Ohio's public nuisance statute provides, inter alia,
that a place exhibiting obscene films is a nuisance, requires up to
a year's closure of any place determined to be a nuisance, and also
provides for the sale of personalty used in conducting the
nuisance. Appellant officials instituted a proceeding under the
statute in state court against appellee's predecessor as operator
of a theater displaying pornographic films. Concluding that the
defendant had displayed obscene movies, the trial court rendered a
judgment in appellants' favor and ordered the theater closed for a
year and the seizure and sale of the personal property used in its
operation. Appellee, which had taken over operation of the theater
prior to the judgment, rather than appealing within the state
system, immediately filed suit in Federal District Court under 42
U.S.C. § 1983, alleging that appellants' use of the nuisance
statute constituted a deprivation of constitutional rights under
the color of state law, and seeking injunctive and declaratory
relief. Without considering whether it should have stayed its hand
in deference to the federalism principles set forth in Younger
v. Harris, 401 U. S. 37
District Court declared the nuisance statute unconstitutional on
First Amendment grounds and enjoined the execution of the state
court's judgment insofar as it closed the theater to films that had
not been adjudged obscene in prior adversary hearings.
Under the circumstances, the principles of Younger
applicable even though the state proceeding is civil in nature, and
the District Court should have applied the tests laid down in
in determining whether to proceed to the merits,
and should not have entertained the action unless appellee
established that early intervention was justified under the
exceptions recognized in Younger,
where the state
proceeding is conducted with an intent to harass or in bad faith,
or the challenged statute is flagrantly and patently
unconstitutional. Pp. 603-613.
(a) The component of Younger,
which rests upon the
threat to our federal system if federal judicial interference with
Page 420 U. S. 593
proceedings were permitted, applies equally to a civil
proceeding such as this, which is more akin to a criminal
prosecution than are most civil cases. Pp. 420 U. S.
(b) Apart from any right which appellee might have had to appeal
to this Court if it had remained in state court, it should not, in
view of the comity and federalism interests that Younger
seeks to protect, be permitted the luxury of federal litigation of
issues presented by ongoing state proceedings. But even assuming,
that litigants are entitled to a federal forum
for resolution of all federal issues, that entitlement is most
appropriately asserted by a state litigant when he seeks to
relitigate a federal issue adversely determined in completed state
court proceedings. Pp. 420 U. S.
(c) Regardless of when the state trial court's judgment became
standards must be met to justify federal
intervention in a state judicial proceeding as to which a losing
litigant has not exhausted his state appellate remedies before
seeking relief in federal district court. The considerations of
comity and federalism which underlie Younger
truncation of the exhaustion requirement merely because the losing
party in the state court of general jurisdiction believes, as
appellee did here, that his chances of prevailing on appeal are not
auspicious. Pp. 420 U. S.
(d) Since the District Court did not rule on the
issue, this case is appropriate for remand so that
court may consider whether irreparable injury can be shown in light
of an intervening Ohio Supreme Court decision, and, if so, whether
that injury is of such a nature that the District Court may assume
jurisdiction under an exception to the policy against federal
judicial interference with state court proceedings of this kind.
Pp. 420 U. S.
Vacated and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ.,
joined. DOUGLAS, J., filed a dissenting statement, post,
p. 420 U. S. 618
BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and
MARSHALL, JJ., joined, post,
p. 420 U. S.
Page 420 U. S. 594
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
This case requires that we decide whether our decision in
Younger v. Harris, 401 U. S. 37
(1971), bars a federal district court from intervening in a state
civil proceeding such as this, when the proceeding is based on a
state statute believed by the district court to be
unconstitutional. A similar issue was raised in Gibson v.
Berryhill, 411 U. S. 564
(1973), but we were not required to decide it because there the
enjoined state proceedings were before a biased administrative body
which could not provide a necessary predicate for a
dismissal, that is, "the opportunity to raise and
have timely decided by a competent state tribunal the federal
issues involved." Id.
at 411 U. S. 577
Similarly, in Speight v. Slaton, 415 U.
(1974), we noted probable jurisdiction to
consider the applicability of Younger
cases, but remanded for reconsideration in light of a subsequent
decision of the Georgia Supreme Court which struck down the
challenged statute on similar facts. Today we do reach the issue,
and conclude that, in the circumstances presented here, the
principles of Younger
are applicable even though the state
proceeding is civil in nature. [Footnote 1
Page 420 U. S. 595
Appellants are the sheriff and prosecuting attorney of Allen
County, Ohio. This case arises from their efforts to close the
Cinema I Theatre, in Lima, Ohio. Under the management of both its
current tenant, appellee Pursue, Ltd., and appellee's predecessor,
William Dakota, the Cinema I has specialized in the display of
films which may fairly be characterized as pornographic, [Footnote 2
] and which, in numerous
instances, have been adjudged obscene after adversary hearings.
