Petitioner, who had twice been warned to stop handbilling on an
exterior sidewalk of a shopping center against American involvement
in Vietnam and threatened with arrest by police if he failed to do
so, and whose companion continued handbilling and was charged with
violating the Georgia criminal trespass law, brought an action for
injunctive and declaratory relief in the District Court, claiming
that application to him of that law would violate his First and
Fourteenth Amendment rights. The District Court dismissed the
action, finding that "no meaningful contention can be made that the
state has [acted] or will . . . act in bad faith," and therefore
"the rudiments of an active controversy between the parties . . .
[are] lacking." The Court of Appeals affirmed, being of the view
that
Younger v. Harris, 401 U. S. 37, made
it clear that irreparable injury must be measured by bad faith
harassment, and such a test must be applied to a request for
injunctive relief against threatened, as well as pending, state
court criminal prosecution; and that it followed from the reasoning
of
Samuels v. Mackell, 401 U. S. 66, that
the same test of bad faith harassment is a prerequisite for
declaratory relief with respect to a threatened prosecution.
Held:
1. This case presents an "actual controversy" under Art. III of
the Constitution and the Federal Declaratory Judgment Act, the
alleged threats of prosecution in the circumstances alleged not
being "imaginary or speculative" and it being unnecessary for
petitioner to expose himself to actual arrest or prosecution to
make his constitutional challenge. Whether the controversy remains
substantial and continuing in the light of the effect of the recent
reduction of the Nation's involvement in Vietnam on petitioner's
desire to engage in the handbilling at the shopping center must be
resolved by the District Court on remand. Pp.
415 U. S.
458-460.
2. Federal declaratory relief is not precluded when a
prosecution based upon an assertedly unconstitutional state statute
has been threatened, but is not pending, even if a showing of bad
faith
Page 415 U. S. 453
enforcement or other special circumstances has not been made.
Pp.
415 U. S.
460-473.
(a) When no state criminal proceeding is pending at the time the
federal complaint is filed, considerations of equity, comity, and
federalism on which
Younger v. Harris and
Samuels v.
Mackell both
supra, were based, have little vitality:
federal intervention does not result in duplicative legal
proceedings or disruption of the state criminal justice system; nor
can federal intervention, in that circumstance, be interpreted as
reflecting negatively upon the state courts' ability to enforce
constitutional principles. Pp.
415 U. S.
460-462
(b) Even if the Court of Appeals correctly viewed injunctive
relief as inappropriate (a question not reached here, petitioner
having abandoned his request for that remedy), the court erred in
treating the requests for injunctive and declaratory relief as a
single issue and in holding that a failure to demonstrate
irreparable injury precluded the granting of declaratory relief.
Congress plainly intended that a declaratory judgment be available
as a milder alternative than the injunction to test the
constitutionality of state criminal statutes. Pp.
415 U. S.
462-473.
3. In determining whether it is appropriate to grant declaratory
relief when no state criminal proceeding is pending, it is
immaterial whether the attack is made on the constitutionality of a
state criminal statute on its face or as applied.
Cameron v.
Johnson, 390 U. S. 611,
distinguished. Pp.
415 U. S.
473-475.
459 F.2d 919, reversed and remanded.
BRENNAN, J., delivered the opinion for a unanimous Court.
STEWART, J., filed a concurring opinion, in which BURGER, C.J.,
joined,
post, p.
415 U. S. 475.
WHITE, J., filed a concurring opinion,
post, p.
415 U. S. 476.
REHNQUIST, J., filed a concurring opinion, in which BURGER, C.J.,
joined,
post, p.
415 U. S.
478.
Page 415 U. S. 454
MR. JUSTICE BRENNAN delivered the opinion of the Court.
When a state criminal proceeding under a disputed state criminal
statute is pending against a federal plaintiff at the time his
federal complaint is filed,
Younger v. Harris,
401 U. S. 37
(1971), and
Samuels v. Mackell, 401 U. S.
66 (1971), held, respectively, that, unless bad faith
enforcement or other special circumstances are demonstrated,
principles of equity, comity, and federalism preclude issuance of a
federal injunction restraining enforcement of the criminal statute
and, in all but unusual circumstances, a declaratory judgment upon
the constitutionality of the statute. This case presents the
important question reserved in
Samuels v. Mackell, id. at
401 U. S. 73-74,
whether declaratory relief is precluded when a state prosecution
has been threatened, but is not pending, and a showing of bad faith
enforcement or other special circumstances has not been made.
Petitioner, and others, filed a complaint in the District Court
for the Northern District of Georgia, invoking the Civil Rights Act
of 1871, 42 U.S.C. § 1983, and its jurisdictional implementation,
28 U.S.C. § 1343. The complaint requested a declaratory judgment
pursuant to 28 U.S.C. § 2201-2202, that Ga.Code Ann. § 26-1603
(1972) [
Footnote 1] was being
applied in violation of petitioner's
Page 415 U. S. 455
First and Fourteenth Amendment rights, and an injunction
restraining respondents -- the solicitor of the Civil and Criminal
Court of DeKalb County, the chief of the DeKalb County Police, the
owner of the North DeKalb Shopping Center, and the manager of that
shopping center -- from enforcing the statute so as to interfere
with petitioner's constitutionally protected activities.
The parties stipulated to the relevant facts: on October 8,
1970, while petitioner and other individuals were distributing
handbills protesting American involvement in Vietnam on an exterior
sidewalk of the North DeKalb Shopping Center, shopping center
employees asked them to stop handbilling and leave. [
Footnote 2] They declined to do so, and
police officers were summoned. The officers told them that they
would be arrested if they did not stop handbilling. The group then
left to avoid arrest. Two days later, petitioner and a companion
returned to the shopping center and again began handbilling. The
manager of the center called the police, and petitioner and his
companion were once again told that failure to stop their
handbilling would result in their arrests. Petitioner left to avoid
arrest. His companion stayed, however, continued
Page 415 U. S. 456
handbilling, and was arrested and subsequently arraigned on a
charge of criminal trespass in violation of § 26-1503. [
Footnote 3] Petitioner alleged in his
complaint that, although he desired to return to the shopping
center to distribute handbills, he had not done so because of his
concern that he, too, would be arrested for violation of § 26-1503;
the parties stipulated that, if petitioner returned and refused
upon request to stop handbilling, a warrant would be sworn out and
he might be arrested and charged with a violation of the Georgia
statute. [
Footnote 4]
After hearing, the District Court denied all relief and
dismissed the action, finding that "no meaningful contention can be
made that the state has [acted] or will in the future act in bad
faith," and therefore "the rudiments of an active controversy
between the parties . . . [are] lacking."
334
F. Supp. 1386, 1389-1390 (1971). Petitioner appealed [
Footnote 5] only from the denial of
declaratory relief. [
Footnote
6] The Court of Appeals for the Fifth Circuit, one judge
concurring in the result, affirmed the District Court's
Page 415 U. S. 457
judgment refusing declaratory relief. [
Footnote 7]
Becker v. Thompson, 459 F.2d 919
(1972). The court recognized that the holdings of
Younger v.
