BABBITT, GOVERNOR OF ARIZONA, ET AL. v. UNITED FARM WORKERS NATIONAL UNION ET AL.
No. 78-225
Supreme Court of the United States
Argued February 21, 1979—Decided June 5, 1979
442 U.S. 289
Rex E. Lee, Special Assistant Attorney General of Arizona, argued the cause for appellants. With him on the briefs were Robert Corbin, Attorney General, John A. LaSota, Jr., former Attorney General, Charles E. Jones, Jon L. Kyl, and John B. Weldon, Jr.
MR. JUSTICE WHITE delivered the opinion of the Court.
In this case we review the decision of a three-judge District Court setting aside as unconstitutional Arizona‘s farm labor statute. The District Court perceived particular constitutional problems with five provisions of the Act; deeming these provisions inseparable from the remainder of the Act, the court declared the entire Act unconstitutional and enjoined its enforcement. We conclude that the challenges to two of the provisions specifically invalidated did not present a case or controversy within the jurisdiction of a federal court and hence should not have been adjudicated. Although the attacks on two other provisions were justiciable, we conclude that the District Court should have abstained from deciding the federal issues posed until material, unresolved questions of state law were determined by the Arizona courts. Finally, we believe that the District Court properly reached the merits of the fifth provision but erred in invalidating it. Acordingly, we reverse the judgment of the District Court.
I
In 1972, the Arizona Legislature enacted a comprehensive scheme for the regulation of agricultural employment relations. Arizona Agricultural Employment Relations Act,
Appellees—the United Farm Workers National Union (UFW), an agent of the UFW, named farmworkers, and a supporter of the UFW—commenced suit in federal court to secure a declaration of the unconstitutionality of various sections of the Act, as well as of the entire Act, and an injunction against its enforcement.1 A three-judge District Court was convened to entertain the action. On the basis of past instances of enforcement of the Act and in light of the provision for imposition of criminal penalties for “violat[ion of] any provision” of the Act,
The court also struck down the statute‘s criminal penalty provision,
Finally, the court disapproved a provision construed as mandating compulsory arbitration,
Appellants sought review by this Court of the judgment below. Because of substantial doubts regarding the justiciability of appellees’ claims, we postponed consideration of our jurisdiction to review the merits. 439 U. S. 891 (1978). We now hold that, of the five provisions specifically invalidated by the District Court,10 only the sections pertaining to election of bargaining representatives, consumer publicity, and imposition of criminal penalties are susceptible of judicial resolution at this time. We further conclude that the District Court should have abstained from adjudicating appellees’ challenge to the consumer publicity and criminal penalty provisions, although we think the constitutionality of the election procedures was properly considered even lacking a prior construction by the Arizona courts. We are unable to sustain the District Court‘s declaration, however, that the election procedures are facially unconstitutional.
II
We address first the threshold question whether appellees have alleged a case or controversy within the meaning of Art. III of the Constitution or only abstract questions not currently justiciable by a federal court. The difference between an abstract question and a “case or controversy” is one of degree, of course, and is not discernible by any precise test.
A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute‘s operation or enforcement. O‘Shea v. Littleton, 414 U. S. 488, 494 (1974). But “[o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough.” Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923); see Regional Rail Reorganization Act Cases, 419 U. S. 102, 143 (1974); Pierce v. Society of Sisters, 268 U. S. 510, 526 (1925).
When contesting the constitutionality of a criminal statute, “it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U. S. 452, 459 (1974); see Epperson v. Arkansas, 393 U. S. 97 (1968); Evers v. Dwyer, supra, at 204. When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Doe v. Bolton, 410 U. S. 179, 188 (1973). But “persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.” Younger v. Harris, 401 U. S. 37, 42 (1971); Golden v. Zwickler, 394 U. S. 103 (1969). When plaintiffs “do not claim that they have ever
Examining the claims adjudicated by the three-judge court against the foregoing principles, it is our view that the challenges to the provisions regulating election procedures, consumer publicity, and criminal sanctions—but only those challenges—present a case or controversy.11 As already noted, appellees’ principal complaint about the statutory election procedures is that they entail inescapable delays and so preclude conducting an election promptly enough to permit participation by many farmworkers engaged in the production of crops having short seasons. Appellees also assail the assertedly austere limitations on who is eligible to participate in elections under the Act. Appellees admittedly have not invoked the Act‘s election procedures in the past nor have they expressed any intention of doing so in the future. But, as we see it, appellees’ reluctance in this respect does not defeat the justiciability of their challenge in view of the nature of their claim.
