement action qualify as an “ongoing state proceeding” sufficient to trigger the Younger bar? The answer, however, is not so simple. There is some temptation to say that the question is straightforwardly empirical—that, at any given time, we can simply observe whether a state proceeding is up and running, and answer the Younger question from there. But of course this requires a working definition of the term “proceeding”—so that we know just what it is we are supposed to be observing—and the term is hardly self-defining. We might say, for example, that a “proceeding” requires the filing of some kind of formal complaint or charge, in which case the mere issuance of an investigative subpoena, without more, would not qualify. But we might also reason, following Attorney General Hood, that investigative work is a crucial part of any enforcement action, and that the issuance of a subpoena should therefore be taken as a sign that a “proceeding” is in fact underway. Both of these accounts are plausible, and so it seems unlikely that we’ll get meaningful traction on the question that concerns us here by way of generalized reflection on what does and does not count as a “proceeding.”
The Supreme Court’s post-Younger decisions, meanwhile, do not address the question—at least not directly. There is a long line of cases stretching from Younger itself to the recent decision in Sprint Communications v. Jacobs expounding on the contours of the abstention doctrine, but the decisions tend to focus on the question of what type of proceedings merit Younger deference. The question of when such a proceeding begins—of when we can say that it is “ongoing” for Younger purposes—has not garnered meaningful attention.
If we examine the cases closely, however, and focus on the policy considerations motivating some of the line-drawing we see, we can identify principles that speak to the question in Google v. Hood. Collectively, the cases suggest that only proceedings of a certain sort—those presided over by an impartial state actor—merit deference under the Younger doctrine. And if that’s right, then a proceeding is not “ongoing” for Younger purposes until such time as it has been turned over to an impartial state official or, at least, an impartial state actor is able to exercise meaningful oversight authority. The administrative subpoena at issue in the Google litigation was issued on the say-so of state prosecutors—without any intervention by a state judge or other neutral officer—and so abstention seems unwarranted.
A. Investigative Activity and Available State Court Proceedings
Before delving into Supreme Court decisions focused generally on the matter of Younger deference, it is worth examining lower federal court decisions addressed to the specific question that concerns us here: whether Younger kicks in upon the issuance of an administrative subpoena by state prosecutorial authorities. As noted above, the federal courts are divided on the issue. Some reason that the issuance of a subpoena “suffice[s] to initiate an ongoing state proceeding,” while others insist that investigation of this sort is “too preliminary . . . to constitute a ‘proceeding’ triggering Younger.” Regardless of which side they take, however, the cases tend simply to assert that the issuance of a subpoena by prosecutors (or some other investigative move) either does or does not count as an ongoing proceeding. Sometimes they take the added step of reasoning by analogy to the array of Supreme Court decisions extending Younger outside the criminal realm. But what they do not do is explain why it might make sense (or not) to treat the issuance of a subpoena as sufficient to trigger Younger.
One opinion from the Southern District of New York, which concludes that Younger does apply in these circumstances (and on which Attorney General Hood relies extensively), makes a partial attempt at explanation:
Although the contested subpoenas are not part of a criminal proceeding, they were issued by the Attorney General pursuant to an investigation of Plaintiffs’ allegedly illegal activities, and the information sought may be used to initiate civil or criminal proceedings against Plaintiffs. . . . They are an integral part of a potential proceeding against Plaintiffs, and without such subpoenas, the Attorney General seldom could amass the evidence necessary to commence fraud actions.
The difficulty with this analysis is that nearly all investigative activity by attorneys general could be characterized as “an integral part of a potential proceeding;” and it is routinely the case that information sought by state officials in the course of an investigation could be used to initiate a civil or criminal action. Yet it is clear that if a state prosecutor launches an investigation into possibly unlawful conduct, but restricts that investigation to things like conversations with the target, interviews with third parties, and informal requests for documents and information, Younger will not come into play.
This is evident from the Supreme Court’s decision in the foundational case of Steffel v. Thompson. That case holds that Younger poses no obstacle to a federal court plaintiff securing a declaration as to the constitutionality of state law so long as there is no prosecution pending against the plaintiff in state court. In Steffel itself, the plaintiff was permitted to proceed with his federal court action for declaratory relief despite the fact that police officers had repeatedly investigated his allegedly unlawful conduct (distributing leaflets on a sidewalk outside a shopping center) and, indeed, threatened him with arrest. In fact, plaintiffs filing Steffel-style actions for declaratory relief routinely call attention to investigative activity by state law enforcement officials in order to demonstrate that their cases satisfy the constraints of the ripeness doctrine. And courts are hardly in the habit of dismissing these cases on the ground that such investigation is “an integral part of a potential proceeding” sufficient to trigger the Younger bar.