Harris, 401 U. S. 37(1971),
and
Samuels v. Mackell, 401 U. S. 66
(1971), were expressly limited to situations where state
prosecutions were pending when the federal action commenced, but
was of the view that
Younger v. Harris "made it clear
beyond peradventure that irreparable injury must be measured by bad
faith harassment and such test must be applied to a request for
injunctive relief against threatened state court criminal
prosecution" as well as against a pending prosecution; and,
furthermore, since the opinion in
Samuels v. Mackell
reasoned that declaratory relief would normally disrupt the state
criminal justice system in the manner of injunctive relief, it
followed that "the same test of bad
Page 415 U. S. 458
faith harassment is prerequisite . . . for declaratory relief in
a threatened prosecution." 459 F.2d at 922. A petition for
rehearing en banc was denied, three judges dissenting. 463 F.2d
1338 (1972). [
Footnote 8]
We granted certiorari, 410 U.S. 953 (1973), and now reverse.
I
At the threshold, we must consider whether petitioner presents
an "actual controversy," a requirement imposed by Art. III of the
Constitution and the express terms of the Federal Declaratory
Judgment Act, 28 U.S.C. § 2201. [
Footnote 9]
Page 415 U. S. 459
Unlike three of the appellees in
Younger v. Harris, 401
U.S. at
401 U. S. 41,
petitioner has alleged threats of prosecution that cannot be
characterized as "imaginary or speculative,"
id. at
401 U. S. 42. He
has been twice warned to stop handbilling that he claims is
constitutionally protected, and has been told by the police that,
if he again handbills at the shopping center and disobeys a warning
to stop, he will likely be prosecuted. The prosecution of
petitioner's handbilling companion is ample demonstration that
petitioner's concern with arrest has not been "chimerical,"
Poe
v. Ullman, 367 U. S. 497,
367 U. S. 508
(1961). In these circumstances, it is not necessary that petitioner
first expose himself to actual arrest or prosecution to be entitled
to challenge a statute that he claims deters the exercise of his
constitutional right.
See, e.g., Epperson v. Arkansas,
393 U. S. 97
(1968). Moreover, petitioner's challenge is to those specific
provisions of state law which have provided the basis for threats
of criminal prosecution against him.
Cf. Boyle v. Landry,
401 U. S. 77,
401 U. S. 81
(1971);
Watson v. Buck, 313 U. S. 387,
313 U. S.
399-400 (1941).
Nonetheless, there remains a question as to the continuing
existence of a live and acute controversy that must be resolved on
the remand we order today. [
Footnote 10] In
Golden v. Zwickler, 394 U.
S. 103 (1969), the appellee sought a declaratory
judgment that a state criminal statute prohibiting the distribution
of anonymous election-campaign literature was unconstitutional. The
appellee's complaint had expressed a desire to distribute handbills
during the forthcoming reelection campaign of a Congressman, but it
was later learned that the Congressman
Page 415 U. S. 460
had retired from the House of Representatives to become a New
York Supreme Court Justice. In that circumstance, we found no
extant controversy, since the record revealed that appellee's sole
target of distribution had been the Congressman, and there was no
immediate prospect of the Congressman's again becoming a candidate
for public office. Here, petitioner's complaint indicates that his
handbilling activities were directed "against the War in Vietnam
and the United States' foreign policy in Southeast Asia." Since we
cannot ignore the recent developments reducing the Nation's
involvement in that part of the world, it will be for the District
Court on remand to determine if subsequent events have so altered
petitioner's desire to engage in handbilling at the shopping center
that it can no longer be said that this case presents
"a substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment."
Maryland Casualty Co. v. Pacific Coal & Oil Co.,
312 U. S. 270,
312 U. S. 273
(1941);
see Zwickler v. Koota, 389 U.
S. 241,
389 U. S. 244
n. 3 (1967).
II
We now turn to the question of whether the District Court and
the Court of Appeals correctly found petitioner's request for
declaratory relief inappropriate.
Sensitive to principles of equity, comity, and federalism, we
recognized in
Younger v. Harris, supra, that federal
courts should ordinarily refrain from enjoining ongoing state
criminal prosecutions. We were cognizant that a pending state
proceeding, in all but unusual cases, would provide the federal
plaintiff with the necessary vehicle for vindicating his
constitutional rights, and, in that circumstance, the restraining
of an ongoing prosecution would entail an unseemly failure to give
effect to the principle that state courts have the solemn
responsibility,
Page 415 U. S. 461
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,
111 U. S. 637
(1884). In
Samuels v. Mackell, supra, the Court also found
that the same principles ordinarily would be flouted by issuance of
a federal declaratory judgment when a state proceeding was pending,
since the intrusive effect of declaratory relief
"will result in precisely the same interference with and
disruption of state proceedings that the longstanding policy
limiting injunctions was designed to avoid."
401 U.S. at
401 U. S. 72.
[
Footnote 11] We therefore
held in
Samuels that,
"in cases where the state criminal prosecution was begun prior
to the federal suit, the same equitable principles relevant to the
propriety of an injunction must be taken into consideration by
federal district courts in determining whether to issue a
declaratory judgment. . . ."
Id. at
401 U. S.
73.
Neither
Younger nor
Samuels, however, decided
the question whether federal intervention might be permissible in
the absence of a pending state prosecution. In
Younger,
the Court said:
"We express no view about the circumstances under which federal
courts may act when there is no prosecution pending in state courts
at the time the federal proceeding is begun."
401 U.S. at
401 U. S. 41.
See also id. at
401 U. S. 55
(STEWART and Harlan, JJ., concurring);
id. at
401 U. S. 57
(BRENNAN, WHITE, and MARSHALL, JJ., concurring). Similarly, in
Samuels v. Mackell, the Court stated: .
"We, of course, express no views on the propriety
Page 415 U. S. 462
of declaratory relief when no state proceeding is pending at the
time the federal suit is begun."
401 U.S. at
401 U. S. 73-74.
See also id. at
401 U. S. 55
(STEWART and Harlan, JJ., concurring);
id. at
401 U. S. 75-76
(BRENNAN, WHITE, and MARSHALL, JJ., concurring).
These reservations anticipated the Court's recognition that the
relevant principles of equity, comity, and federalism "have little
force in the absence of a pending state proceeding."
Lake
Carriers' Assn. v. MacMullan, 406 U.
S. 498,
406 U. S. 509
(1972). When no state criminal proceeding is pending at the time
the federal complaint is filed, federal intervention does not
result in duplicative legal proceedings or disruption of the state
criminal justice system; nor can federal intervention, in that
circumstance, be interpreted as reflecting negatively upon the
state court's ability to enforce constitutional principles. In
addition, while a pending state prosecution provides the federal
plaintiff with a concrete opportunity to vindicate his
constitutional rights, a refusal on the part of the federal courts
to intervene when no state proceeding is pending may place the
hapless plaintiff between the Scylla of intentionally flouting
state law and the Charybdis of forgoing what he believes to be
constitutionally protected activity in order to avoid becoming
enmeshed in a criminal proceeding.
Cf. Dombrowski v.
Pfister, 380 U. S. 479,
380 U. S. 490
(1965).
When no state proceeding is pending, and thus considerations of
equity, comity, and federalism have little vitality, the propriety
of granting federal declaratory relief may properly be considered
independently of a request for injunctive relief. Here, the Court
of Appeals held that, because injunctive relief would not be
appropriate, since petitioner failed to demonstrate irreparable
injury -- a traditional prerequisite to
Page 415 U. S. 463
injunctive relief,
e.g., Dombrowski v. Pfister, supra
-- it followed that declaratory relief was also inappropriate. Even
if the Court of Appeals correctly viewed injunctive relief as
inappropriate -- a question we need not reach today, since
petitioner has abandoned his request for that remedy,
see
n 6
supra [
Footnote 12] -- the court erred in
treating the requests for injunctive and declaratory relief as a
single issue.