Appellants sought to invoke the Ohio public nuisance statute,
Ohio Rev.Code Ann. § 3767.01 et seq.
appellee. Section 3767.01(C) [Footnote 3
] provides that
Page 420 U. S. 596
a place which exhibits obscene [Footnote 4
] films is a nuisance, while § 3767.06 [Footnote 5
] requires closure for up to
a year of any place determined to be a nuisance. The statute
Page 420 U. S. 597
provides for preliminary injunctions pending final determination
of status as a nuisance, [Footnote
] for sale of all personal property used in conducting the
nuisance, [Footnote 7
] and for
release from a closure order upon satisfaction of certain
conditions (including a showing that the nuisance will not be
Page 420 U. S. 598
Appellants instituted a nuisance proceeding in the Court of
Common Pleas of Allen County against appellee's predecessor,
William Dakota. During the course of the somewhat involved legal
proceedings which followed, the Court of Common Pleas reviewed 16
movies which had been shown at the theater. The court rendered a
judgment that Dakota had engaged in a course of conduct of
displaying obscene movies at the Cinema I, and that the theater was
therefore to be closed, pursuant to Ohio Rev.Code Ann. § 3767.06
"for any purpose for a period of one year unless sooner released
by Order of [the] Court pursuant to defendant owners fulfilling the
requirements provided in Section 3767.04 of the Revised Code of
The judgment also provided for the seizure and sale of personal
property used in the theater's operations. [Footnote 9
Appellee, Pursue, Ltd., had succeeded to William Dakota's
leasehold interest in the Cinema I prior to entry of the state
court judgment. Rather than appealing that judgment within the Ohio
court system, it immediately filed suit in the United States
District Court for the Northern District of Ohio. The complaint was
based on 42 U.S.C. § 1983, and alleged that appellants' use of
Ohio's nuisance statute constituted a deprivation of constitutional
rights under the color of state law. It sought injunctive relief
and a declaratory judgment that the statute was unconstitutional
and unenforceable. [Footnote
Page 420 U. S. 599
the complaint was directed against the constitutionality of a
state statute, a three-judge court was convened. [Footnote 11
] The District Court concluded
that, while the statute was not vague, it did constitute an overly
broad prior restraint on First Amendment rights insofar as it
permanently or temporarily prevented the showing of films which had
not been adjudged obscene in prior adversary hearings. Cf. Near
v. Minnesota ex rel. Olson, 283 U. S. 697
(1931). Fashioning its remedy to match the perceived constitutional
defect, the court permanently enjoined the execution of that
portion of the state court's judgment that closed the Cinema I to
films which had not been adjudged obscene. [Footnote 12
] The judgment and opinion of the
District Court give no indication that it considered whether it
should have stayed its hand in deference to the principles of
federalism which find expression in Younger v. Harris,
401 U. S. 37
On this appeal, appellants raise the Younger
as well as a variety of constitutional and statutory issues. We
need consider only the applicability of Younger.
and its companion cases [Footnote 13
] considered the propriety of federal
court intervention in pending state
Page 420 U. S. 600
criminal prosecutions. The issue was not a novel one, and the
Court relied heavily on Fenner v. Boykin, 271 U.
(1926), and subsequent cases [Footnote 14
] which endorsed its holding
that federal injunctions against the state criminal law enforcement
process could be issued only "under extraordinary circumstances
where the danger of irreparable loss is both great and immediate."
at 271 U. S. 243
itself involved a challenge to a prosecution under
the California Criminal Syndicalism Act, which allegedly was
unconstitutional on its face. In an opinion for the Court by Mr.
Justice Black, we observed that
"it has been perfectly natural for our cases to repeat time and
time again that the normal thing to do when federal courts are
asked to enjoin pending proceedings in state courts is not to issue
401 U.S. at 401 U. S. 45
noted that not only had a congressional statute manifested an
interest in permitting state courts to try state cases, [Footnote 15
] but that there had also
long existed a strong judicial policy against federal interference
with state criminal proceedings. We recognized that this judicial
policy is based in part on the traditional doctrine that a court of
equity should stay its hand when a movant
Page 420 U. S. 601
has an adequate remedy at law, and that it "particularly should
not act to restrain a criminal prosecution." Id.
401 U. S. 43
But we went on to explain that this doctrine "is reinforced by an
even more vital consideration," an aspect of federalism which we
"the notion of 'comity,' that is, a proper respect for state
functions, a recognition of the fact that the entire country is
made up of a Union of separate state governments, and a continuance
of the belief that the National Government will fare best if the
States and their institutions are left free to perform their
separate functions in their separate ways."
at 401 U. S.
Central to Younger
was the recognition that ours is a
system in which
"the National Government, anxious though it may be to vindicate
and protect federal rights and federal interests, always endeavors
to do so in ways that will not unduly interfere with the legitimate
activities of the States."
We reaffirmed the requirement of Fenner v.
that extraordinary circumstances must be present to
justify federal injunctive relief against state criminal
prosecutions. Echoing Fenner,
we stated that a movant must
show not merely the "irreparable injury" which is a normal
prerequisite for an injunction, but also must show that the injury
would be "great and immediate.'" 401 U.S. at 401 U.S. 46. The opinion also suggested
that only in extraordinary situations could the necessary injury be
shown if the prosecution was conducted in good faith and without an
intent to harass. Id. at 401 U. S. 54. It
was particularly noted that the "cost, anxiety, and inconvenience
of having to defend against
Page 420 U. S. 602
a single criminal prosecution" was not the type of injury that
could justify federal interference. Id.
at 401 U.S. 46
. [Footnote 16
we also considered whether the policy of
noninterference had been modified by our decision in Dombrowski
v. Pfister, 380 U. S. 479
(1965), at least insofar as First Amendment attacks on statutes
thought to be facially invalid are concerned. We observed that the
arrests and threatened prosecutions in Dombrowski
alleged to have been in bad faith and employed as a means of
harassing the federal court plaintiffs. That case was thus within
the traditional narrow exceptions to the doctrine that federal
courts should not interfere with state prosecutions. We
acknowledged in Younger
that it is,
"of course, conceivable that a statute might be flagrantly and
patently violative of express constitutional prohibitions in every
clause, sentence and paragraph, and in whatever manner and against
whomever an effort might be made to apply it,"
and that such a situation might justify federal intervention,
401 U.S. at 401 U. S. 53
But we unequivocally held that facial invalidity of a statute is
not itself an exceptional circumstance justifying federal
interference with state criminal proceedings.