Given Steffel, the argument for abstaining in a case like Google v. Hood seems weak. It is clear that routine investigative activity by state law enforcement officials will not cause the Younger bar to kick in, and it is difficult to see why application of the doctrine should be contingent on whether an investigation happens to entail use of the subpoena power. It is no answer to say that, with the issuance of a subpoena, the target of an investigation has access to a state court proceeding—initiated by a motion to quash—through which objections to the investigation might be ventilated. For it is equally true, at least in most cases, that the target of an investigation that does not include use of the subpoena power has access to a state court proceeding—an action for declaratory or injunctive relief—through which she might raise objections to the investigation.
Here too, Steffel is telling. The Court in that case did not stop to inquire whether the federal plaintiff might have pressed his constitutional claims in some state court action for declaratory or injunctive relief. It was enough to refuse abstention that the federal court plaintiff was not party to an ongoing state court action in which those claims might have been raised. Nor, in the decades since Steffel was decided, have the lower federal courts endorsed the view that the availability of declaratory or injunctive relief in some yet-to-be-initiated state court action suffices to render abstention appropriate. The cases reflect the contrary view that it is one thing to say that a state court proceeding is available and another to say, as the Younger doctrine requires, that such a proceeding is ongoing.
B. Investigative Proceedings That Are “Judicial in Nature”
Despite all of this, federal courts are sometimes required to abstain in light of the pendency of state proceedings that include a significant investigative component. Thus, in Middlesex County Ethics Committee v. Garden State Bar Association, the Court held that a federal court challenge to the constitutionality of New Jersey’s attorney disciplinary rules was barred because the plaintiff was the subject of a pending disciplinary hearing before the state Ethics Committee. And in Ohio Civil Rights Commission v. Dayton Christian Schools, the Court ordered abstention in light of the pendency of proceedings before the Ohio Civil Rights Commission. In each of these cases, the administrative proceeding in question involved investigative work similar to the sort a prosecutor might perform prior to initiating a criminal or civil enforcement action; yet the Court resolved to lump these processes—part investigative, part adjudicative—along with criminal and civil enforcement actions subject to the Younger bar, rather than depositing them in the Steffel category and exempting them from the abstention requirement.
Middlesex and Dayton have come to stand for the proposition that a federal court must abstain not only in deference to state criminal and civil enforcement proceedings, but also in light of the pendency of state administrative proceedings that are “judicial in nature.” Yet neither case explains why, exactly, the administrative proceedings at issue were best regarded as “judicial,” rather than “administrative” or “investigative;” and, more important for present purposes, neither explains why “judicial in nature” is the barometer of whether Younger applies to an administrative proceeding. This is unfortunate because it makes it difficult to see exactly what drives the doctrinal move embodied in the two cases, and that, in turn, makes it more difficult to understand the policies underlying Younger more generally. As it turns out, moreover, understanding just why it matters that the proceedings in those two cases were “judicial in nature” can help us get traction on the problem in Google v. Hood.
Younger famously explained federal courts’ duty to abstain from interfering with ongoing state criminal proceedings by reference to considerations of equity, comity, and federalism. Over time, the first of these considerations (equity) has receded to the background of the Court’s Younger jurisprudence, while the “more vital consideration[s]” of comity and federalism have assumed center stage. In fleshing out these principles of comity and federalism, the Court placed particular emphasis on the interests in avoiding duplicative litigation and in refraining from casting aspersions on state institutions’ willingness or capacity to deal fairly with litigants pressing federal constitutional claims. Thus, in Huffman v. Pursue, the majority emphasized that federal court interference with a pending state civil enforcement action “results in duplicative legal proceedings, and can readily be interpreted ‘as reflecting negatively upon the state court’s ability to enforce constitutional principles.’” And, in Juidice v. Vail, the Court insisted that federal interference with state contempt proceedings “reflect[s] negatively upon the state court[s].” Lower federal courts now routinely flag these considerations as the primary forces motivating the Younger doctrine.