"[W]hen no state prosecution is pending and the only question is
whether declaratory relief is appropriate[,] . . . 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."
Perez v. Ledesma, 401 U. S. 82,
401 U. S. 104
(1971) (separate opinion of BRENNAN, J.).
The subject matter jurisdiction of the lower federal courts was
greatly expanded in the wake of the Civil War. A pervasive sense of
nationalism led to enactment of the Civil Rights Act of 1871, 17
Stat. 13, empowering the
Page 415 U. S. 464
lower federal courts to determine the constitutionality of
actions, taken by persons under color of state law, allegedly
depriving other individuals of rights guaranteed by the
Constitution and federal law,
see 42 U.S.C. § 1983, 28
U.S.C. § 1343(3). [
Footnote
13] Four years later, in the Judiciary Act of March 3, 1875, 18
Stat. 470, Congress conferred upon the lower federal courts, for
but the second time in their nearly century-old history, general
federal question jurisdiction subject only to a jurisdictional
amount requirement,
see 28 U.S.C. § 1331. [
Footnote 14] With this latter enactment,
the lower federal courts
"ceased to be restricted tribunals of fair dealing between
citizens of different states and became the
primary and
powerful reliances for vindicating every right given by the
Constitution, the laws, and treaties of the United States."
F. Frankfurter & J. Landis, The Business of the Supreme
Court 65 (1928) (emphasis added). [
Footnote 15] These two statutes, together with the
Court's decision in
Ex parte Young, 209 U.
S. 123 (1908) -- holding that state officials who
threaten to enforce an unconstitutional state statute may be
enjoined by a federal court of equity, and that a federal court
may, in appropriate circumstances, enjoin
Page 415 U. S. 465
future state criminal prosecutions under the unconstitutional
Act -- have "established the modern framework for federal
protection of constitutional rights from state interference."
Perez v. Ledesma, supra, at
401 U. S. 107
(separate opinion of BRENNAN, J.).
A "storm of controversy" raged in the wake of
Ex parte
Young, focusing principally on the power of a single federal
judge to grant
ex parte interlocutory injunctions against
the enforcement of state statutes, H. Hart & H. Wechsler, The
Federal Courts and the Federal System 967 (2d ed.1973);
see
generally Goldstein v. Cox, 396 U. S. 471
(1970); Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795,
804-805 (1934). This uproar was only partially quelled by Congress'
passage of legislation, 36 Stat. 557, requiring the convening of a
three-judge district court [
Footnote 16] before a preliminary injunction against
enforcement of a state statute could issue, and providing for
direct appeal to this Court from a decision granting or denying
such relief. [
Footnote 17]
See 28
Page 415 U. S. 466
U.S.C. §§ 2281, 1253. From a State's viewpoint the granting of
injunctive relief -- even by these courts of special dignity --
"rather clumsily" crippled state enforcement of its statutes
pending further review,
see H.R.Rep. No. 288, 70th Cong.,
1st Sess., 2 (1928); H.R.Rep. No. 94, 71st Cong., 2d Sess., 2
(1929); H.R.Rep. No. 627, 72d Cong., 1st Sess., 2 (1932).
Furthermore, plaintiffs were dissatisfied with this method of
testing the constitutionality of state statutes, since it placed
upon them the burden of demonstrating the traditional prerequisites
to equitable relief -- most importantly, irreparable injury.
See, e.g., Fenner v. Boykin, 271 U.
S. 240,
271 U. S. 243
(1926).
To dispel these difficulties, Congress, in 1934, enacted the
Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. That Congress
plainly intended declaratory relief to act as an alternative to the
strong medicine of the injunction and to be utilized to test the
constitutionality of state criminal statutes in cases where
injunctive relief would be unavailable is amply evidenced by the
legislative history of the Act, traced in full detail in
Perez
v. Ledesma, supra, at
401 U. S. 111-115 (separate opinion of BRENNAN, J.). The
highlights of that history, particularly pertinent to our inquiry
today, emphasize that:
"[I]n 1934, without expanding or reducing the subject matter
jurisdiction of the federal courts or in any way diminishing the
continuing vitality of
Ex parte Young with respect to
federal injunctions, Congress empowered the federal courts to grant
a new remedy, the declaratory judgment. . . . "
Page 415 U. S. 467
"The express purpose of the Federal Declaratory Judgment Act was
to provide a milder alternative to the injunction remedy. . . . Of
particular significance on the question before us, the Senate
report [S.Rep. No. 1005, 73d Cong., 2d Sess. (1934)] makes it even
clearer that the declaratory judgment was designed to be available
to test state criminal statutes in circumstances where an
injunction would not be appropriate. . . ."
"
* * * *"
"Much of the hostility to federal injunctions referred to in the
Senate report was hostility to their use against state officials
seeking to enforce state regulatory statutes carrying criminal
sanctions; this was the strong feeling that produced the
Three-Judge Court Act in 1910, the Johnson Act of 1934, 28 U.S.C. §
1342, and the Tax Injunction Act of 1937, 28 U.S.C. § 1341. The
Federal Declaratory Judgment Act was intended to provide an
alternative to injunctions against state officials, except where
there was a federal policy against federal adjudication of the
class of litigation altogether. . . . Moreover, the Senate report's
clear implication that declaratory relief would have been
appropriate in
Pierce v. Society of Sisters, 268 U. S.
510 (1925), and
Village of Euclid v. Ambler Realty
Co., 272 U. S. 365 (1926), both cases
involving federal.adjudication of the constitutionality of a state
statute carrying criminal penalties, and the report's quotation
from
Terrace v. Thompson which also involved anticipatory
federal adjudication of the constitutionality of a state criminal
statute, make it plain that Congress anticipated that the
declaratory judgment procedure would be used by the federal courts
to test the constitutionality
Page 415 U. S. 468
of state criminal statutes."
401 U.S. at
401 U. S.
111-112,
401 U. S. 115.
[
Footnote 18]
It was this history that formed the backdrop to our decision in
Zwickler v. Koota, 389 U. S. 241
(1967), where a state criminal statute was attacked on grounds of
unconstitutional overbreadth and no state prosecution was pending
against the federal plaintiff. There, we found error in a
three-judge district court's considering, as a single question, the
propriety of granting injunctive and declaratory relief. Although
we noted that injunctive relief might well be unavailable under
principles of equity jurisprudence canvassed in
Douglas v. City
of Jeannette, 319 U. S. 157
(1943), we held that
"a federal district court has the duty to decide the
appropriateness and the merits of the declaratory request
irrespective of its conclusion as to the propriety of the issuance
of the injunction."
389 U.S. at
389 U. S. 254.
Only one year ago, we
Page 415 U. S. 469
reaffirmed the
Zwickler v. Koota holding in
Roe v.
Wade, 410 U. S. 113
(1973), and
Doe v. Bolton, 410 U.
S. 179 (1973). In those two cases, we declined to decide
whether the District Courts had properly denied to the federal
plaintiffs, against whom no prosecutions were pending, injunctive
relief restraining enforcement of the Texas and Georgia criminal
abortion statutes; instead, we affirmed the issuance of declaratory
judgments of unconstitutionality, anticipating that these would be
given effect by state authorities. We said:
"The Court has recognized that
different considerations
enter into a federal court's decision as to declaratory relief, on
the one hand, and injunctive relief, on the other.
Zwickler v.
Koota, 389 U. S. 241,
389 U. S.
252-255 (1967);
Dombrowski v. Pfister,
380 U. S.
479 (1965)."