Appellees insist that agricultural workers are constitutionally entitled to select representatives to bargain with their employers over employment conditions. As appellees read the statute, only representatives duly elected under its provisions may compel an employer to bargain with them. But
Even though a challenged statute is sure to work the injury alleged, however, adjudication might be postponed until “a better factual record might be available.” Regional Rail Reorganization Act Cases, supra, at 143. Thus, appellants urge that we should decline to entertain appellees’ challenge until they undertake to invoke the Act‘s election procedures. In that way, the Court might acquire information regarding how the challenged procedures actually operate, in lieu of the predictive evidence that appellees introduced at trial.12 We
Appellees’ twofold attack on the Act‘s limitation on consumer publicity is also justiciable now. Section 23-1385 (B)(8) makes it an unfair labor practice “[t]o induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by the use of dishonest, untruthful and deceptive publicity.” And violations of that section may be criminally punishable.
The record shows that the UFW has actively engaged in consumer publicity campaigns in the past in Arizona, and appellees have alleged in their complaint an intention to continue to engage in boycott activities in that State. Although appellees do not plan to propagate untruths, they contend—as we have observed—that “erroneous statement is inevitable in free debate.” New York Times Co. v. Sullivan, 376 U. S. 254, 271 (1964). They submit that to avoid criminal prosecution they must curtail their consumer appeals, and thus forgo full exercise of what they insist are their First Amendment rights. It is urged, accordingly, that their challenge to the limitation on consumer publicity plainly poses an actual case or controversy.
Section 23-1385 (B)(8) also is said to limit consumer appeals to those directed at products with whom the labor organization involved has a primary dispute; as appellees construe it, it proscribes “publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name” Appellees challenge that limitation as unduly restricting protected speech. Ap-
We further conclude that the attack on the criminal penalty provision, itself, is also subject to adjudication at this time. Section 23-1392 authorizes imposition of criminal sanctions against “[a]ny person . . . who violates any provision” of the Act. Appellees contend that the penalty provision is unconstitutionally vague in that it does not give notice of what conduct is made criminal. Appellees aver that they have previously engaged, and will in the future engage, in organizing, boycotting, picketing, striking, and collective-bargaining activities regulated by various provisions of the Act.14 They assert that they cannot be sure whether criminal sanctions may be visited upon them for pursuing any such conduct, much of which is allegedly constitutionally protected. As we have noted, it is clear that appellees desire to engage at least in consumer publicity campaigns prohibited by the Act; accordingly, we think their challenge to the precision of the criminal penalty provision, itself, was properly entertained by the District Court and may be raised here on appeal. If the provision were truly vague, appellees should not be expected to pursue their collective activities at their peril.
Appellees’ challenge to the access provision, however, is not justiciable. The provision,
It may be accepted that the UFW will inevitably seek access to employers’ property in order to organize or simply to communicate with farmworkers. But it is conjectural to anticipate that access will be denied. More importantly, appellees’ claim depends inextricably upon the attributes of the situs involved. They liken farm labor camps to the company town involved in Marsh v. Alabama, 326 U. S. 501 (1946), in which the First Amendment was held to operate. Yet it is impossible to know whether access will be denied to places fitting appellees’ constitutional claim. We can only hypothesize that such an event will come to pass, and it is only on this basis that the constitutional claim could be adjudicated at this time. An opinion now would be patently advisory; the adjudication of appellees’ challenge to the access provision must therefore await at least such time as appellees can assert an interest in seeking access to particular facilities as well as a palpable basis for believing that access will be refused.
Finally, the constitutionality of the allegedly compulsory arbitration provision was also improperly considered by the District Court. That provision specifies that an employer may seek and obtain an injunction “upon the filing of a verified petition showing that his agricultural employees are unlawfully on strike or are unlawfully conducting a boycott, or are unlawfully threatening to strike or boycott, and that the
On the record before us, there is an insufficiently real and concrete dispute with respect to application of this provision. Appellees themselves acknowledge that, assuming an arguably unlawful strike will occur, employers may elect to pursue a range of responses other than seeking an injunction and agreeing to arbitrate. Moreover, appellees have never contested the constitutionality of the arbitration clause. They declare that “[t]he three judge court below on its own motion found the binding arbitration provision of § 1393 (B) violative of substantive due process and the Seventh Amendment.” Brief for Appellees 71 n. 153. Appellees, instead, raised other challenges to the statute‘s civil enforcement scheme, which we do not consider on this appeal. See n. 10, supra. It is clear, then, that any ruling on the compulsory arbitration provision would be wholly advisory.
