Maria Laura Colon, Hato Rey, P. R., with whom Heriberto Quinones-Eshevarria, Hato Rey, P. R., was on brief, for appellant.

Reina Colon de Rodriguez, Asst. Sol. Gen., Dept. of Justice, San Juan, P. R., with whom Hector A. Colon Cruz, Sol. Gen., San Juan, P. R., was on brief, for appellees.

Before CAMPBELL and BOWNES, Circuit Judges, PETTINE, District Judge*.

PETTINE, District Judge.

This case dramatically diagrams the pitfalls that snare or nearly snare litigants and courts alike when a constitutional claim is brought in federal court that involves an ongoing state prosecution. The deceptively simple rule announced in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), that a federal court should not enjoin the pending state proceeding, premised on the sound judicial philosophy of respect for the state forum, has resulted all too often in practice in justice delayed.1 In the instant case, justice delayed is literally justice denied for the juvenile here who claims that his detention for several months prior to trial was without benefit of due process procedures required by the Constitution. His claim has yet to receive consideration by any court, local or federal. We reverse the district court's dismissal of the complaint and remand for an expeditious resolution of plaintiff's constitutional claim.

On September 27, 1977, defendant Carlos Haddock Perez, Judge of the Caguas Juvenile Court, ordered complaints filed against plaintiff Fernandez, a juvenile, charging Fernandez with five violations of the Penal Code of the Commonwealth of Puerto Rico. At the same time, Judge Perez placed Fernandez in detention pending trial; no bail was set because, under Puerto Rican law, 34 L.P.R.A. sec. 2007(d) (1969), juveniles are not eligible for bail. Plaintiff Fernandez alleges that the filing of the complaints and the pretrial detention were ordered without an adversary probable cause hearing, either before or since. In this respect, Judge Perez followed the procedure established for juvenile courts throughout the Commonwealth, 34 L.P.R.A. secs. 2001 Et seq., App. 1, Rules for Minors (1969). Pursuant to these Rules, the juvenile judge orders the filing of a complaint if "there is good cause to believe the minor committed the offense". Rule 5.1. His determination of good cause is apparently based solely on a social worker's or juvenile probation officer's investigatory report. Typically, that report results from the worker's or officer's interviews with the juvenile. The judge orders detention unless he finds, also based on the report, that "detention is not required for the best interests of the minor and of the community". Rule 3.6. Plaintiff complains that these ex parte procedures fail to afford the juvenile any opportunity prior to trial to contest either the probable cause finding or his pretrial detention.

In a petition to the juvenile court on October 18, 1977, while still detained, plaintiff requested a judicial hearing to determine probable cause. Plaintiff and defendants differ over whether the request was premised solely on the Constitution of Puerto Rico, as plaintiff maintains, or also on the United States Constitution, as defendants insist. That request was denied orally on October 26, 1977.

On November 18, 1977, plaintiff filed a petition for certiorari before the Supreme Court of Puerto Rico, raising both federal and Commonwealth constitutional claims. On December 8, 1977, the petition was denied without any indication of the reasons for denial.

No appeal was taken to the United States Supreme Court. Instead, on December 13, plaintiff filed a class action in federal district court pursuant to 42 U.S.C. sec. 1983 (1970), seeking a stay of state criminal proceedings scheduled to begin December 15, a declaration that the juvenile court procedure violated the federal constitution and an injunction enjoining defendants, Judge Perez, and the Honorable Jose Trias Monge, Chief Justice of the Supreme Court of Puerto Rico, in his administrative capacity, from following the procedure of detaining juveniles without a probable cause hearing. On December 14, the district judge refused to stay the state prosecution, finding, contrary to plaintiff's argument, that the trial on the merits would not moot the constitutional claim regarding pretrial detention. In addition, the district judge dismissed the federal action in deference to the pending state prosecution on the authority of Younger and Huffman v. Pursue, 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975). Although plaintiff's certiorari petition had been denied, the district court viewed the denial as no more than a rejection of an interlocutory appeal, with no negative intimations about the future prospects of a final appeal. The district court interpreted Huffman to compel dismissal of the federal complaint since avenues of state appellate review remained unexhausted.