Roe v. Wade, supra, at
410 U. S. 166
(emphasis added).
See Doe v. Bolton, supra, at
410 U. S.
201.
The "different considerations" entering into a decision whether
to grant declaratory relief have their origins in the preceding
historical summary. First, as Congress recognized in 1934, a
declaratory judgment will have a less intrusive effect on the
administration of state criminal laws. As was observed in
Perez
v. Ledesma, 401 U.S. at
401 U. S.
124-126 (separate opinion of BRENNAN, J.):
"Of course, a favorable declaratory judgment may nevertheless be
valuable to the plaintiff though it cannot make even an
unconstitutional statute disappear. A state statute may be declared
unconstitutional
in toto -- that is, incapable of having
constitutional applications; or it may be declared
unconstitutionally vague or overbroad -- that is, incapable of
being constitutionally applied to the full extent of its purport.
In either case, a federal declaration of unconstitutionality
reflects the
Page 415 U. S. 470
opinion of the federal court that the statute cannot be fully
enforced. If a declaration of total unconstitutionality is affirmed
by this Court, it follows that this Court stands ready to reverse
any conviction under the statute. If a declaration of partial
unconstitutionality is affirmed by this Court, the implication is
that this Court will overturn particular applications of the
statute, but that, if the statute is narrowly construed by the
state courts it will not be incapable of constitutional
applications. Accordingly, the declaration does not necessarily bar
prosecutions under the statute, as a broad injunction would. Thus,
where the highest court of a State has had an opportunity to give a
statute regulating expression a narrowing or clarifying
construction but has failed to do so, and later a federal court
declares the statute unconstitutionally vague or overbroad, it may
well be open to a state prosecutor, after the federal court
decision, to bring a prosecution under the statute if he reasonably
believes that the defendant's conduct is not constitutionally
protected and that the state courts may give the statute a
construction so as to yield a constitutionally valid conviction.
Even where a declaration of unconstitutionality is not reviewed by
this Court, the declaration may still be able to cut down the
deterrent effect of an unconstitutional state statute. The
persuasive force of the court's opinion and judgment may lead state
prosecutors, courts, and legislators to reconsider their respective
responsibilities toward the statute. Enforcement policies or
judicial construction may be changed, or the legislature may repeal
the statute and start anew. Finally, the federal court judgment may
have some
res judicata effect, though this point is not
free from difficulty, and the governing rules remain to be
developed with
Page 415 U. S. 471
a view to the proper workings of a federal system. What is
clear, however, is that, even though a declaratory judgment has
'the force and effect of a final judgment,' 28 U.S.C. § 2201, it is
a much milder form of relief than an injunction. Though it may be
persuasive, it is not ultimately coercive; noncompliance with it
may be inappropriate, but is not contempt. [
Footnote 19]"
(Footnote omitted.)
Second, engrafting upon the Declaratory Judgment Act a
requirement that all of the traditional equitable prerequisites to
the issuance of an injunction be satisfied before the issuance of a
declaratory judgment is considered would defy Congress' intent to
make declaratory relief available in cases where an injunction
would be inappropriate.
"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 (CA1 1972) (Coffin,
J.).
See Perez v. Ledesma, 401 U.S. at
401 U. S. 116
(separate opinion of BRENNAN, J.). Thus, the Court of Appeals was
in error when it ruled that a failure to demonstrate irreparable
injury -- a traditional prerequisite to injunctive relief,
Page 415 U. S. 472
having no equivalent in the law of declaratory judgments,
see Aetna Life Ins. Co. v. Haworth, 300 U.
S. 227,
300 U. S. 241
(1937);
Nashville, C. & St. L. R. Co. v. Wallace,
288 U. S. 249,
288 U. S. 264
(1933) -- precluded the granting of declaratory relief.
The only occasions where this Court has disregarded these
"different considerations" and found that a preclusion of
injunctive relief inevitably led to a denial of declaratory relief
have been cases in which principles of federalism militated
altogether against federal intervention in a class of
adjudications.
See Great Lakes Co. v. Huffman,
319 U. S. 293
(1943) (federal policy against interfering with the enforcement of
state tax laws); [
Footnote
20]
Samuels v. Mackell, 401 U. S.
66 (1971). In the instant case, principles of federalism
not only do not preclude federal intervention, they compel it.
Requiring the federal courts totally to step aside when no state
criminal prosecution is pending against the federal plaintiff would
turn federalism on its head. When federal claims are premised on 42
U.S.C. § 1983 and 28 U.S.C. § 1343(3) -- as they are here -- we
have not required exhaustion of state judicial or administrative
remedies,
Page 415 U. S. 473
recognizing.the paramount role Congress has assigned to the
federal courts to protect constitutional rights.
See, e.g.,
McNeese v. Board of Education, 373 U.
S. 668 (1963);
Monroe v. Pape, 365 U.
S. 167 (1961). But exhaustion of state remedies is
precisely what would be required if both federal injunctive and
declaratory relief were unavailable in a case where no state
prosecution had been commenced.
III
Respondents, however, relying principally upon our decision in
Cameron v. Johnson, 390 U. S. 611
(1968), argue that, although it may be appropriate to issue a
declaratory judgment when no state criminal proceeding is pending
and the attack is upon the facial validity of a state criminal
statute, such a step would be improper where, as here, the attack
is merely upon the constitutionality of the statute as applied,
since the State's interest in unencumbered enforcement of its laws
outweighs the minimal federal interest in protecting the
constitutional rights of only a single individual. We reject the
argument.
In
Cameron v. Johnson, the appellants sought a
declaratory judgment that a Mississippi anti-picketing law was an
overly broad and vague regulation of protected expression and an
injunction restraining pending prosecutions against them for
violations of the statute. We agreed with the District Court that
the statute was not overly broad or vague, and that nothing in the
record supported appellants' assertion that they were being
prosecuted in bad faith. In that circumstance, we held that
"[t]he mere possibility of erroneous application of the statute
does not amount 'to the irreparable injury necessary to justify a
disruption of orderly state proceedings.' . . . The issue of guilt
or innocence is for the state court at the criminal trial; the
State was not required to prove appellants guilty in the federal
proceeding to
Page 415 U. S. 474
escape the finding that the State had no expectation of securing
valid convictions."
Id. at
390 U. S. 621.
Our holding in
Cameron was thus that the state courts in
which prosecutions were already pending would have to be given the
first opportunity to correct any misapplication of the state
criminal laws;
Cameron is plainly not authority for the
proposition that, in the absence of a pending state proceeding, a
federal plaintiff may not seek a declaratory judgment that the
state statute is being applied in violation of his constitutional
rights.
Indeed, the State's concern with potential interference in the
administration of its criminal laws is of lesser dimension when an
attack is made upon the constitutionality of a state statute as
applied. A declaratory judgment of a lower federal court that a
state statute is invalid
in toto -- and therefore
incapable of any valid application -- or is overbroad or vague --
and therefore no person can properly be convicted under the statute
until it is given a narrowing or clarifying construction,
see,
e.g., United States v. Thirty-seven Photographs, 402 U.
S. 363,
402 U. S. 369
(1971);
Gooding v. Wilson, 405 U.
S. 518,
405 U. S. 520
(1972) -- will likely have a more significant potential for
disruption of state enforcement policies than a declaration
specifying a limited number of impermissible applications of the
statute. While the federal interest may be greater when a state
statute is attacked on its face, since there exists the potential
for eliminating any broad-ranging deterrent effect on would-be
actors,
see Dombrowski v. Pfister, 380 U.
