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    AMERICAN TRIAL LAWYERS v. N. J. SUPREME COURT, 409 U.S. 467 (1973)

    U.S. Supreme Court

    AMERICAN TRIAL LAWYERS v. N. J. SUPREME COURT, 409 U.S. 467 (1973)

    409 U.S. 467

    AMERICAN TRIAL LAWYERS ASSN., NEW JERSEY BRANCH, ET AL. v. NEW JERSEY
    SUPREME COURT
    APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
    No. 72-691.

    Decided January 15, 1973

    In abstaining so as to permit a state court to pass on an issue of state law, a district court should retain jurisdiction pending the state proceeding so that appellants may preserve their right to litigate their federal claims in federal courts at the conclusion of the state proceeding.

    Vacated and remanded.

    PER CURIAM.

    On December 21, 1971, the Supreme Court of New Jersey announced the adoption of Rule 1:21-7, effective January 31, 1972, establishing a graduated schedule of maximum contingent fees applicable to tort litigation conducted by New Jersey attorneys. 1 Appellants, representing members of the New Jersey bar, brought this action to enjoin the enforcement of the rules on the grounds that they violate several provisions of the Constitution, including the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The trial [409 U.S. 467, 468]   judge convened a three-judge court. 28 U.S.C. 2281. 2  

    After hearing argument on the merits, the District Court pointed out that:

    The court added that "[a]s was true in Reetz the initial issue is whether the state constitution authorized the enactment challenged." The court therefore granted defendant-appellee's motion to dismiss.

    By timely motion under Fed. Rule Civ. Proc. 59 (e), appellants sought an order amending the judgment by either

    The motion was denied and appellants brought this appeal. 3  

    Footnotes

    [ Footnote 1 ] Rule 1:21-7 provides in part:

    [ Footnote 2 ] Appellee maintained below, as it maintains before this Court, that a three-judge court need not have been convened because the constitutional question presented is insubstantial. Bailey v. Patterson, 369 U.S. 31 (1962). It insists, however, that if the claim is substantial then it must be heard by a court of three judges. 28 U.S.C. 2281. In view of the posture of the case on this appeal, we do not, of course, express any view on the merits of the question presented.

    [ Footnote 3 ] The validity of the District Court's decision to abstain is not at issue on this appeal.

    [ Footnote 4 ] "It is better practice, in a case raising a federal constitutional or statutory claim [where the doctrine of abstention is applied], to retain jurisdiction, rather than to dismiss . . . ." Zwickler, supra, at 244 n. 4. [409 U.S. 467, 470]  

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