Plaintiff remained in detention until his escape on December 15. Because of his flight, trial on the merits in juvenile court was postponed. Upon his return to custody in early June, 1978, trial was rescheduled for June 22.

I.

On appeal of the district court's dismissal, plaintiff urges that Younger restraint is inapplicable to his federal action. We agree. In the paradigm situation calling for Younger restraint, the state defendant brings a federal action challenging the statute under which he is simultaneously being prosecuted. Because the defendant can raise the constitutional defense in the ordinary course of his state prosecution, he has an immediate adequate remedy without federal intervention. Moreover, federal declaratory or injunctive relief would necessarily halt or undermine the validity of the pending criminal proceedings. To avoid this friction, Younger requires dismissal of the federal action, absent exceptional circumstances. See Cicero v. Olgiati, 426 F. Supp. 1213, 1218 (S.D.N.Y.1976); Developments in the Law Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1318-20 (1977).

Younger restraint is not limited to a challenge on the merits but extends, for example, to a claim of unconstitutional search and seizure, Perez v. Ledesma, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971). That claim can be adequately raised in due course at a suppression hearing. In addition, a federal finding of unconstitutionality necessarily undermines a state prosecution relying on the inadmissible evidence. In the many cases since Younger, the Supreme Court has never abandoned these essential predicates to Younger restraint adequate state remedy and danger of federal interruption of pending state proceeding but instead has expanded their scope. For example, in Huffman v. Pursue, supra, because the federal plaintiff had an adequate remedy in the state's direct appeal procedure and federal relief would interfere with that unexhausted appeal, Younger restraint was in order.

By contrast, plaintiff in the instant case neither had an adequate remedy in the Commonwealth courts, nor would the federal injunctive or declaratory relief he sought affect the pending trial on the merits. His constitutional challenge addresses neither the merits of his prosecution nor the procedure or admission of evidence at trial, but rather the procedure applicable to his pretrial detention. His claimed right not to be detained prior to trial without a due process hearing is not adequately protected by relief at or post trial. Concomitantly, violation of that collateral right is neither a defense at trial nor grounds for vacation upon conviction. Gerstein v. Pugh, 420 U.S. 103, 119, 95 S. Ct. 854, 865, 43 L. Ed. 2d 54 (1975). Thus, he does not have the opportunity to raise his collateral claim in the ordinary course of the Commonwealth's proceedings and federal declaratory or injunctive relief would not impact in any way the pending trial.2

The absence of an adequate remedy and of the danger of federal interference has removed Younger barriers to other challenges to state pretrial procedures. For example, in Gerstein v. Pugh, supra, a case that involved a similar problem of Younger applicability, the Supreme Court expressly noted that Younger did not require dismissal of a constitutional challenge brought in federal court by adult defendants detained while awaiting trial without a probable cause determination. The Court wrote:(R)espondents' claim for relief was not barred by the equitable restrictions on federal intervention in state prosecutions, Younger v. Harris, 401 U.S. 37 (91 S. Ct. 746, 27 L. Ed. 2d 669) (1971). The injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution. The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits. 420 U.S. at 108 n.9, 95 S. Ct. at 860.

In support, the Court cited the Third Circuit's similar holding in the juvenile context, Conover v. Montemuro, 477 F.2d 1073, 1082 (1972). Despite a more recent extension of Younger restraint to a challenge to pretrial attachment procedures, Trainor v. Hernandez, 431 U.S. 434, 97 S. Ct. 1911, 52 L. Ed. 2d 486 (1977), the Court in Trainor specifically distinguished Gerstein, without even remotely doubting its continuing validity. Unlike Gerstein, the Trainor attachment procedure was considered integral to the underlying action for fraud brought by the state. In addition, federal plaintiffs never answered the attachment or moved to quash it; both procedures were available in the ordinary course of state proceedings. Id. at n.9. The Supreme Court remanded for determination of whether the constitutional claim could be raised through either procedure, as a matter of local law. By implication, if the claim could not thus be raised, Younger restraint would be inappropriate.