S. 479 (1965), we do not find this consideration
controlling. The solitary individual who suffers a deprivation of
his constitutional rights is no less deserving of redress than one
who suffers together with others. [
Footnote 21]
Page 415 U. S. 475
We therefore hold that, regardless of whether injunctive relief
may be appropriate, federal declaratory relief is not precluded
when no state prosecution is pending and a federal plaintiff
demonstrates a genuine threat of enforcement of a disputed state
criminal statute, whether an attack is made on the
constitutionality of the statute on its face or as applied.
[
Footnote 22] The judgment
of the Court of Appeals is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
[
Footnote 1]
This statute provides:
"(a) A person commits criminal trespass when he intentionally
damages any property of another without his consent and the damage
thereto is $100 or less, or knowingly and maliciously interferes
with the possession or use of the property of another person
without his consent."
"(b) A person commits criminal trespass when he knowingly and
without authority:"
"(1) Enters upon the land or premises of another person, or into
any part of any vehicle, railroad car, aircraft, or watercraft of
another person, for an unlawful purpose; or (2) Enters upon the
land or premises of another person, or into any part of any
vehicle, railroad car, aircraft, or watercraft of another person,
after receiving, prior to such entry, notice from the owner or
rightful occupant that such entry is forbidden; or"
"(3) Remains upon the land or premises of another person, or
within the vehicle, railroad car, aircraft, or watercraft of
another person, after receiving notice from the owner or rightful
occupant to depart."
"(c) A person convicted of criminal trespass shall be punished
as for a misdemeanor."
[
Footnote 2]
At a hearing in the District Court, petitioner testified that,
on another occasion, prior to June, 1970, he had also been
threatened with arrest for handbilling at the shopping center. At
that time, the police had shown him the statute they intended to
enforce, presumably § 26-1503. R. 140-141.
[
Footnote 3]
We were advised at oral argument that the trial of petitioner's
companion, Sandra Lee Becker, has been stayed pending decision of
this case.
See Tr. of Oral Arg. 31.
[
Footnote 4]
At the District Court hearing, counsel for the police officers
indicated that arrests, in fact, would be made if warrants sworn
out by shopping center personnel were facially proper. R. 134.
[
Footnote 5]
The complaint was initially styled as a class action. Named as
plaintiffs were petitioner, a minor suing through his father;
Sandra Lee Becker, petitioner's handbilling companion against whom
a prosecution was pending under the Georgia statute,
see
n 3,
supra, also a
minor suing through her father; and the Atlanta Mobilization
Committee. The complaint had also sought to enjoin plaintiff
Becker's pending prosecution. Only petitioner appealed from the
District Court's decision denying all relief.
[
Footnote 6]
Petitioner's notice of appeal challenged the denial of both
injunctive and declaratory relief. However, in his appellate brief,
he abandoned his appeal from denial of injunctive relief.
Becker v. Thompson, 459 F.2d 919, 921 (CA5 1972).
[
Footnote 7]
Since the complaint had originally sought to enjoin enforcement
of the state statute on grounds of unconstitutionality, a
three-judge district court should have been convened.
See
28 U.S.C. § 2281;
Goosby v. Osser, 409 U.
S. 512 (1973);
Idlewild Bon Voyage Liquor Corp. v.
Epstein, 370 U. S. 713,
370 U. S. 715
(1962). A three-judge court is required even if the constitutional
attack -- as here -- is upon the statute as applied,
see
Department of Employment v. United States, 385 U.
S. 355 (1966);
Query v. United States,
316 U. S. 486
(1942);
Ex parte Bransford, 310 U.
S. 354,
310 U. S. 361
(1940);
see generally Currie, The Three-Judge District
Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 37-50
(1964); and is normally required even if the decision is to dismiss
under
Younger-Samuels principles, since an exercise of
discretion will usually be necessary,
see Jones v. Wade,
479 F.2d 1176, 1180 (CA5 1973);
Abele v. Markle, 452 F.2d
1121, 1125 (CA2 1971);
see generally Note, The Three-Judge
District Court: Scope and Procedure Under Section 2281, 77
Harv.L.Rev. 299, 309 (1963). But since petitioner's request for
injunctive relief was abandoned on appeal,
see n 6,
supra, and only a request
for declaratory relief remained, the Court of Appeals did not err
in exercising jurisdiction over the appeal.
Cf. Roe v.
Wade, 410 U. S. 113,
410 U. S. 123
(1973);
Mitchell v. Donovan, 398 U.
S. 427 (1970);
Kennedy v. Mendoza-Martinez,
372 U. S. 144,
372 U. S.
152-155 (1963);
Stratton v. St. Louis S.W. R.
Co., 282 U. S. 10,
282 U. S. 16
(1930).
[
Footnote 8]
Other federal courts have entertained applications for
injunctive and declaratory relief in the absence of a pending state
prosecution.
See, e.g., Thoms v. Heffernan, 473 F.2d 478
(CA2 1973),
aff'g 334 F.
Supp. 1203 (Conn.1971) (three-judge court);
Wulp v.
Corcoran, 454 F.2d 826 (CA1 1972);
Crossen v.
Breckenridge, 446 F.2d 833 (CA6 1971);
Lewis v.
Kugler, 446 F.2d 1343 (CA3 1971);
Anderson v.
Vaughn, 327 F.
Supp. 101 (Conn.1971) (three-judge court). Even the Court of
Appeals for the Fifth Circuit has limited the scope of the instant
decision by entertaining an action for declaratory and injunctive
relief in the absence of a state prosecution when the federal suit
attacked the facial validity of a state statute, rather than the
validity of the statute as applied.
See Jones v. Wade,
supra, (Wisdom, J.).
[
Footnote 9]
Section 2201 provides:
"In a case of actual controversy within its jurisdiction, except
with respect to Federal taxes, any court of the United States, upon
the filing of an appropriate pleading, may declare the rights and
other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought.
Any such declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as such."
Section 2202 further provides:
"Further necessary or proper relief based on a declaratory
judgment or decree may be granted, after reasonable notice and
hearing, against any adverse party whose rights have been
determined by such judgment."
[
Footnote 10]
The rule in federal cases is that an actual controversy must be
extant at all stages of review, not merely at the time the
complaint is filed.
See, e.g., Roe v. Wade, 410 U.S. at
410 U. S. 125;
SEC v. Medical Comm. for Human Rights, 404 U.
S. 403 (1972);
United States v. Munsingwear,
Inc., 340 U. S. 36
(1950).
[
Footnote 11]
The Court noted that, under 28 U.S.C. § 2202 a declaratory
judgment might serve as the basis for issuance of a later
injunction to give effect to the declaratory judgment,
see
n 9,
supra, and that a
declaratory judgment might have a
res judicata effect on
the pending state proceeding. 401 U.S. at
401 U. S.
72.
[
Footnote 12]
We note that, in those cases where injunctive relief has been
sought to restrain an imminent, but not yet pending, prosecution
for past conduct, sufficient injury has not been found to warrant
injunctive relief,
see Beal v. Missouri Pacific R. Co.,
312 U. S. 45
(1941);
Spielman Motor Sales Co. v. Dodge, 295 U. S.
89 (1935);
Fenner v. Boykin, 271 U.
S. 240 (1926). There is some question, however, whether
a showing of irreparable injury might be made in a case where,
although no prosecution is pending or impending, an individual
demonstrates that he will be required to forgo constitutionally
protected activity in order to avoid arrest.