In Steffel v. Thompson, 415 U.
(1974), we considered whether Younger
required exceptional circumstances to justify federal declaratory
relief against state criminal statutes when a prosecution was not
pending. In concluding that it did not, we had occasion to identify
more specifically some of the means by which federal interference
with state proceedings might violate the principles of comity and
federalism on which Younger
is based. We noted that "the
relevant principles of equity,
Page 420 U. S. 603
comity, and federalism have little force in the absence of a
pending state proceeding.'" Id. at 415 U. S. 462.
"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."
It is against this background that we consider the propriety of
federal court intervention with the Ohio nuisance proceeding at
issue in this case.
The seriousness of federal judicial interference with state
civil functions has long been recognized by this Court. We have
consistently required that, when federal courts are confronted with
requests for such relief, they should abide by standards of
restraint that go well beyond those of private equity
jurisprudence. For example, Massachusetts State Grange v.
Benton, 272 U. S. 525
(1926), involved an effort to enjoin the operation of a state
daylight savings act. Writing for the Court, Mr. Justice Holmes
cited Fenner v. Boykin, supra,
and emphasized a rule that
"should be very strictly observed," 272 U.S. at 272 U. S.
"that no injunction ought to issue against officers of a State
clothed with authority to enforce the law in question, unless in a
case reasonably free from doubt and when necessary to prevent great
and irreparable injury."
at 272 U. S.
Although Mr. Justice Holmes was confronted with a bill seeking
an injunction against state executive officers, rather than against
state judicial proceedings,
Page 420 U. S. 604
we think that the relevant considerations of federalism are of
no less weight in the latter setting. If anything, they counsel
more heavily toward federal restraint, since interference with a
state judicial proceeding prevents the state not only from
effectuating its substantive policies, but also from continuing to
perform the separate function of providing a forum competent to
vindicate any constitutional objections interposed against those
policies. Such interference also results in duplicative legal
proceedings, and can readily be interpreted "as reflecting
negatively upon the state court's ability to enforce constitutional
principles." Cf. Steffel v. Thompson, supra,
415 U. S.
The component of Younger
which rests upon the threat to
our federal system is thus applicable to a civil proceeding such as
this quite as much as it is to a criminal proceeding.
however, also rests upon the traditional
reluctance of courts of equity, even within a unitary system, to
interfere with a criminal prosecution. Strictly speaking, this
element of Younger
is not available to mandate federal
restraint in civil cases. But whatever may be the weight attached
to this factor in civil litigation involving private parties, we
deal here with a state proceeding which, in important respects, is
more akin to a criminal prosecution than are most civil cases. The
State is a party to the Court of Common Pleas proceeding, and the
proceeding is both in aid of and closely related to criminal
statutes which prohibit the dissemination of obscene materials.
Thus, an offense to the State's interest in the nuisance litigation
is likely to be every bit as great as it would be were this a
criminal proceeding. Cf. Younger v. Harris,
401 U.S. at
401 U. S. 55
2 (STEWART, J., concurring). Similarly, while, in this case, the
District Court's injunction has not directly disrupted Ohio's
Page 420 U. S. 605
system, it has disrupted that State's efforts to protect the
very interests which underlie its criminal laws and to obtain
compliance with precisely the standards which are embodied in its
criminal laws. [Footnote
In spite of the critical similarities between a criminal
prosecution and Ohio nuisance proceedings, appellee nonetheless
urges that there is also a critical difference between the two
which should cause us to limit Younger
proceedings. This difference, says appellee, is that, whereas a
state court criminal defendant may, after exhaustion of his state
remedies, present his constitutional claims to the federal courts
through habeas corpus, no analogous remedy is available to one,
like appellee, whose constitutional rights may have been infringed
in a state proceeding which cannot result in custodial detention or
other criminal sanction.
A civil litigant may, of course, seek review in this Court of
any federal claim properly asserted in and rejected by state
courts. Moreover, where a final decision of a state court has
sustained the validity of a state statute challenged on federal
constitutional grounds, an appeal to this Court lies as a matter of
right. 28 U.S.C. § 1257(2). Thus, appellee in this case was assured
of eventual consideration of its claim by this Court. But quite
apart from appellee's right to appeal had it remained in state
court, we conclude that it should not be permitted the luxury of
federal litigation of issues presented by ongoing state
proceedings, a luxury which,
Page 420 U. S. 606
as we have already explained, is quite costly in terms of the
interests which Younger
seeks to protect.
Appellee's argument, that, because there may be no civil
counterpart to federal habeas, it should have contemporaneous
access to a federal forum for its federal claim, apparently depends
on the unarticulated major premise that every litigant who asserts
a federal claim is entitled to have it decided on the merits by a
federal, rather than a state, court. We need not consider the
validity of this premise in order to reject the result which
appellee seeks. Even assuming, arguendo,
are entitled to a federal forum for the resolution of all federal
issues, that entitlement is most appropriately asserted by a state
litigant when he seeks to relitigate a federal issue adversely
determined in completed state court proceedings. [Footnote 18
] We do not understand why the
federal forum must be available prior to completion of the state
proceedings in which the federal issue arises, and the
considerations canvassed in Younger
militate against such
The issue of whether federal courts should be able to interfere
with ongoing state proceedings is quite distinct and separate from
the issue of whether litigants are entitled to subsequent federal
review of state court dispositions of federal questions.
turned on considerations of comity and federalism
peculiar to the fact that state proceedings were pending; it did
not turn on the fact that, in any event, a criminal defendant
Page 420 U. S. 607
could eventually have obtained federal habeas consideration of
his federal claims. The propriety of federal court interference
with an Ohio nuisance proceeding must likewise be controlled by
application of those same considerations of comity and
Informed by the relevant principles of comity and federalism, at
least three Courts of Appeals have applied Younger
the pending state proceedings were civil in nature. See Duke v.