To the extent the Supreme Court counsels Younger restraint in cases where federal relief will implicate the ongoing state proceedings and an adequate state remedy is available,3 the Court has apparently suggested a form of exhaustion of state remedies. However, neither Younger nor its later extensions ever intended to import wholesale an exhaustion requirement to sec. 1983 actions.4 Steffel v. Thompson, 415 U.S. 452, 472-73, 94 S. Ct. 1209, 1222-1223, 39 L. Ed. 2d 505 (1974); Huffman v. Pursue, Ltd., supra, 420 U.S. at 609 n.21, 95 S. Ct. at 1211; Clark v. Lutcher, 436 F. Supp. 1266, 1270 (M.D.Pa.1977); Cicero v. Olgiati, supra, 426 F.Supp. at 1220. To be consistent with the nonexhaustion principle of Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), and McNeese v. Board of Education, 373 U.S. 668, 82 S. Ct. 1433, 10 L. Ed. 2d 622 (1963), which principle has been repeatedly upheld, E. g., Steffel v. Thompson, supra, 415 U.S. at 472-73, 94 S. Ct. 1222-1233. Younger exhaustion must necessarily be limited to remedies, trial or appellate, that are provided in the ordinary course of the pending state proceedings. See Pugh v. Rainwater, 483 F.2d 778, 782 (5th Cir. 1973), Aff'd in part sub nom. Gerstein v. Pugh, supra, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54; Developments, Supra, 90 Harv.L.Rev. at 1318-20. Thus, the fact that the federal plaintiff could have sought an injunction, 32 L.P.R.A. § 3524 (Supp.), as defendants propose, in a completely separate Commonwealth court proceeding outside the four corners of the pending state prosecution, is of no consequence to plaintiff's sec. 1983 action. Similarly, plaintiff's failure to explore the possible alternative avenue of state habeas corpus relief5 should not bar plaintiff's suit. Contrary to the Second Circuit's reading, Wallace v. Kern, 520 F.2d 400, 406 (1975), Cert. denied, 424 U.S. 912, 96 S. Ct. 1109, 47 L. Ed. 2d 316 (1976), the Supreme Court did not reject Younger restraint in Gerstein because state habeas relief was unavailable. That fact was mentioned solely in connection with the merits of the Gerstein plaintiff's claim that the state procedure offered no opportunity for a determination of probable cause prior to the preliminary hearing 30 days following arrest and detention. In concluding that no adequate state remedy was available in Gerstein, the Court noted only that the challenge to pretrial detention procedures could not be raised as a defense at trial.

In the instant case, plaintiff did in fact make some attempt to exhaust Commonwealth remedies.6 In a motion which was not part of the normal procedure in juvenile court, plaintiff requested a hearing to determine probable cause. Upon denial, he petitioned the Supreme Court of Puerto Rico by writ of certiorari and the writ was also denied.7 Plaintiff's vain efforts to obtain a definitive Commonwealth decision go a long way to indicate that, in fact, no adequate Commonwealth remedy was available. Cf., e. g., Sims v. Dept. of Public Welfare, 438 F. Supp. 1179, 1188 (S.D.Tex.1977) (three-judge court). With regard to the motion in juvenile court, it is unclear whether the juvenile court was even an appropriate or competent forum, under local or federal law, to entertain constitutional challenges to its own procedures. See Trainor v. Hernandez, supra, 431 U.S. at 447, 97 S. Ct. 1911 (majority), 468-70, 97 S. Ct. 1911 (Stevens, J., dissenting); Buffalo Teachers Federation v. Helsby, 435 F. Supp. 1098, 1102 (S.D.N.Y.1977). With regard to available appeals, the court below interpreted the Puerto Rico Supreme Court's denial of certiorari as merely a rejection of an interlocutory appeal, leaving open, and thus "pending", review by that court after trial. But such post-trial review is small comfort to the juvenile who claims to have been detained for several months prior to trial without due process. Compare with State of New Jersey v. Chesimard, supra, 555 F.2d at 67, 73, 80-81.8 Thus, plaintiff's unsuccessful efforts in Commonwealth courts do not alter but rather strengthen our conclusion that Younger restraint was unwarranted since no adequate remedy in the ordinary course of Commonwealth proceedings was, in fact, available.

