The ”Bad Faith Exception” in Criminal Prosecutions

The ''Bad Faith Exception'' in Criminal Prosecutions

Like the Younger abstention doctrine itself (Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the genesis of the so-called bad faith exception was in the context of criminal prosecutions.

In a companion case to Younger v. Harris, the Supreme Court expanded on Younger's conception of bad faith, explaining that abstention may be inappropriate "in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction...." Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971).

As the application of Younger abstention evolved beyond the criminal realm, the language of the bad faith exception became more generic. So, now, for a federal plaintiff to invoke the bad faith exception, "the party bringing the state action must have no reasonable expectation of obtaining a favorable outcome." Cullen v. Fliegner, 18 F.3d 96, 103 (2d Cir.1994)

Thus, for example, the Court found that a refusal to abstain would be justified where a "proceeding has been brought to retaliate for or to deter constitutionally protected conduct, or where a prosecution or proceeding is otherwise brought in bad faith or for the purpose to harass." Id. at 103-04.

The cases concerning the bad faith exception have further emphasized that the subjective motivation of the state authority in bringing the proceeding is critical to, if not determinative of, this inquiry. See Schlagler v. Phillips, 166 F.3d 439, 442-443 (2d Cir.1999); see also Kirschner v. Klemons, 225 F.3d 227, 236-37 (2d Cir.2000).

A state proceeding that is legitimate in its purposes, but unconstitutional in its execution - even when the violations of constitutional rights are egregious - will not warrant the application of the bad faith exception. See Schlagler, 166 F.3d at 443-44.

To invoke this exception, the federal plaintiff must show that the state proceeding was initiated with and is animated by a retaliatory, harassing, or other illegitimate motive. See id. at 442-44.