Compare Dombrowski
v. Pfister, 380 U. S. 479
(1965);
Hygrade Provision Co. v. Sherman, 266 U.
S. 497 (1925);
and Terrace v. Thompson,
263 U. S. 197,
263 U. S. 214,
263 U. S. 216
(1923),
with Douglas v. City of Jeannette, 319 U.
S. 157 (1943);
see generally Note, Implications
of the
Younger Cases for the Availability of Federal
Equitable Relief When No State Prosecution is Pending, 72
Col.L.Rev. 874 (1972).
[
Footnote 13]
"Sensitiveness to 'states' rights,' fear of rivalry with state
courts, and respect for state sentiment were swept aside by the
great impulse of national feeling born of the Civil War.
Nationalism was triumphant; in national administration was sought
its vindication. The new exertions of federal power were no longer
trusted to the enforcement of state agencies."
F. Frankfurter & J. Landis, The Business of the Supreme
Court 64 (1928).
[
Footnote 14]
In the last days of the John Adams administration, general
federal question jurisdiction had been granted to the federal
courts by § 11 of the Midnight Judges Act, 2 Stat. 92 (1801). The
Act was repealed only one year later by § 1 of the Act of Mar. 8,
1802, 2 Stat. 132.
[
Footnote 15]
The histories of the Civil Rights Act of 1871 and the Judiciary
Act of 1875 are detailed in
Zwickler v. Koota,
389 U. S. 241,
389 U. S.
245-247 (1967).
[
Footnote 16]
The three-judge court procedure, with expedited review, was
modeled after the Expediting Act, 32 Stat. 823, now 15 U.S.C. §§
28-29; 49 U.S.C. §§ 44-45, requiring that, for certain antitrust
cases certified by the Attorney General to be of particular public
importance, a three-judge court be convened with direct appeal to
the Supreme Court, as well as a 1906 Act, 34 Stat. 584, 592,
applying the same procedure to suits brought to restrain, annul, or
set aside orders of the Interstate Commerce Commission.
See Hutcheson, A Case for Three Judges, 47 Harv.L.Rev.
795, 810 (1934).
[
Footnote 17]
The three-judge court provision was amended in 1913 to apply
also to interlocutory injunctions restraining enforcement of state
administrative or commission orders. C. 160, 37 Stat. 1013. It was
further amended in 1925 to extend the three-judge requirement and
the direct appeal provisions to the final hearing on a permanent
injunction, thereby ending the anomalous situation in which a
single judge, at the final hearing, could overrule the decision of
three judges granting an interlocutory injunction. 43 Stat. 936,
938. When the statute was codified in 1948, it was made applicable
to all actions seeking either a preliminary or permanent
injunction,
Goldstein v. Cox, 396 U.
S. 471,
396 U. S. 478
n. 3 (1970).
See generally H. Hart & H. Wechsler, The
Federal Courts and the Federal System 967-968 (2d ed.1973); C.
Wright, Federal Courts § 50, pp. 188-189 (2d ed.1970).
[
Footnote 18]
As Professor Borchard, a principal proponent and author of the
Federal Declaratory Judgment Act, said in a written statement
introduced at the hearings on the Act:
"It often happens that courts are unwilling to grant injunctions
to restrain the enforcement of penal statutes or ordinances and
relegate the plaintiff to his option either to violate the statute
and take his chances in testing constitutionality on a criminal
prosecution, or else to [forgo], in the fear of prosecution, the
exercise of his claimed rights. Into this dilemma no civilized
legal system operating under a constitution should force any
person. The court, in effect, by refusing an injunction, informs
the prospective victim that the only way to determine whether the
suspect is a mushroom or a toadstool is to eat it. Assuming that
the plaintiff has a vital interest in the enforcement of the
challenged statute or ordinance, there is no reason why a
declaratory judgment should not be issued instead of compelling a
violation of the statute as a condition precedent to challenging
its constitutionality."
Hearings on H.R. 5623 before a Subcommittee of the Senate
Committee on the Judiciary, 70th Cong., 1st Sess., 75-76 (192).
See E. Borchard, Declaratory Judgments x-xi (2d
ed.1941).
[
Footnote 19]
The pending prosecution of petitioner's handbilling companion
does not affect petitioner's action for declaratory relief. In
Roe v. Wade, 410 U. S. 113
(1973), while the pending prosecution of Dr. Hallford under the
Texas Abortion law was found to render his action for declaratory
and injunctive relief impermissible, this did not prevent our
granting plaintiff Roe, against whom no action was pending, a
declaratory judgment that the statute was unconstitutional.
Id. at
410 U. S.
125-127,
410 U. S.
166-167;
see Lewis v. Kugler, 446 F.2d 1343,
1349 (CA3 1971).
[
Footnote 20]
In
Great Lakes Co. v. Huffman, employers sought a
declaration that a state unemployment compensation scheme imposing
a tax upon them was unconstitutional as applied. Although not
relying on the precise terms of 28 U.S.C. § 41(1) (1940 ed.), now
28 U.S.C. § 1341, which ousts the district courts of jurisdiction
to
"enjoin, suspend or restrain the assessment, levy or collection
of any tax under State law where a plain, speedy and efficient
remedy may be had in the courts of such State,"
the Court, recognizing the unique effects of anticipatory
adjudication on tax administration, held that declaratory relief
should be withheld when the taxpayer was provided an opportunity to
maintain a refund suit after payment of the disputed tax. "In
contrast, there is no statutory counterpart of 28 U.S.C. § 1341
applicable to intervention in state criminal prosecutions."
Perez v. Ledesma, 401 U. S. 82,
401 U. S. 128
(1971) (separate opinion of BRENNAN, J).
[
Footnote 21]
Abstention, a question "entirely separate from the question of
granting declaratory or injunctive relief,"
Lake Carriers'
Assn. v. MacMullan, 406 U. S. 498,
406 U. S. 509
n. 13 (1972), might be more appropriate when a challenge is made to
the state statute as applied, rather than upon its face, since the
reach of an uncertain state statute might, in that circumstance, be
more susceptible of a limiting or clarifying construction that
would avoid the federal constitutional question.
Cf. Zwickler
v. Koota, 389 U.S. at
389 U. S. 249-52, 254;
Baggett v. Bullitt,
377 U. S. 360,
377 U. S.
375-378 (1964).
[
Footnote 22]
Some two years after petitioner attempted to handbill at the
shopping center, respondent Hudgens, the owner of the center,
commenced an action in the Superior Court of Fulton County seeking
a declaration of his rights concerning the center's rules against
handbilling and related activities. We were advised at oral
argument that the state action had been dismissed by the trial
court but that an appeal is pending before the Georgia Supreme
Court. Since we do not require petitioner first to seek vindication
of his federal rights in a state declaratory judgment action,
see Lake Carriers' Assn. v. MacMullan, supra, at
406 U. S. 510;
Wisconsin v. Constantineau, 400 U.
S. 433 (1971), consideration of abstention by the
District Court would be inappropriate unless the action commenced
by respondent Hudgens could be shown to present a substantial and
immediate possibility of obviating petitioner's federal claim by a
decision on state law grounds.
Cf. Askew v. Hargrave,
401 U. S. 476,
401 U. S. 478
(1971);
Reetz v. Bozanich, 397 U. S.
82 (1970).
MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE joins,
concurring.
While joining the opinion of the Court, I add a word by way of
emphasis.