477 F.2d 244 (CA5 1973); Lynch v. Snepp,
F.2d 769 (CA4 1973); Cousins v. Wigoda,
463 F.2d 603 (CA7
1972). For the purposes of the case before us, however, we need
make no general pronouncements upon the applicability of
to all civil litigation. It suffices to say that,
for the reasons heretofore set out, we conclude that the District
Court should have applied the tests laid down in Younger
in determining whether to proceed to the merits of appellee's
prayer for relief against this Ohio civil nuisance proceeding.
Appellee contends that, even if Younger
to civil proceedings of this sort, it nonetheless does not govern
this case, because, at the time the District Court acted, there was
no longer a "pending state court proceeding" as that term is used
in Younger. Younger
and subsequent cases such as
have used the term "pending proceeding" to
distinguish state proceedings which have already commenced from
those which are merely incipient or threatened. Here, of course,
the state proceeding had begun long before appellee sought
intervention by the District Court. But appellee's point, we take
it, is not that the state proceeding had not begun, but that it had
ended by the time its District Court complaint was filed. [Footnote 19
Page 420 U. S. 608
Appellee apparently relies on the facts that the Allen County
Court of Common Pleas had already issued its judgment and permanent
injunction when this action was filed, and that no appeal from that
judgment has ever been taken to Ohio's appellate courts. As a
matter of state procedure, the judgment presumably became final, in
the sense of being nonappealable, at some point after the District
Court filing, possibly prior to entry of the District Court's own
judgment, but surely after the single judge stayed the state
court's judgment. We need not, however, engage in such inquiry. For
regardless of when the Court of Common Pleas' judgment became
final, we believe that a necessary concomitant of Younger
is that a party in appellee's posture must exhaust his state
appellate remedies before seeking relief in the District Court,
unless he can bring himself within one of the exceptions specified
Virtually all of the evils at which Younger
would inhere in federal intervention prior to completion of state
appellate proceedings, just as surely as they would if such
intervention occurred at or before trial. Intervention at the later
stage is, if anything, more highly duplicative, since an entire
trial has already taken place, and it is also a direct aspersion on
the capabilities and good faith of state appellate courts. Nor, in
these state-initiated nuisance proceedings, is federal intervention
at the appellate stage any the less a disruption of the State's
efforts to protect interests which it deems important. Indeed, it
is likely to be even more disruptive and offensive because the
State has already won a nisi
Page 420 U. S. 609
determination that its valid policies are being
violated in a fashion which justifies judicial abatement.
Federal post-trial intervention, in a fashion designed to annul
the results of a state trial, also deprives the States of a
function which quite legitimately is left to them, that of
overseeing trial court dispositions of constitutional issues which
arise in civil litigation over which they have jurisdiction.
] We think this
consideration to be of some importance, because it is typically a
judicial system's appellate courts which are, by their nature, a
litigant's most appropriate forum for the resolution of
constitutional contentions. Especially is this true when, as here,
the constitutional issue involves a statute which is capable of
judicial narrowing. In short, we do not believe that a State's
judicial system would be fairly accorded the opportunity to resolve
federal issues arising in its courts if a federal district court
were permitted to substitute itself for the State's appellate
courts. We therefore hold that Younger
standards must be
met to justify federal intervention in a state judicial proceeding
as to which a losing litigant has not exhausted his state appellate
remedies. [Footnote 21
Page 420 U. S. 610
At the time appellee filed its action in the United States
District Court, it had available the remedy of appeal to the Ohio
appellate courts. Appellee nonetheless contends that exhaustion of
state appellate remedies should not be required, because an appeal
would have been "futile." This claim is based on the decision of
the Supreme Court of Ohio in State ex rel. Keating v. A Motion
Picture Film Entitled "Vixen,"
27 Ohio St.2d 278, 272 N.E.2d
137 (1971), which had been rendered at the time of the proceedings
in the Court of Common Pleas. While Keating
did uphold the
use of a nuisance statute against a film which ran afoul of Ohio's
statutory definition of obscenity, it had absolutely nothing to say
with respect to appellee's principal contention here, that of
whether the First and Fourteenth Amendments prohibit a blanket
injunction against a showing of all films, including those which
have not been adjudged obscene in adversary proceedings. We
therefore have difficulty understanding appellee's belief that an
appeal was doomed to failure.
More importantly, we are of the opinion that the considerations
of comity and federalism which underlie Younger
truncation of the exhaustion requirement merely because the losing
party in the state court of general jurisdiction believes that his
chances of success on appeal are not auspicious. Appellee obviously
Page 420 U. S. 611
itself possessed of a viable federal claim, else it would not so
assiduously seek to litigate in the District Court. Yet Art. VI of
the United States Constitution declares that "the Judges in every
State shall be bound" by the Federal Constitution, laws, and
treaties. Appellee is, in truth, urging us to base a rule on the
assumption that state judges will not be faithful to their
constitutional responsibilities. This we refuse to do. The District
Court should not have entertained this action, seeking pre-appeal
interference with a state judicial proceeding, unless appellee
established that early intervention was justified under one of the
exceptions recognized in Younger.