The key thing to observe at this point is that the Court has not extended this logic to ordinary investigative activities by state law enforcement officials. Again, we are back to Steffel. The Court in that case might have ordered abstention on the ground that when a litigant runs to federal court in the hope of bringing some state investigation to a halt, it “reflects negatively” on state institutions—to wit, the officials pursuing the investigation (why presume that they will ignore constitutional constraints and bring a prohibited enforcement action?) and the state judiciary as well (why not look to state courts to test the permissibility of state laws or official action?). But it didn’t. Instead, the Court insisted that “considerations of equity, comity, and federalism have little vitality” when no prosecution is pending against the federal plaintiff. “When no state criminal proceeding is pending,” the Court explained, “federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles.”
These arguments are unpersuasive. To begin with, the Court’s claim that the species of litigation authorized by its decision “does not result in . . . disruption of the state criminal justice system” is obviously false. Indeed, the whole point of the exercise (at least from the plaintiff’s perspective) is to disrupt the state’s criminal justice system. The disruption may or may not be warranted, but it is disruption either way. The same goes for the claim that the lawsuits authorized by Steffel do not reflect negatively on state courts’ ability to enforce constitutional principles. Of course they do. Indeed, the very existence of federal court jurisdiction in cases of this sort is an expression of uncertainty as to state courts’ willingness to vindicate federal claims. The point is not that Steffel got the balance wrong; it’s just that the Court’s justifications are overstated and oversimplified.
Despite the Justices’ reasoning, then, Steffel is best read not to support the conclusion that federal court challenges targeted at investigative activity by state prosecutors cast no aspersions on state officials or institutions, but that the casting of such aspersions is not always inconsistent with our federalism. Cases like Middlesex and Dayton Christian Schools, meanwhile, can help us to see why this is so. The Court’s emphasis in those cases on the question whether state administrative proceedings are “judicial in nature,” together with its refusal in Steffel to bar declaratory actions targeted at routine investigative activities by state law enforcement officials, suggests that application of the Younger doctrine is contingent on the formal participation of some impartial state actor in the enforcement and application of state law. Cases like Steffel just do not fit the bill; nor do administrative proceedings that lack what one federal court has labeled “trial-like trappings.” Though it is true, of course, that state prosecutors are officers of the court—duty-bound to uphold applicable state and federal laws—few would classify them as impartial actors in the mold of state judges or even in the mold of the officials who perform adjudicative functions for administrative bodies like those at issue in Middlesex and Dayton Christian Schools. The fact is, we expect that prosecutors will sometimes press charges and file complaints (and certainly they will investigate) when the law says they should not; they operate in an institutional setting that conduces to that result. And so it is no great insult to state prosecutors to cast aspersions on the evenhandedness of their investigative efforts.
This intuition fully explains the manner in which the cases sort. Younger, Huffman, Middlesex, and Dayton Christian Schools all involve state proceedings pending before a state body with a legitimate claim to impartiality. Steffel does not. The analysis here also suggests that it was essential to the holdings in Middlesex and Dayton Christian Schools that the plaintiffs did not file in federal court until after formal proceedings before the state administrative bodies had begun. With the filing of formal charges in each of those cases, the work of the administrative body shifted from strictly investigative pursuits to a hybrid of investigation and impartial adjudication. And with that shift, one of the central policy justifications underlying Younger—avoiding casting aspersions on impartial state decisionmakers—sprung to life.
Finally, this understanding of the Middlesex/Dayton rule finds support in decisions of the lower federal courts expounding on what it means for a state administrative proceeding to be “judicial in nature.” The Fourth Circuit’s decision in Telco Communications v. Carbaugh is illustrative. The court there explained that for an administrative proceeding to be “judicial in nature,” it must have “trial-like trappings.” And it focused on the questions whether the administrative body at issue initiated a formal hearing or requested a formal prosecution; whether meetings held as part of the investigation involved sworn testimony and whether a record was maintained; whether the target of the investigation was permitted to issue subpoenas and cross examine witnesses; and, crucially, whether an impartial hearing officer presided over the proceeding.
If all this is right, then Hood’s bid for abstention in the Google litigation ought to fail. The administrative subpoena under dispute in that case was issued at the direction of the Attorney General, without intervention or screening by a judicial officer or any other arguably neutral state actor. Attorney General Hood is exactly right to argue that Google’s federal court action threatens to “interfere with . . . on-going state . . . proceedings” and “presum[es] that the state courts will not safeguard federal constitutional rights.” But he is wrong to think this poses any kind of problem from the perspective of the Younger doctrine. To the contrary, the cases seem to suggest that this is just what federal courts are for.