Sandra Lee Becker, Etc., Richard Guy Steffel v. John R. Thompson, Etc.

TUTTLE, Circuit Judge

(concurring in result).

I concur in the result reached by the majority. However, on the facts of this case, I feel that nearly all of what the majority has said is unnecessary to a decision in this case, and is thus obiter dictum. Unlike Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971), and its companion cases, the case we have before us does not involve a pending state court prosecution. Nor does it involve a statute which is facially defective in any way; nor does the complaint contain any allegation of “bad faith harassment.” Under these facts it is simply unnecessary to speculate on what effect the “February Sextet” had on Dombrowski v. Pfister, 380 U.S. 479 , 85 S.Ct. 1116 , 14 L.Ed.2d 22 (1965), and its progeny, or in effect, to guess how the Supreme Court would rule on an is *924 sue it explicitly stated that it was not deciding. 1

In short, since I feel that under the facts of this case, Dombrowski itself would not justify federal intervention, I decline the invitation to broaden unnecessarily my decision by speculating on what the Supreme Court may or may not ultimately do.

In Dombrowski v. Pfister, supra, the court held that the allegation of bad faith prosecution stated a claim under 42 U.S.C. § 1983 and that if this allegation was proven to be true, an injunction must be granted. In addition, the court stated that the Louisiana statutes involved in that case were so vague and overbroad as to be highly susceptible to unconstitutional application. Thus, their very existence tended to have a “chilling effect” upon the exercise of first amendment rights involved in that case. The court therefore issued another injunction restraining state officials from enforcing or threatening to enforce the statute involved against anyone until it received a narrowing construction in a state declaratory judgment proceeding. Regarding the propriety of such Federal Court intervention, the court stated:

“We hold the abstention doctrine is inappropriate for cases as the present one where, unlike Douglas v. City of Jeannette, statutes are justifiably attacked on their face as abridging free expression, or as applied for the purpose of discouraging protected activities.” 380 U.S. at 489-490 , 85 S.Ct. at 1122 .

These same principles were reiterated in Zwickler v. Koota, 389 U.S. 241 , 88 S.Ct. 391 , 19 L.Ed.2d 444 (1967), a case, which like the one at bar, involved the propriety of Federal Court intervention when only a declaratory judgment was sought.

Both Dombrowski and Zwickler require that we do not intervene in the ease at bar. We are not dealing with a statute that is facially defective in any way. Moreover, there is nothing in this record that would support a finding that this threatened application of an otherwise valid statute was “for the purpose of discouraging protected activities.” (Another way of saying “for bad faith harassment.”) Thus, this case seems to fall directly under the Supreme Court’s ruling in Cameron v. Johnson, 390 U.S. 611 , 88 S.Ct. 1335 , 20 L.Ed.2d 182 (1968). In that case, the Court held that where a challenged state law was not facially defective in any way and the record did not establish any bad faith, this was therefore:

“. . . not a case in which ‘. . .a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford [appellants] any protection which they could not secure by prompt trial and appeal pursued to this Court.” Cameron at 620 , 88 S.Ct. at 1340, citing Douglas v. City of Jeannette, 319 U.S. at 164, 63 S.Ct. at 887.

This is precisely the situation in the case at bar. I, therefore, feel that we do not need to extend Younger. The issue, as I frame it, is fully cognizable within the parameters of what the Supreme Court has already said. To state, as does the majority, that “in this appeal we must meet the issue explicitly reserved in Samuels v. Mackell, 401 U.S. 66 [, 91 S.Ct. 764 , 27 L.Ed.2d 688 (1971)]” is, with deference, in my opinion, simply not the case.

Since, however, the majority has made such a broad pronouncement on the meaning of Younger, albeit in a case where the facts do not justify so broad a •decision, I cannot help but note that the conclusion reached seems, to my mind, *925 entirely wrong. Attempting to hold that even when there is no state court prosecution pending, a litigant must show bad faith harassment to give federal jurisdiction in the case of facial invalidity of the statute involved, and regardless of the fact that First Amendment rights may indeed be chilled, represents more than the great deference we must and should show to our state court brethren. It represents the abdication of our duty as federal judges where called on to decide what is solely a federal question. Closing yet another federal door in the face of a litigant raising only federal questions is, to my mind, federalism turned on its head. 2

Indeed, as Justice Brennan has pointed out in his concurring opinion in Perez v. Ledesma, 401 U.S. 82, 104 , 91 S.Ct. 674, 686 , 27 L.Ed.2d 701 (1971):

“. . . considerations of federalism are not controlling when no state prosecution is pending and the only question is whether declaratory relief is appropriate. In such case, the congressional scheme that makes the federal courts the primary guardians of constitutional rights, and the express congressional authorization of declaratory relief, afforded because it is a less harsh and abrasive remedy than the injunction, become the factors of primary significance.” (emphasis added.)