and its civil counterpart which we apply
today, do, of course, allow intervention in those cases where the
District Court properly finds that the state proceeding is
motivated by a desire to harass or is conducted in bad faith, or
where the challenged statute is
"'flagrantly and patently violative of express constitutional
prohibitions in every clause, sentence and paragraph, and in
whatever manner and against whomever an effort might be made to
As we have noted, the District Court in this case did not rule
on the Younger
issue, and thus apparently has not
considered whether its intervention was justified by one of these
narrow exceptions. Even if the District Court's opinion can be
interpreted as a sub silentio
Page 420 U. S. 612
that the case fits within the exception for statutes which are
"flagrantly and patently violative of express constitutional
prohibitions,'" such a characterization of the statute is not
possible after the subsequent decision of the Supreme Court of Ohio
in State ex rel. Ewing v. A Motion Picture Film Entitled
"Without a Stitch," 37 Ohio St.2d 95, 307 N.E.2d 911 (1974).
That case narrowly construed the Ohio nuisance statute, with a view
to avoiding the constitutional difficulties which concerned the
District Court. [Footnote
We therefore think that this case is appropriate for remand so
that the District Court may consider whether irreparable injury can
be shown in light of "Without a Stitch,"
and, if so,
whether that injury is of such a nature that the District Court may
assume jurisdiction under an exception to the policy against
federal judicial interference with state court proceedings of this
kind. The judgment of the District Court is vacated, and the cause
Page 420 U. S. 613
remanded for further proceedings consistent with this
It is so ordered.
Other recent cases raising issues of the applicability of
in the noncriminal context include Mitchum v.
Foster, 407 U. S. 225
(1972), and Sosna v. Iowa, 419 U.
(1975). In Mitchum,
a 42 U.S.C. § 1983
action to enjoin a pending nuisance proceeding was remanded for
further proceedings; the District Court had denied relief solely on
the basis of the anti-injunction statute, 28 U.S.C. § 2283,
Our opinion specified that we were in no way
questioning or qualifying "the principles of equity, comity, and
federalism" canvassed in Younger.
407 U.S. at 407 U. S.
we directed the parties to address the
issue, 415 U.S. 911 (1974), reflecting our concern
as to whether the constitutional merits should be reached in light
of Sosna's failure to appeal the state trial court's adverse ruling
through the state appellate network. Because both parties urged
that we proceed to the merits, we did not reach the issue.
419 U.S. at 419 U. S.
-397, n. 3.
See Miller v. California, 413 U. S.
, 413 U. S. 119
n. 2 (1973), which discusses the distinction between "pornography"
"§ 3767.01 Definitions."
"As used in all sections of the Revised Code relating to
"* * * *"
"(C) 'Nuisance' means that which is defined and declared by
statutes to be such and also means any place in or upon which
lewdness, assignation, or prostitution is conducted, permitted,
continued, or exists, or any place, in or upon which lewd,
indecent, lascivious, or obscene films or plate negatives, film or
plate positives, films designed to be projected on a screen for
exhibition, films or glass slides either in negative or positive
form designed for exhibition by projection on a screen, are
photographed, manufactured, developed, screened, exhibited, or
otherwise prepared or shown, and the personal property and contents
used in conducting and maintaining any such place for any such
purpose. This chapter shall not affect any newspaper, magazine, or
other publication entered as second class matter by the post office
As interpreted by the Ohio Supreme Court, State ex rel.
Keating v. A Motion Picture Film Entitled "Vixen,"
St.2d 278, 272 N.E.2d 137 (1971), the determination of obscenity is
to be based on the definition contained in Ohio's criminal
statutes, Ohio Rev.Code Ann. § 2905.34 (Supp. 1972), now § 2907.01
(1975). On this Court's remand of Keating,
413 U.S. 905
(1973), following our decision in Miller v. California,
the Ohio Supreme Court concluded that the statute's
definition comported with Miller's
standards. 35 Ohio St.2d 215, 301 N.E.2d 880 (1973).
"§ 3767.06 Content of judgment and order."
"If the existence of a nuisance is admitted or established in an
action as provided in sections 3767.01 to 3767.11, inclusive, of
the Revised Code, or in a criminal proceeding, an order of
abatement shall be entered as a part of the judgment in the case,
which order shall direct the removal from the place of all personal
property and contents used in conducting the nuisance, and not
already released under authority of the court as provided in
section 3767.04 of the Revised Code, and shall direct the sale of
such thereof as belong to the defendants notified or appearing, in
the manner provided for the sale of chattels under execution. Such
order shall also require the renewal for one year of any bond
furnished by the owner of the real property, as provided in section
3767.04 of the Revised Code, or, if not so furnished, shall
continue for one year any closing order issued at the time of
granting the temporary injunction, or, if no such closing order was
then issued, shall include an order directing the effectual closing
of the place against its use for any purpose, and keeping it closed
for a period of one year unless sooner released. "
The owner of any place closed and not released under bond may
then appear and obtain such release in the manner and upon
fulfilling the requirements provided in section 3767.04 of the
Revised Code. The release of the property under this section shall
not release it from any judgment, lien, penalty, or liability to
which it may be subject. Owners of unsold personal property and
contents so seized must appear and claim the same within ten days
after such order of abatement is made and prove innocence, to the
satisfaction of the court, of any knowledge of said use thereof and
that with reasonable care and diligence they could not have known
thereof. Every defendant in the action is presumed to have had
knowledge of the general reputation of the place. If such innocence
is established, such unsold personal property and contents shall be
delivered to the owner, otherwise it shall be sold as provided in
this section. For removing and selling the personal property and
contents, the officer shall be entitled to charge and receive the
same fees as he would for levying upon and selling like property on
execution; and for closing the place and keeping it closed, a
reasonable sum shall be allowed by the court.