II.

Defendants argue on appeal9 that even if Younger principles did not require plaintiff's efforts to obtain a ruling in a Commonwealth court on his right to a probable cause hearing, plaintiff did in fact raise the federal constitutional issue on the juvenile and appellate court levels. The net result, defendants suggest, is a Commonwealth court judgment that federal constitutional due process does not require a probable cause hearing for detained juveniles. That judgment, defendants conclude, must be accorded res judicata effect, thus barring plaintiff's sec. 1983 action raising the identical constitutional claim. Plaintiff responds that the federal constitutional claim was only noted as background in the juvenile court motion, with center stage occupied by the Commonwealth constitutional claim. Conceding that the federal claim was raised and fully briefed in the petition for certiorari, plaintiff argues that denial of certiorari is not tantamount to a decision on the merits. Therefore, plaintiff concludes, there is no Commonwealth court decision to give res judicata effect to. In the alternative, plaintiff seeks escape from the res judicata juggernaut set in motion by Younger restraint when the federal plaintiff is an involuntary defendant in state court and raises the federal constitutional claims pursuant to, or, in this case, in anticipation of Younger restraint.

As a general rule, this Circuit accords state court decisions of federal constitutional claims res judicata effect in subsequent sec. 1983 actions. See Preiser v. Rodriguez, 411 U.S. 475, 497, 93 S. Ct. 1827, 1840, 36 L. Ed. 2d 439 (1973). The easiest application of the res judicata bar involves a federal plaintiff who seeks to relitigate the identical constitutional claim he, as a state plaintiff, sued upon and lost in state court. See England v. Louisiana State Board of Medical Examiners, Supra 375 U.S. at 419, 84 S. Ct. 461, 11 L. Ed. 2d 440. Consistent with traditional principles of res judicata, this Court has also barred subsequent sec. 1983 actions by a losing state plaintiff who did not actually raise the federal constitutional ground in state court but who instead urged an alternate ground of relief based on the identical facts. E. g., Ramirez Pluguez v. Cole, 571 F.2d 70 (1st Cir. 1978). Accord Scoggin v. Schrunk, 522 F.2d 436 (9th Cir. 1975), Cert. denied, 423 U.S. 1066, 96 S. Ct. 807, 46 L. Ed. 2d 657 (1976); Spence v. Latting, 512 F.2d 93, 98 (10th Cir.), Cert. denied, 423 U.S. 896, 96 S. Ct. 198, 46 L. Ed. 2d 129 (1975). This principle res judicata bar of claims that Might have been raised was extended to the state court defendant in a civil suit who failed to raise, as either a defense or counterclaim, his federal constitutional claim. Lovely v. Laliberte, 498 F.2d 1261 (1st Cir.), Cert. denied, 419 U.S. 1038, 95 S. Ct. 526, 42 L. Ed. 2d 316 (1974).

