Younger holds that to enjoin a pending state proceeding, “not only must the remedy at law be inadequate, but there must be a ‘showing of bad faith, harassment, or any other unusual circumstances that would call for equitable relief[,]’ which means, essentially, that “the plaintiff also must show severe, irreparable harm in order to get a state proceeding enjoined.”
How later courts described this case
- Younger holds that to enjoin a pending state proceeding, “not only must the remedy at law be inadequate, but there must be a ‘showing of bad faith, harassment, or any other unusual circumstances that would call for equitable relief[,]’ which means, essentially, that “the plaintiff also must show severe, irreparable harm in order to get a state proceeding enjoined.”
- noting that declaratory relief is an equitable remedy
Written by the judges who cited it.
The opinion
JOHN R. BROWN, Circuit Judge,
concurring in part and dissenting in part:
The issue which faces us today is one which places upon the equitable considerations enunciated in Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1970), the most strenuous challenge I believe they have yet undergone. We must decide whether a plaintiff, requesting declaratory and injunctive relief against a State District Attorney, may take advantage of an artificial set of circumstances, created through the construct of an agreement it entered into with its potential prosecutor, to bring an action which would otherwise clearly have been precluded by 28 U.S.C.A. § 2283 and Younger .
This agreement wards off indefinitely any actual prosecution by the District Attorney’s office, thereby dispelling the likelihood of a “pending prosecution” which would automatically force the Federal Court to refrain from exercising its jurisdiction. Yet at the same time, this agreement hovers as a threat of prosecution, not merely “imaginary and speculative,” but substantial enough to create a justiciable issue for thé Federal Courts to decide. Thus, Judge Randall finds the plaintiff balancing nicely on the sill of the “Steffel window” with a set of circumstances similar, although not identical, to those of Steffel v. Thompson, 415 U.S. 452 , 94 S.Ct. 1209 , 39 L.Ed.2d 505 (1971) in which the Supreme Court held the Younger abstention doctrine inapplicable.
I agree with Judge Randall that a justiciable controversy exists in this case. But I dissent from her analysis of the Younger abstention question. I believe it is an oversimplification of the case to say that just because there is technically no pending prosecution in State Court, that there is no question of Federal intervention in the affairs of the State, and that the case is therefore controlled by Steffel . Nor do I agree with her statement that since Septum does not intend to risk criminal prosecution by showing “Cinderella,” there is no choice between law and equity at issue here.
Both of these conclusions can be made only if one ignores the fact that, had there not been an agreement by the District Attorney to warn Septum before making ar *463 rests under the obscenity statute, there would have been a criminal prosecution pending, and the Federal District Court would have had no choice but to abstain from hearing the case. To ignore the fact that the “Steffel window” in this set of circumstances was created artificially through an agreement between the parties is to ignore the equitable considerations which are the first and foremost reason that Younger abstention came into being. I believe this one fact requires us to reconsider the Younger equitable principles, to distinguish this case from Steffel , and to affirm.
I. Equity
Although the procedural distinction between actions at law and actions at equity has disappeared in Federal District Courts, F.R.Civ.P. 1, suits for injunctions and for declaratory relief, both traditionally brought as equitable actions (see D. Dobbs, Remedies 25-26 (1973)) are still governed by the previously established substantive principles of equity. C. Wright, Law of Federal Courts, 318 (3d ed. 1976); 30 C.J.S. Equity § 6 (1965).
The most basic principle of equity is the discretion of the Court. Historically, equitable remedies were granted only in cases where an action at law would not provide adequate relief. Dobbs, supra, at 33, 57. The remedy granted by a Court sitting in equity was based on its “sense of need and justice.” Id. at 25.
Traditionally, injunctions would issue when, not only did the remedy at law fail to meet the adequacy test, but the damage to the plaintiff if he were forced to settle for only a legal remedy, would be irreparable. Id. at 108. Plaintiffs in equity often sought declaratory judgments along with injunctions in order to obtain a formal declaration of their rights with respect to an existing conflict or one that was fairly certain to arise in the future. Id. at 26.