Ohio Rev.Code Ann. § 3767.04 (1971).
§ 3767.06 (1971), supra, n
The referenced portion of § 3767.04 (1971)
"The owner of any real or personal property closed or restrained
or to be closed or restrained may appear between the filing of the
petition and the hearing on the application for a permanent
injunction and, upon payment of all costs incurred and upon the
filing of a bond by the owner of the real property with sureties to
be approved by the clerk in the full value of the property to be
ascertained by the court, or, in vacation, by the judge,
conditioned that such owner will immediately abate the nuisance and
prevent the same from being established or kept until the decision
of the court or judge is rendered on the application for a
permanent injunction, then the court, or judge in vacation, if
satisfied of the good faith of the owner of the real property and
of innocence on the part of any owner of the personal property of
any knowledge of the use of such personal property as a nuisance
and that, with reasonable care and diligence, such owner could not
have known thereof, shall deliver such real or personal property,
or both, to the respective owners thereof, and discharge or refrain
from issuing at the time of the hearing on the application for the
temporary injunction any order closing such real property or
restraining the removal or interference with such personal
property. The release of any real or personal property, under this
section, shall not release it from any judgment, lien, penalty, or
liability to which it may be subjected."
State ex rel. Huffman v. Dakota,
No. 72 CIV 0326
(Ct.Com.Pleas, Allen County, Ohio, Nov. 30, 1972).
Because the state court judgment was primarily directed against
a property interest to which Pursue had succeeded, the District
Court concluded that Pursue had standing to challenge the nuisance
statute. Similarly, counsel for Pursue conceded at oral argument
that Pursue could have appealed the judgment of the Court of Common
Pleas within the Ohio court system.
Pending the convening of the three-judge court, a single judge
of the Northern District of Ohio stayed the judgment of the Court
of Common Pleas, except insofar as that judgment applied to films
which had been declared obscene in a prior adversary hearing. The
stay order was entered on the day that the action was filed, one
day after entry of judgment by the Court of Common Pleas.
No. C 72-432 (ND Ohio, Apr. 20, 1973).
Samuels v. Mackell, 401 U. S. 66
(1971); Boyle v. Landry, 401 U. S. 77
(1971); Perez v. Ledesma, 401 U. S.
(1971); Dyson v. Stein, 401 U.
(1971); Byrne v. Karalexis, 401 U.
See, e.g., Spielman Motor Sales Co. v. Dodge,
295 U. S. 89
(1935); Beal v. Missouri P. R. Co., 312 U. S.
(1941); Watson v. Buck, 313 U.
(1941); Williams v. Miller,
317 U.S. 599
(1942); Douglas v. City of Jeannette, 319 U.
Title 28 U.S.C. § 2283 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."
We held in Mitchum v. Foster, 407 U.
(1972), that 42 U.S.C. § 1983 contained an
expressly authorized congressional exception. Thus, while the
statute does express the general congressional attitude which was
recognized in Younger,
it does not control the case before
While these standards governing federal interference were
largely shaped in the context of prayers for federal injunctions
against state proceedings, it is clear that, with respect to
pending prosecutions, the same standards apply to interference in
the form of declaratory relief. See Samuels v. Mackell,
401 U. S. 66
The relation of a proceeding which is nominally "civil" to a
State's criminal laws has been relied on by lower federal courts in
problems. See MTM, Inc. v.
Baxley, 365 F.
(ND Ala.1973), probable jurisdiction noted, 415 U.S.
975 (1974); Palaio v. McAuliffe,
466 F.2d 1230 (CA5
We in no way intend to suggest that there is a right of access
to a federal forum for the disposition of all federal issues, or
that the normal rules of res judicata
estoppel do not operate to bar relitigation in actions under 42
U.S.C. § 1983 of federal issues arising in state court proceedings.
Cf. Preiser v. Rodriguez, 411 U.
, 411 U. S. 497
(1973). Our assumption is made solely as a means of disposing of
appellee's contentions without confronting issues which have not
been briefed or argued in this case.
It would ordinarily be difficult to consider this problem, that
of the duration of Younger's
restrictions after entry of a
state trial court judgment, without also considering the res
implications of such a judgment. However, appellants
did not plead res judicata
in the District Court, and it
is therefore not available to them here. See
Civ.Proc. 8(c); Sosna v. Iowa,
419 U.S. at 419 U. S.
-397, n. 3.
That a state judicial system may retain undisturbed jurisdiction
despite possibly erroneous trial court disposition of
constitutional issues was recognized in Dombrowski v.
Pfister, 380 U. S. 479
380 U. S.
-485 (1965), where we stated:
"[T]he mere possibility of erroneous initial application of
constitutional standards will usually not amount to the irreparable
injury necessary to justify a disruption of orderly state
By requiring exhaustion of state appellate remedies for the
purposes of applying Younger,
we in no way undermine
Monroe v. Pape, 365 U. S. 167
(1961). There, we held that one seeking redress under 42 U.S.C. §
1983 for a deprivation of federal rights need not first initiate
state proceedings based on related state causes of action. 365 U.S.
at 365 U. S. 183
Monroe v. Pape
had nothing to do with the problem
presently before us, that of the deference to be accorded state
proceedings which have already been initiated and which afford a
competent tribunal for the resolution of federal issues.
Our exhaustion requirement is likewise not inconsistent with
such cases as City Bank Farmers Trust Co. v. Schnader,
291 U. S. 24
(1934), and Bacon v. Rutland R. Co., 232 U.