Again in the context of the involuntary state defendant but with the added special exigencies of a criminal trial, this Circuit has accorded only collateral estoppel effect to those claims "Actually litigated and decided at the state criminal trial. (Emphasis added.)" Maynard v. Wooley, 406 F. Supp. 1381, 1385 n.6 (D.N.H.1976) (three-judge court), Aff'd, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977); Mastracchio v. Ricci, 498 F.2d 1257 (1st Cir. 1974) Cert. denied, 420 U.S. 909, 95 S. Ct. 828, 42 L. Ed. 2d 838 (1975). Accord Meadows v. Evans, 550 F.2d 345, 347 (5th Cir.) (En banc ) (Tjoflat, J., concurring in part) (and cases cited therein), Cert. denied, 434 U.S. 969, 98 S. Ct. 517, 54 L. Ed. 2d 457 (1977); Blankner v. City of Chicago, 504 F.2d 1037 (7th Cir. 1974), Cert. denied, 421 U.S. 948, 95 S. Ct. 1678, 44 L. Ed. 2d 101 (1975); Williams v. Liberty, 461 F.2d 325 (7th Cir. 1972); Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir.), Cert. denied, 400 U.S. 846, 91 S. Ct. 93, 27 L. Ed. 2d 84 (1970). See Lombard v. Board of Education of City of New York, 502 F.2d 631 (2d Cir. 1974), Cert. denied, 420 U.S. 976, 95 S. Ct. 1400, 43 L. Ed. 2d 656 (1975) (preclusion only of claims actually raised by state civil plaintiff); Perrotta v. Irizarry, 430 F. Supp. 1274, 1277 (S.D.N.Y.1977). Cf. Turco v. Monroe County Bar Association, 554 F.2d 515, 521 (2d Cir. 1977); Goodrich v. Supreme Court of the State of South Dakota, 511 F.2d 316, 318 (8th Cir. 1975). Additionally, to bar all claims that Might have been raised in a criminal trial forces the criminal defendant to the uncomfortable choice between, on the one hand, possibly alienating the trial judge, particularly when the judge's own procedures are questioned, and delaying trial, and, on the other, foregoing his constitutional claim. See Developments, Supra, 90 Harv.L.Rev. at 1340. Cf. Moran v. Mitchell, 354 F. Supp. 86, 88 (E.D.Va.1973) (Hobson's choice for criminal defendant who must either risk conviction or forego federal forum). In addition, in many trials of less serious criminal matters, the state court may be of limited jurisdiction with informal, non-adversarial procedures and inadequate record-keeping. Imposing the res judicata bar for failure to raise a substantial constitutional claim in that type of forum would not best serve the interests of either local or federal judicial systems. See Currie, Res Judicata: The Neglected Defense, 45 U.Chi.L.Rev. 317, 348-49 (1978). The Commonwealth's juvenile court is just such a forum, where the deliberate emphasis is away from a formal, adversarial, issue-oriented process. Typical of the court's informal nature, the juvenile judge denied plaintiff's motion orally and no transcript has been furnished on appeal.10 Lastly, the narrower preclusion rule is particularly warranted when physical liberty is at stake. Because an unconstitutional deprivation of physical liberty is an intolerable affront to our most fundamental notions of justice, collateral attack of a state conviction is available through a writ of habeas corpus. Similarly, when the sec. 1983 action involves physical restraint, as here, justice counsels against an expansive application of res judicata. Ellis v. Dyson, 421 U.S. 426, 440-41 n.6, 95 S. Ct. 1691, 1699, 44 L. Ed. 2d 274 (1975) (Powell, J., dissenting). See Mastracchio v. Ricci, supra, 498 F.2d at n.2. That these jurisprudential concerns temper the effect of res judicata is entirely appropriate. See Mitchell v. National Broadcasting Co., 553 F.2d 265, 269 (2d Cir. 1977).

While better protecting the interests of the state criminal defendant, collateral estoppel, limited to claims actually litigated, still significantly promotes the comity goals that the broader doctrine of res judicata also serves. Friction arising from inconsistent state and federal decisions and the appearance of distrust of the state forum as co-equal enforcer of the federal constitution are both avoided by collateral estoppel principles. Only the benefit of repose for the opposing party and economy of judicial time are lost by permitting federal adjudication of claims that might have been raised in state court but were not in fact. Although these interests are not insubstantial, the weightier concerns of protecting a fair criminal trial and the involuntary state criminal defendant's choice of forum for his constitutional claims justify the more limited bar. Cf. Developments, Supra, 90 Harv.L.Rev. at 1330-54.11

Consistent with the framework of prior First Circuit holdings, our attention must now focus on whether the federal constitutional claim was actually litigated and decided by the Commonwealth courts. That determination is based on a careful scrutiny of the record, including the parties' pleadings and the decisions of the various courts. Lamentably, that record has significant gaps and ambiguities, most notably the absence of any record of the juvenile judge's decision, that render difficult the determination of what was in fact decided. However, informed by the concerns we have outlined, any doubts must be resolved in plaintiff's favor. Mastracchio v. Ricci, supra, 498 F.2d at 1261; Clark v. Lutcher, supra, 436 F.Supp. at 1272.