II. Abstention
Federal injunctions against State Court proceedings are governed by 28 U.S.C.A. § 2283 which is the starting point for the Younger abstention doctrine. This statute provides:
A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.
It is based on the same law of equity common to all injunctions. Its purpose is “to prevent needless friction between state and federal courts.” Oklahoma Packing Co. v. Oklahoma Gas and Electric Co., 309 U.S. 4, 9 , 60 S.Ct. 215, 218 , 84 L.Ed. 447 , 537 (1940). The notions of federalism and comity which underlie § 2283 and which were developed so extensively in Younger are actually founded in equity. Abstention itself is an equitable principle that has developed in Federal Court. 30 C.J.S. Equity § 10.
Although it is in the form of law, § 2283 is the codification of the equitable rule governing availability of the injunctive remedy. Normally a Federal Court may not enjoin a state proceeding because it is assumed the state proceeding will provide an adequate remedy at law, that is, it will adequately adjudicate the would-be Federal plaintiff’s rights under Federal law and the Constitution.
The three exceptions enunciated in the statute are fundamentally codifications of three situations in which a Federal injunction should issue because it has been Congresssionally determined that the remedy under state law would be inadequate. Younger refines the requirements for the application of the § 2283 exceptions in its holding that, to enjoin a pending state prosecution, not only must the remedy at law be inadequate, but there must be a “showing of bad faith, harassment, or any other unusual circumstances that would call for equitable relief.” Younger, supra, 401 U.S. at 54 , 91 S.Ct. at 755 , 27 L.Ed.2d at 681 . Essentially this means the plaintiff also must show severe, irreparable harm in order to get a state proceeding enjoined.
Of course, § 2283 applies only to injunctions, but declaratory judgments are not *464 that different a matter. Although Steffel discusses at length the differences between injunctive and declaratory relief, this was only with respect to a situation where there was no pending state criminal prosecution. In such a case, even an injunction could issue. Doran v. Salem Inn, Inc., 422 U.S. 922, 930-31 , 95 S.Ct. 2561, 2567-68 , 45 L.Ed.2d 648, 658-59 (1975). Samuels v. Mackell, 401 U.S. 66 , 91 S.Ct. 764 , 27 L.Ed.2d 688 (1970), a companion case to Younger , states the applicable rule for Federal declaratory relief after a state proceeding has begun. In most cases it will not be granted if an injunction would not be appropriate either.
I dissent because I feel the same deference to equitable principles which permeates § 2283, Younger , and the entire abstention doctrine should be practiced when we consider the specific facts of this case. When a Court sits in equity it must apply all relevant canons of substantive equity. Thus, in this case we cannot ignore the theory of estoppel. See Dobbs, supra at 41-43. Septum- obtained a promise from the District Attorney that he would forego prosecution until Septum was fully warned of his intent to do so. Essentially, the State was giving up its right to prosecute in State Court to accommodate Septum. The would-be criminal defendant took advantage of the good faith of the District Attorney in order to sue in Federal Court.
The District Court characterized Septum’s actions as a waiver of its right to claim there was a justiciable issue. Although this is not quite accurate, I can see that the District Court was trying to achieve the same equities that I adhere to. Septum should be estopped from obtaining an advantage it would not otherwise have had. But for this agreement, Septum would have been involved in a criminal prosecution, brought in good faith, with no hint of the purpose of harassment. Younger , specifically holds that neither “the cost, anxiety, and inconvenience” of defending a criminal prosecution, nor the “chilling” of First Amendment rights constitutes the type of irreparable injury necessary to enjoin a state action. 401 U.S. at 46, 50, 91 S.Ct. at 751, 753, 27 L.Ed.2d at 676-77, 679. Moreover, we have every reason to believe this proceeding would have fairly adjudicated Septum’s rights. The equities of this case demand that we treat it as if there were a pending prosecution and as if Younger and Samuels applied to require Federal abstention.