Page 415 U. S. 476
Our decision today must not be understood as authorizing the
invocation of federal declaratory judgment jurisdiction by a person
who thinks a state criminal law is unconstitutional, even if he
genuinely feels "chilled" in his freedom of action by the law's
existence, and even if he honestly entertains the subjective belief
that he may now or in the future be prosecuted under it.
As the Court stated in
Younger v. Harris, 401 U. S.
37,
401 U. S.
52:
"The power and duty of the judiciary to declare laws
unconstitutional is in the final analysis derived from its
responsibility for resolving concrete disputes brought before the
courts for decision. . . ."
See also Boyle v. Landry, 401 U. S.
77,
401 U. S.
80-81.
The petitioner in this case has succeeded in objectively showing
that the threat of imminent arrest, corroborated by the actual
arrest of his companion, has created an actual concrete controversy
between himself and the agents of the State. He has, therefore,
demonstrated "a genuine threat of enforcement of a disputed state
criminal statute. . . ."
* Cases where such
a "genuine threat" can be demonstrated will, I think, be
exceedingly rare.
*
See ante at
415 U. S. 475.
Whether, in view of "recent developments," the controversy is a
continuing one, will be for the District Court to determine on
remand.
See ante at
415 U. S.
460.
MR. JUSTICE WHITE, concurring.
I offer the following few words in light of MR. JUSTICE
REHNQUIST's concurrence in which he discusses the impact on a
pending federal action of a later filed criminal prosecution
against the federal plaintiff, whether a federal court may enjoin a
state criminal prosecution under a statute the federal court has
earlier declared unconstitutional
Page 415 U. S. 477
at the suit of the defendant now being prosecuted, and the
question whether that declaratory judgment is
res judicata
in such a later filed state criminal action.
It should be noted, first, that his views on these issues are
neither expressly nor impliedly embraced by the Court's opinion
filed today. Second, my own tentative views on these questions are
somewhat contrary to my Brother's.
At this writing at least, I would anticipate that a final
declaratory judgment entered by a federal court holding particular
conduct of the federal plaintiff to be immune on federal
constitutional grounds from prosecution under state law should be
accorded
res judicata effect in any later prosecution of
that very conduct. There would also, I think, be additional
circumstances in which the federal judgment should be considered as
more than a mere precedent bearing on the issue before the state
court.
Neither can I, at this stage, agree that the federal court,
having rendered a declaratory judgment in favor of the plaintiff,
could not enjoin a later state prosecution for conduct that the
federal court has declared immune. The Declaratory Judgment Act
itself provides that a "declaration shall have the force and effect
of a final judgment or decree," 28 U.S.C. § 2201; eminent authority
anticipated that declaratory judgments would be
res
judicata, E. Borchard, Declaratory Judgments 10-11 (2d
ed.1941); and there is every reason for not reducing declaratory
judgments to mere advisory opinions.
Toucey v. New York Life
Insurance Co., 314 U. S. 118
(1941), once expressed the view that 28 U.S.C. 2283 forbade
injunctions against relitigation in state courts of federally
decided issues, but the section was then amended to overrule that
case, the consequence being that
"[i]t is clear that the
Toucey rule
Page 415 U. S. 478
is gone, and that, to protect or effectuate its judgment, a
federal court may enjoin relitigation in the state court."
C. Wright, Federal Courts 180 (2d ed.1970). I see no more reason
here to hold that the federal plaintiff must always rely solely on
his plea of
res judicata in the state courts. The statute
provides for "[f]urther necessary or proper relief . . . against
any adverse party whose rights have been determined by such
judgment," 28 U.S.C. § 2202, and it would not seem improper to
enjoin local prosecutors who refuse to observe adverse federal
judgments.
Finally, I would think that a federal suit challenging a state
criminal statute on federal constitutional grounds could be
sufficiently far along so that ordinary consideration of economy
would warrant refusal to dismiss the federal case solely because a
state prosecution has subsequently been filed and the federal
question may be litigated there.
MR. JUSTICE REHNQUIST with whom THE CHIEF JUSTICE joins,
concurring.
I concur in the opinion of the Court. Although my reading of the
legislative history of the Declaratory Judgment Act of 1934
suggests that its primary purpose was to enable persons to obtain a
definition of their rights before an actual injury had occurred,
rather than to palliate any controversy arising from
Ex parte
Young, 209 U. S. 123
(1908). Congress apparently was aware at the time it passed the Act
that persons threatened with state criminal prosecutions might
choose to forgo the offending conduct and, instead, seek a federal
declaration of their rights. Use of the declaratory judgment
procedure in the circumstances presented by this case seems
consistent with that congressional expectation.
If this case were the Court's first opportunity to deal with
this area of law, I would be content to let the
Page 415 U. S. 479
matter rest there. But, as our cases abundantly illustrate, this
area of law is in constant litigation, and it is an area through
which our decisions have traced a path that may accurately be
described as sinuous. Attempting to accommodate the principles of
the new declaratory judgment procedure with other more established
principles -- in particular a proper regard for the relationship
between the independent state and federal judiciary systems -- this
Court has acted both to advance and to limit the Act.
Compare
Aetna Life Ins. Co. v. Haworth, 300 U.
S. 227 (1937), and
Zwickler v. Koota,
389 U. S. 241
(1967),
with Great Lakes Co. v. Huffman, 319 U.
S. 293 (1943), and
Samuels v. Mackell,
401 U. S. 66
(1971). Because the opinion today may possibly be read by
resourceful counsel as commencing a new and less restrictive curve
in this path of adjudication, I feel it is important to emphasize
what the opinion does and does not say.
To begin with, it seems appropriate to restate the obvious: the
Court's decision today deals only with declaratory relief and with
threatened prosecutions. The case provides no authority for the
granting of any injunctive relief nor does it provide authority for
the granting of any relief at all when prosecutions are pending.
The Court quite properly leaves for another day whether the
granting of a declaratory judgment by a federal court will have any
subsequent
res judicata effect or will perhaps support the
issuance of a later federal injunction. But since possible
resolutions of those issues would substantially undercut the
principles of federalism reaffirmed in
Younger v. Harris,
401 U. S. 37
(1971), and preserved by the decision today, I feel it appropriate
to add a few remarks.
First, the legislative history of the Declaratory Judgment Act
and the Court's opinion in this case both
Page 415 U. S. 480
recognize that the declaratory judgment procedure is an
alternative to pursuit of the arguably illegal activity. [
Footnote 2/1] There is nothing in the Act's
history to suggest that Congress intended to provide persons
wishing to violate state laws with a federal shield behind which
they could carry on their contemplated conduct. Thus, I do not
believe that a federal plaintiff in a declaratory judgment action
can avoid, by the mere filing of a complaint, the principles so
firmly expressed in
Samuels, supra. The plaintiff who
continues to violate a state statute after the filing of his
federal complaint does so both at the risk of state prosecution and
at the risk of dismissal of his federal lawsuit. For any arrest
prior to resolution of the federal action would constitute a
pending prosecution and bar declaratory relief under the principles
of
Samuels.
Second, I do not believe that today's decision can properly be
raised to support the issuance of a federal injunction based upon a
favorable declaratory judgment. [
Footnote 2/2]
Page 415 U. S. 481
The Court's.description of declaratory relief as "
a milder
alternative to the injunction remedy,'" ante at
415 U. S. 467,
having a "less intrusive effect on the administration of state
criminal laws" than an injunction, ante at 415 U. S. 469,
indicates to me critical distinctions which make declaratory relief
appropriate where injunctive relief would not be. It would all but
totally obscure these important distinctions if a successful
application for declaratory relief came to be regarded not as the
conclusion of a lawsuit, but as a giant step toward obtaining an
injunction against a subsequent criminal prosecution. The
availability of injunctive relief must be considered with an eye
toward the important policies of federalism which this Court has
often recognized.