(1914), which expressed the doctrine that a
federal equity plaintiff challenging state administrative action
need not have exhausted his state judicial remedies. Those cases
did not deal with situations in which the state judicial process
had been initiated.
While appellee had the option to appeal in state courts at the
time it filed this action, we do not know for certain whether such
remedy remained available at the time the District Court issued its
permanent injunction, or whether it remains available now. In any
event, appellee may not avoid the standards of Younger
simply failing to comply with the procedures of perfecting its
appeal within the Ohio judicial system.
In "Without a Stitch,
" it was decided that the closure
provisions of Ohio Rev.Code Ann. § 3767.06 (1971) were applicable
even if a theater had shown only one film which was adjudged to be
obscene. However, the Ohio Supreme Court was concerned with the
constitutional implications of prior restraint of films which had
not been so adjudged. In narrowing the statute, the court noted
that § 3767.04 specifies conditions under which a release may be
obtained from the closure order: the property owner must appear in
court, pay the cost incurred in the action, file a bond in the full
value of the property, and demonstrate to the court that he will
prevent the nuisance from being reestablished. The court then made
this critical clarification:
"The nuisance is the exhibition of the particular film declared
obscene. The release provisions do not, as appellants contend,
require the owner to show that no film to be exhibited during the
one-year period will be obscene. Such a requirement would not only
be impossible, as a practical matter, but also would be an
unconstitutional prior restraint. . . ."
37 Ohio St.2d at 105, 307 N.E.2d at 918.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE MARSHALL join, dissenting.
I dissent. The treatment of the state civil proceeding as one
"in aid of and closely related to criminal statutes" is obviously
only the first step toward extending to state civil proceedings
generally the holding of Younger v. Harris, 401 U. S.
(1971), that federal courts should not interfere with
pending state criminal proceedings except under extraordinary
circumstances. [Footnote 2/1
Similarly, today's holding that the plaintiff in an action under 42
U.S.C. § 1983 may not maintain it without first exhausting state
appellate procedures for review of an adverse state trial court
decision is but an obvious first step toward discard of heretofore
settled law that such actions may be maintained without first
exhausting state judicial remedies.
Younger v. Harris
was basically an application, in the
context of the relation of federal courts to pending state criminal
prosecutions, of "the basic doctrine of equity jurisprudence that
courts of equity . . . particularly should not act to restrain a
criminal prosecution." 401 U.S. at 401 U. S. 43
"The maxim that equity will not enjoin a criminal prosecution
summarizes centuries of weighty experience in Anglo-American law."
Stefanelli v. Minard, 342 U. S. 117
342 U. S. 120
(1951). But Younger v. Harris
Page 420 U. S. 614
also a decision enforcing "the national policy forbidding
federal courts to stay or enjoin pending state court [criminal]
proceedings except under special circumstances." 401 U.S. at
401 U. S. 41
See also id.
at 401 U. S. 44
For in decisions long antedating Younger v. Harris,
Court had invested the basic maxim with particular significance as
a restraint upon federal equitable interference with pending state
prosecutions. Not a showing of irreparable injury alone, but of
irreparable injury "both great and immediate," is required to
justify federal injunctive relief against a pending state
prosecution. Fenner v. Boykin, 271 U.
, 271 U. S. 243
(1926); Spielman Motor Sales Co. v. Dodge, 295 U. S.
, 295 U. S. 95
(1935). Injury merely "incidental to every criminal proceeding
brought lawfully and in good faith" is not irreparable injury that
justifies an injunction. Douglas v. City of Jeannette,
319 U. S. 157
319 U. S. 164
(1943). See also Dombrowski v. Pfister, 380 U.
, 380 U. S. 485
(1965). The line of decisions culminating in Younger v.
reflects this Court's longstanding recognition that
equitable interference by federal courts with pending state
prosecutions is incompatible in our federal system with the
paramount role of the States in the definition of crimes and the
enforcement of criminal laws. Federal court noninterference with
state prosecution of crimes protects against "the most sensitive
source of friction between States and Nation." Stefanelli v.
at 342 U. S.
The tradition, however, has been quite the opposite as respects
federal injunctive interference with pending state civil
proceedings. Even though legislation as far back as 1793 has
provided in "seemingly uncompromising language," Mitchum v.
Foster, 407 U. S. 225
407 U. S. 233
(1972), that a federal court "may not grant an injunction to stay
proceedings in a State court" with specified exceptions,
28 U.S.C. § 2283, the Court has consistently
Page 420 U. S. 615
exceptions upon the prohibition. Many, if not most, of those
exceptions have been engrafted under the euphemism "implied." The
story appears in Mitchum v. Foster, supra,
at 407 U. S.
-236. Indeed, when Congress became concerned that the
Court's 1941 decision in Toucey v. New York Life Ins. Co.,
314 U. S. 118
forecast the possibility that the 1793 Act might be enforced
according to its literal terms, Congress amended the Act in 1948
"to restore the basic law as generally understood and
interpreted prior to the Toucey decision.'" Mitchum v.
Foster, supra, at 407 U. S.
Thus, today's extension of Younger v. Harris
clock back, and portends once again the resuscitation of the
literal command of the 1793 Anti-Injunction Act -- that the state
courts should be free from interference by federal injunction even
in civil cases. This not only would overrule some 18 decades of
this Court's jurisprudence, but would heedlessly flout Congress'
evident purpose in enacting the 1948 amendment to acquiesce in that
The extension also threatens serious prejudice to the potential
federal court plaintiff not present when the pending state
proceeding is a criminal prosecution. That prosecution does not
come into existence until completion of steps designed to safeguard
him against spurious prosecution -- arrest, charge, information, or
indictment. In contrast, the civil proceeding, as in this case,
comes into existence merely upon the filing of a complaint, whether
or not well founded. To deny by fiat of this Court the potential
federal plaintiff a federal forum in that circumstance is obviously
to arm his adversary (here the public authorities) with an easily
wielded weapon to strip him of a forum and a remedy that federal
statutes were enacted to assure him. The Court does not escape this
consequence by characterizing the state civil proceeding
Page 420 U. S. 616
here as "in aid of and closely related to criminal statutes."
