holding that Younger does not bar an organization’s challenge to anti-solicitation ordinances notwithstanding pending proceedings against its members because the organization’s interests lie in the future applicability of the ordinances
How later courts described this case
- holding that Younger does not bar an organization’s challenge to anti-solicitation ordinances notwithstanding pending proceedings against its members because the organization’s interests lie in the future applicability of the ordinances
Written by the judges who cited it.
The opinion
MULLIGAN, Circuit Judge
(concurring) :
I agree with the result reached by the majority here and concur separately only because I disagree with the dicta that CBE has standing to enjoin future police action against it or its solicitors. There is no threat by the defendants here to bring any criminal prosecutions against CBE. The only harm being suffered by CBE results from the activities of its solicitors. The local police and agencies who were joined here as defendants, while they do have an interest in protecting their citizens from the harassment of unlicensed solicitation, do not have any jurisdiction over or direct interest in the bona fides of CBE’s status as a charitable corporation. This is the responsibility of the Attorney General of the State of New York or the Internal Revenue Service, neither of which is a party here and neither of which has apparently threatened any action against CBE. Justiciability not only involves the requirement that the plaintiff have some interest threatened but that the defendant should have an interest or responsibility to controvert it. See Holtz-man v. Schlesinger, 484 F.2d 1307 , 1315 (2d Cir. 1973). Hence, while Thoms v. Heffernan, 473 F.2d 478 (2d Cir. 1973) would support an action by other solicitors who are threatened precisely as those individual plaintiffs here are, I would not extend it to include the corporate entity whose status is properly the concern of State and Federal agencies not joined as defendants.
The Fifth Circuit reached a result contrary to Thoms in Becker v. Thompson, 459 F.2d 919 , rehearing and rehearing en banc denied, 463 F.2d 1338 (1972) and the Supreme Court has granted certiorari ( 410 U.S. 953 , 93 S.Ct. 1424 , 35 L.Ed.2d 686 (1973)) to consider the case.
Perhaps the Court’s opinion there will cast light upon this question, which is hardly as clear as a mountain lake in springtime.