If the rationale of cases such as
Younger and
Samuels turned in any way upon the relative ease with
which a federal district court could reach a conclusion about the
constitutionality of a challenged state statute, a preexisting
judgment declaring the statute unconstitutional as applied to a
particular plaintiff would, of course, be a factor favoring the
issuance of an injunction as "further relief" under the Declaratory
Judgment Act. But, except for statutes that are "
flagrantly and
patently violative of express constitutional prohibitions in every
clause, sentence and paragraph . . . ,'" Younger v. Harris,
supra, at 401 U. S. 53,
the rationale of those cases has no such basis. Their direction
that federal courts not interfere with state prosecutions does not
vary depending on the closeness of the constitutional issue or on
the degree of confidence which the federal court possesses in the
correctness of its conclusions on the constitutional
Page 415 U. S. 482
point. Those decisions instead depend upon considerations
relevant to the harmonious operation of separate federal and state
court systems, with a special regard for the State's interest in
enforcing its own criminal laws, considerations which are as
relevant in guiding the action of a federal court which has
previously issued a declaratory judgment as they are in guiding the
action of one which has not. While the result may be that
injunctive relief is not available as "further relief" under the
Declaratory Judgment Act in this particular class of cases, whereas
it would be in similar cases not involving considerations of
federalism, this would be no more a
pro tanto repeal of
that provision of the Declaratory Judgment Act than was
Younger a
pro tanto repeal of the All Writs Act,
28 U.S.C. § 1651.
A declaratory judgment is simply a statement of rights, not a
binding order supplemented by continuing sanctions. State
authorities may choose to be guided by the judgment of a lower
federal court, but they are not compelled to follow the decision by
threat of contempt or other penalties. If the federal plaintiff
pursues the conduct for which he was previously threatened with
arrest and is, in fact, arrested, he may not return the controversy
to federal court, although he may, of course, raise the federal
declaratory judgment in the state court for whatever value it may
prove to have. [
Footnote 2/3] In
any event, the defendant at that point is able to present his
case
Page 415 U. S. 483
for full consideration by a state court charged, as are the
federal courts, to preserve the defendant's constitutional rights.
Federal interference with this process would involve precisely the
same concern's discussed in
Younger and recited in the
Court's opinion in this case. [
Footnote
2/4]
Third, attempts to circumvent
Younger by claiming that
enforcement of a statute declared unconstitutional by a federal
court is
per se evidence of bad faith should not find
support in the Court's decision in this case. As the Court notes,
quoting my Brother BRENNAN's separate opinion in
Perez v.
Ledesma, 401 U. S. 82,
401 U. S.
125:
"The persuasive force of the [federal] court's opinion and
judgment
may lead state prosecutors, courts, and
legislators to reconsider their respective responsibilities toward
the statute. Enforcement policies or judicial construction
may be changed, or the legislature
may repeal the
statute and start anew."
(Emphasis added.) This language clearly recognizes that
continued belief in the constitutionality of the statute by state
prosecutorial officials would not commonly be indicative of bad
faith, and that such allegations, in the absence of highly unusual
circumstances, would not justify a federal
Page 415 U. S. 484
court's departure from the general principles of restraint
discussed in
Younger.
If the declaratory judgment remains, as I think the Declaratory
Judgment Act intended, a simple declaration of rights without more,
it will not be used merely as a dramatic tactical maneuver on the
part of any state defendant seeking extended delays. Nor will it
force state officials to try cases time after time, first in the
federal courts and then in the state courts. I do not believe
Congress desired such unnecessary results, and I do not think that
today's decision should be read to sanction them. Rather, the Act,
and the decision, stand for the sensible proposition that both a
potential state defendant, threatened with prosecution but not
charged, and the State itself, confronted by a possible violation
of its criminal laws, may benefit from a procedure which provides
for a declaration of rights without activation of the criminal
process. If the federal court finds that the threatened prosecution
would depend upon a statute it judges unconstitutional, the State
may decide to forgo prosecution of similar conduct in the future,
believing the judgment persuasive. Should the state prosecutors not
find the decision persuasive enough to justify forbearance, the
successful federal plaintiff will at least be able to bolster his
allegations of unconstitutionality in the state trial with a
decision of the federal district court in the immediate locality.
The state courts may find the reasoning convincing even though the
prosecutors did not. Finally, of course, the state legislature may
decide, on the basis of the federal decision, that the statute
would be better amended or repealed. All these possible avenues of
relief would be reached voluntarily by the States, and would be
completely consistent with the concepts of federalism discussed
above. Other more intrusive forms of relief should not be routinely
available.
Page 415 U. S. 485
These considerations should prove highly significant in reaching
future decisions based upon the decision rendered today. For the
present it is enough to say, as the Court does, that petitioner, if
he successfully establishes the existence of a continuing
controversy on remand, may maintain an action for a declaratory
judgment in the District Court.
[
Footnote 2/1]
The report accompanying the Senate version of the bill
stated:
"The procedure has been especially useful in avoiding the
necessity, now so often present., of having to act at one's peril
or to act on one's own interpretation of his rights, or abandon
one's rights because of a fear of incurring damages. So now it is
often necessary, in the absence of the declaratory judgment
procedure, to violate or purport to violate a statute in order to
obtain a judicial determination of its meaning or validity. . . .
Persons now often have to act at their peril, a danger which could
be frequently avoided by the ability to sue for a declaratory
judgment as to their rights or duties."
S.Rep. No. 1005, 73d Cong., 2d Sess., 2-3 (1934). Petitioner in
this case, of course, did cease his handbilling activities after
the warning of arrest.
[
Footnote 2/2]
In
Samuels v. Mackell, 401 U. S.
66,
401 U. S. 72
(1971), the Court expressed concern that a declaratory judgment
issued while a state prosecution was pending "might serve as the
basis for a subsequent injunction against those proceedings. . . ."
The Court recognized that this chain of litigation would "result in
a clearly improper interference with the state proceedings."
Ibid. As discussed
infra, I believe that such
improper interference would be present even though the declaratory
judgment itself were issued prior to the time of the federal
plaintiff's arrest.
[
Footnote 2/3]
The Court's opinion notes that the possible
res
judicata effect of a federal declaratory judgment in a
subsequent state court prosecution is a question "
not free from
difficulty.'" Ante at 415 U. S. 470.
I express no opinion on that issue here. However, I do note that
the federal decision would not be accorded the stare
decisis effect in state court that it would have in a
subsequent proceeding within the same federal jurisdiction.
Although the state court would not be compelled to follow the
federal holding, the opinion might, of course, be viewed as highly
persuasive.
[
Footnote 2/4]
The Court's opinion says:
"Sensitive to principles of equity, comity, and federalism, we
recognized in
Younger v. Harris,
[
401 U.S.
37 (1971),] that federal courts should ordinarily refrain from
enjoining ongoing state criminal prosecutions. We were cognizant
that a pending state proceeding, in all but unusual cases, would
provide the federal plaintiff with the necessary vehicle for
vindicating his constitutional rights, and, in that circumstance,
the restraining of an ongoing prosecution would entail an unseemly
failure to give effect to the principle that state courts 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,
111 U. S.
637 (1884)."
Ante at
415 U. S.
460-461.