In Re First Choice Women's Resource Centers, Inc.

State attorneys general have broad powers to issue pre-litigation investigatory demands for the production of documents. Where those demands violate the federal constitution, recipients have brought section 1983 actions to challenge them. The Third, Sixth, Ninth, and Eleventh Circuits hold that federal jurisdiction exists for those challenges if the plaintiff alleges chilling of First Amendment rights or other cognizable harm. But the Fifth Circuit, in a decision that pre-dates Knick v. Scott Township, 139 S. Ct. 2162 (2019), holds that such a suit is not ripe unless a state court first enforces the demand. Here, the district court followed the Fifth Circuit’s rule and dismissed Petitioner’s challenge to the New Jersey Attorney General’s demand sua sponte. The district court acknowledged that under this rule a federal challenge would “seldom if ever be ripe” since “res judicata principles will likely bar” any federal challenge after the state-court adjudication. App.13a n.7. This “preclusion trap” poses the same unlawful “Catch-22” that Knick rejected as contrary to “the settled rule” that section 1983 does not require “exhaustion of state remedies.” 139 S. Ct. at 2167 (cleaned up). But when Petitioner sought emergency relief in the Third Circuit, a motions panel denied it in an unreasoned order. App.21–22a. And now Petitioner faces a state-court enforcement hearing on March 27 that will likely preclude its federal claims. The question presented is: Whether a section 1983 suit to enjoin an unlawful investigatory demand by a state official is ripe only after a state court has enforced the demand.