Examination of plaintiff's motion before the juvenile court indicates that plaintiff initially mentioned that both the Commonwealth and federal constitutions guaranteed the minor's right to a probable cause hearing. The only explicit reference to federal law noted that both the Puerto Rico and United States Supreme Courts, citing In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), recognized the criminal aspect of juvenile proceedings. In two places, plaintiff simply refers to "the constitutional principles of due process of law and fair treatment" and to "our Constitution". However, both these references, viewed in context, suggest that the Commonwealth constitution was intended and would be so understood by the decision-maker. The former reference follows discussion of the content of due process guaranteed by the local constitution and the latter is followed by citation to a decision by the Supreme Court of Puerto Rico. The central thrust of the motion is clearly local law. Comparison with plaintiff's well-briefed petition for certiorari, which he admits deliberately raised the federal claim, suggests that the omission of any federal case law in the motion, with the sole exception of Gault, was not inadvertent. Express reservation of the federal claim in the juvenile court was not necessary since the motion does not reasonably appear to raise that claim and no evidence indicates that the juvenile judge nonetheless actually proceeded to decide it. See England v. Louisiana State Board of Medical Examiners, supra, 375 U.S. at 421-22, 84 S. Ct. 461. We conclude, therefore, that the federal constitutional claim was not actually litigated in juvenile court. See, e. g., Newman v. Board of Education, 508 F.2d 277, 278 (2d Cir. 1975), Cert. denied, 420 U.S. 1004, 95 S. Ct. 1447, 43 L. Ed. 2d 762 (1975); Perrotta v. Irizarry, supra, 430 F.Supp. at 1277; Suarez v. Administrador Del Deporte Hipico de Puerto Rico, 354 F. Supp. 320, 325 (D.P.R.1972).

The issue with regard to plaintiff's appeal is not whether the federal claim was actually raised, which all sides concede, but whether that claim was actually decided by the Supreme Court of Puerto Rico. The Supreme Court simply denied certiorari without any statement of reasons. The district court, better versed in local practice than we, indicated that the interlocutory nature of the appeal and not the merits may have prompted the denial. Regardless of the reason, be it procedural12 or substantive, the denial of certiorari is not the equivalent of a decision on the merits. The Supreme Court of Puerto Rico has explicitly and repeatedly advised that denial of certiorari without reasons does not "express any view as to the merits of the case," Boringuen Furniture v. District Court, 78 P.R.R. 858, 861 (1956), and signifies only that less than three judges were "inclined to issue the writ." Bartolomei v. Superior Court, 77 P.R.R. 436, 437 (1954). The federal district court for the District of Puerto Rico has so interpreted a denial of certiorari by the Commonwealth's highest court, Suarez v. Administrador Del Deporte Hipico de Puerto Rico, supra, 354 F.Supp. at 326-27. But see Torres Irizarry v. Toro Goyco, 425 F. Supp. 366 (D.P.R.1976) (dictum). That denial of certiorari imports no view on the merits is consistent with the United States Supreme Court's own practice. E. g., Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 366 n.1, 93 S. Ct. 647, 650, 34 L. Ed. 2d 577 (1973); Maryland v. Baltimore Radio Show, 338 U.S. 912, 919, 70 S. Ct. 252, 94 L. Ed. 562 (1950). In conclusion, since no Commonwealth court has passed on the merits of plaintiff's federal constitutional claim, collateral estoppel principles do not foreclose consideration of this claim by the district court.

Reversed and remanded.