The nuisance action was brought into being by the mere filing of
the complaint in state court, and the untoward consequences for the
federal plaintiff were thereby set in train without regard to the
connection, if any, of the proceeding to the State's criminal
Even if the extension of Younger v. Harris
state civil proceedings can be appropriate in any case, and I do
not think it can be, [Footnote 2/2
it is plainly improper in the case of an action by a federal
plaintiff, as in this case, grounded upon 42 U.S.C. § 1983.
] That statute serves
a particular congressional objective long recognized and enforced
by the Court. Today's extension will defeat that objective. After
the War Between the States, "nationalism dominated political
thought, and brought with it congressional investiture of the
federal judiciary with enormously increased powers."
Page 420 U. S. 617
389 U. S. 241
389 U. S. 246
(1967). Section 1983 was enacted at that time as § 1 of the Civil
Rights Act of 1871, 17 Stat. 13. 389 U.S. at 389 U. S. 247
That Act, and the Judiciary Act of 1875, which granted the federal
courts general federal question jurisdiction, completely altered
Congress' pre-Civil War policy of relying on state courts to
vindicate rights arising under the Constitution and federal laws.
389 U.S. at 389 U. S.
-246. These statutes constituted the lower federal
courts "the primary and powerful reliances for vindicating
every right given by the Constitution, the laws, and treaties of
the United States.'" Steffel v. Thompson, 415 U.
S. 452, 415 U. S. 464
(1974). The fact, standing alone, that state courts also must
protect federal rights can never justify a refusal of federal
courts to exercise that jurisdiction. Zwickler v. Koota,
supra, at 389 U. S. 248.
This is true notwithstanding the possibility of review by this
Court of state decisions, for,
"even when available by appeal, rather than only by
discretionary writ of certiorari, [that possibility] is an
inadequate substitute for the initial District Court determination
. . . to which the litigant is entitled in the federal courts."
England v. Louisiana State Board of Medical Examiners,
375 U. S. 411
375 U. S. 416
Consistently with this congressional objective of the 1871 and
1875 Acts, we held in Monroe v. Pape, 365 U.
, 365 U. S. 183
(1961), that a federal plaintiff suing under § 1983 need not
exhaust state administrative or judicial remedies before filing his
action under § 1983 in federal district court. "The federal remedy
is supplementary to the state remedy, and the latter need not be
first sought and refused before the federal one is invoked."
The extension today of Younger v. Harris
require exhaustion in an action under § 1983 drastically undercuts
Monroe v. Pape
and its numerous progeny -- the mere filing
of a complaint against a potential § 1983 litigant forces him to
exhaust state remedies.
Page 420 U. S. 618
Mitchum v. Foster, supra,
holding that actions under §
1983 are excepted from the operation of the federal anti-injunction
statute, 28 U.S.C. § 2283, is also undercut by today's extension of
canvassed the history of § 1983
and concluded that it extended "federal power in an attempt to
remedy the state courts' failure to secure federal rights." 407
U.S. at 407 U. S. 241
prompted the comment that, if Younger v.
were extended to civil cases,
"much of the rigidity of section 2283 would be reintroduced, the
significance of Mitchum
for those seeking relief from
state civil proceedings would largely be destroyed, and the
recognition of section 1983 as an exception to the Anti-Injunction
Statute would have been a Pyrrhic victory. [Footnote 2/4
Today's decision fulfills that gloomy prophecy. I therefore
dissent from the remand, and would reach the merits.
MR. JUSTICE DOUGLAS, while joining in the opinion of MR. JUSTICE
BRENNAN, wishes to make clear that he adheres to the view he
expressed in Younger v. Harris, 401 U. S.
, 401 U. S. 58
(1971) (dissenting opinion), that federal abstention from
interference with state criminal prosecutions is inconsistent with
demands of our federalism where important and overriding civil
rights (such as those involved in the First Amendment) are about to
The Court reaches the Younger
issue although appellants
did not plead Younger
in the District Court. Yet the Court
implies that Younger
is not a jurisdictional matter, since
we allowed the parties to waive it in Sosna v. Iowa,
419 U. S. 393
at 420 U. S. 595
n. 1. In that circumstance, I address the Younger
solely to respond to the Court's treatment of it.
Abstention where authoritative resolution by state courts of
ambiguities in a state statute is sufficiently likely to avoid or
significantly modify federal questions raised by the statute is
another matter. Abstention is justified in such cases primarily by
the policy of avoidance of premature constitutional adjudication.
The federal plaintiff is therefore not dismissed from federal
court, as he is in Younger
cases. On the contrary, he may
reserve his federal questions for decision by the federal district
court, and not submit them to the state courts. England v.
Louisiana State Board of Medical Examiners, 375 U.
(1964). Accordingly, retention by the federal
court of jurisdiction of the federal complaint pending state court
decision, not dismissal of the complaint, is the correct practice.
Lake Carriers' Assn. v. MacMullan, 406 U.
, 406 U. S.
Title 42 U.S.C. § 1983 provides:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."
Note, The Supreme Court, 1971 Term, 86 Harv.L.Rev. 50, 217-218