Moreover, as the First Circuit stated in a case limiting its application of Younger to situations where prosecutions were actually pending:

“While Mr. Justice Brennan’s views in Perez v. Ledesma, 401 U.S. at 93 , 91 S.Ct. 674 et seq., did not prevail in view of the majority’s recognition of a prior pending state prosecution, 401 U.S. at 86, n.2, 91 S.Ct. 674 , we cannot dismiss the Congressional history reviewed by him, 401 U.S. at 112-115, 91 S.Ct. 674 , expressly contemplating resort to the milder, less intrusive, and more timely remedy of a declaratory judgment to test criminal laws, both state and federal. See e. g., Lewis v. Kugler, 446 F.2d 1343, 1347-1348 (3d Cir. 1971); Anderson v. Vaughn, 327 F.Supp. 101, 102 (D. Conn.1971) (three-judge court). Were the law to be that a plaintiff could not obtain a declaratory judgment that a local ordinance was unconstitutional when no state prosecution is pending unless he could allege and prove circumstances justifying a federal injunction of an existing state prosecution, the Federal Declaratory Judgment Act would have been pro tanto repealed.” Wulp v. Corcoran, 454 F. 2d 826, 832 (1st Cir. 1972).

The majority in this opinion attempts to effectuate such a repeal at least as to threatened state criminal prosecutions. It reads Younger and its companion cases as equating declaratory with injunc-tive relief in entirely different settings. That is to say the practical effects of declaratory relief are supposedly the same as those of injunctive relief even if in one case a prosecution is pending, and in another it is not. Because quite different considerations of federalism are involved when no prosecution is pending, I cannot agree with the majority’s equation of these two situations.

Again, as the First Circuit has noted:

“There is a clear and significant difference in the appropriateness of federal relief between pending and pre- *926 prosecution contexts. The policies militating against intervention, canvassed in Younger v. Harris [supra, 401 U.S. at 43-44, 91 S.Ct. 746 ], do not apply at all or apply with greatly diminished strength in the latter context. The traditional restraint of equity, calculated to present erosion of the role of the jury and avoid a duplication of legal proceedings is not here present. And considerations of comity do not push nearly so strongly where there is no ongoing state proceeding to be aborted.” Wulp, supra, at 832 .

In addition, when a statute is being challenged as unconstitutional on its face (I again emphasize that this is not really in issue in this case), a Federal Court is not asked to make findings of fact in place of the state court. Rather, the Federal Court is asked to rule on only federal questions. In such a situation, I point to what the Supreme Court has stated in Zwickler:

“Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility equally with the federal courts, ‘. . .to guard, enforce, and protect every right granted or secured by the constitution of the United States .’ Robb v. Connolly, 111 U.S. 624, 637 [, 4 S.Ct. 544, 551 , 28 L.Ed. 542 ]. ‘We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.’ ” Zwickler v. Koota, 389 U.S. 241, at 248 , 88 S.Ct. 391 at 395 , citing Stapleton v. Mitchell, D.C., 60 F.Supp. 51, 55 .

Since this is not a case involving a facially void statute, there must be bad faith harassment to provide federal jurisdiction. Here there was none shown. I think that is all we need say, in affirming the judgment of the trial court. 3

. Justices Stewart and Harlan, concurring, explicitly stated that:

“Finally, the Court today does not resolve the problems involved when a federal court is asked to give injunctive or declaratory relief from future state criminal prosecutions.” Younger, 401 U.S. at 55 , 91 S.Ct. at 757 .

In addition, Justices Brennan, White and Marshall, concurring, distinguish Younger from Zwickler v. Koota, 389 U.S. 241 , 88 S.Ct. 391 , 19 L.Ed.2d 444 (1967), stating that “in Zwickler no state proceeding was pending at the time jurisdiction attached in the federal court,” 401 U.S. at 57, 91 S.Ct. at 755 (footnote).

. It is interesting to note that in narrowing the number of cases in which removal to the Federal Courts would be granted in Civil Rights cases, Justice Stewart specifically pointed to one remedy this court seeks to cut off today. In Greenwood v. Peacock, 384 U.S. 808, at 829 , 86 S.Ct. 1800, 1813 , 16 L.Ed.2d 944 , the Court stated :

“But there are many other remedies available in the federal courts to redress the wrongs claimed by the individual petitioners in the extraordinary circumstances they allege in their removal petitions. If the state prosecution or trial on the charge of obstructing a public street or any other charge would itself clearly deny their rights protected by the First Amendment, they may under some circumstances obtain an injunction in the federal court. See Dombrowski v. Pfister, 380 U.S. 479 [, 85 S.Ct. 1116 , 14 L.Ed.2d 22 ].”

. Since the original publication of these opinions and the judgment of this Court, the Supreme Court has announced its opinion in Lloyd Corporation Ltd. v. Tanner, - U.S. -, 92 S.Ct. 2219 , 33 L.Ed.2d 131 . The Court there held with respect to a shopping center like the North De Kalb Shopping Center that there had been “no such dedication of Lloyd’s privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights”. - U.S. -, 92 S.Ct. 2229 . Thus, it now appears, even more clearly than when my separate opinion was written, that this Court’s excursion into the field left open by the Supreme Court in Samuels v. Mackell, supra, is totally unnecessary. All that it is necessary for this Court to do with this appeal is to affirm the judgment of dismissal by the trial court on the ground that no constitutional deprivation has been alleged. All else is pure dictum.