III
Appellants contend that, even assuming any of appellees’ claims are justiciable, the District Court should have abstained from adjudicating those claims until the Arizona courts might authoritatively construe the provisions at issue. We disagree that appellees’ challenge to the statutory election procedures should first be submitted to the Arizona courts, but we think that the District Court should have abstained from considering the constitutionality of the criminal
As we have observed, “[a]bstention . . . sanctions . . . escape [from immediate decision] only in narrowly limited ‘special circumstances.‘” Kusper v. Pontikes, 414 U. S. 51, 54 (1973), quoting Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498, 509 (1972). “The paradigm of the ‘special circumstances’ that make abstention appropriate is a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question.” Kusper v. Pontikes, supra, at 54; see Zwickler v. Koota, 389 U. S. 241, 249 (1967); Harrison v. NAACP, 360 U. S. 167, 176-177 (1959); Railroad Comm‘n v. Pullman Co., 312 U. S. 496 (1941). Of course, the abstention doctrine “contemplates that deference to state court adjudication only be made where the issue of state law is uncertain.” Harman v. Forssenius, 380 U. S. 528, 534 (1965). But when the state statute at issue is “fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question,” id., at 535, abstention may be required “in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication,” id., at 534.
We think that a state-court construction of the provision governing election procedures would not obviate the need for decision of the constitutional issue or materially alter the question to be decided. As we shall discuss, our resolution of the question whether the statutory election procedures are affected with a First Amendment interest at all is dispositive of appellees’ challenge. And insofar as it bears on that matter, the statute is pointedly clear. Accordingly, we perceive no basis for declining to decide appellees’ challenge to the election procedures, notwithstanding the absence of a prior state-court adjudication.
Appellants, themselves, do not argue that the criminal penalty provision is unambiguous. Indeed, they insist that until the provision is enforced “it is impossible to know what will be considered a ‘violatio[n]’ of the Act.” Brief for Appellants 37. Appellants submit that various unfair labor practices, for example, have not been treated as yet as criminal violations.
It is possible, however, that the penalty provision might be construed broadly as applying to all sections of the Act that affirmatively proscribe or command courses of conduct. In terms it reaches “[a]ny person . . . who violates any provision of” the Act. Alternatively, the Arizona courts might conclude that only limited portions of the Act are susceptible of being “violated” and thus narrowly define the reach of the penalty section. In either case, it is evident that the statute is reasonably susceptible of constructions that might undercut or modify appellees’ vagueness attack. It may be that, if construed broadly, the penalty provision
We have noted, of course, that when “extensive adjudications, under the impact of a variety of factual situations, [would be required in order to bring a challenged statute] within the bounds of permissible constitutional certainty,” abstention may be inappropriate. Baggett v. Bullitt, 377 U. S. 360, 378 (1964). But here the Arizona courts may determine in a single proceeding what substantive provisions the penalty provision modifies. In this case, the “uncertain issue of state law [turns] upon a choice between one or several alternative meanings of [the] state statute.” Ibid. Accordingly, we think the Arizona courts should be “afforded a reasonable opportunity to pass upon” the section under review. Harrison v. NAACP, supra, at 176.
The District Court should have abstained with respect to appellees’ challenges to the consumer publicity provision as well. Appellees have argued that Arizona‘s proscription of misrepresentations by labor organizations in the course of appeals to consumers intolerably inhibits the exercise of their
It is reasonably arguable that the consumer publicity provision is susceptible of the construction appellants suggest. Section 23-1385 (B)(8) makes it unlawful “[t]o induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by use of dishonest, untruthful and deceptive publicity.” (Emphasis added.) On its face, the statute does not forbid the propagation of untruths without more. Rather, to be condemnable, consumer publicity must be “dishonest” and “deceptive” as well as untruthful. And the Arizona courts may well conclude that a “dishonest” and “untruthful” statement is one made with knowledge of falsity or in reckless disregard of falsity.16
We further conclude that the District Court should have abstained from adjudicating appellees’ additional contention that the consumer publicity provision unconstitutionally precludes publicity not directed at the products of employers with whom the protesting labor organization has a primary dispute. We think it is by no means clear that the statute in fact prohibits publicity solely because it is directed at the products of particular employers. As already discussed,
“Permissible inducement or encouragement within the meaning of this section means truthful, honest and nondeceptive publicity which identifies the agricultural prod-
uct produced by an agricultural employer with whom the labor organization has a primary dispute. Permissible inducement or encouragement does not include publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name.”
The section nowhere proscribes publicity directed at products of employers with whom a labor organization is not engaged in a primary dispute. It indicates only that publicity ranging beyond a primary disagreement is not accorded affirmative statutory protection The Arizona courts might reasonably determine that the language in issue does no more than that and might thus ameliorate appellees’ concerns.17
Moreover,
Thus, we conclude that the District Court erred in entertaining all aspects of appellees’ challenge to the consumer publicity section without the benefit of a construction thereof by the Arizona courts. We are sensitive to appellees’ reluctance to repair to the Arizona courts after extensive litigation in the federal arena. We nevertheless hold that in this case the District Court should not have adjudicated substantial constitutional claims with respect to statutory provisions that are patently ambiguous on their face.18
IV
The merits of appellees’ challenge to the statutory election procedures remain to be considered. Appellees contend, and the District Court concluded, that the delays assertedly attending the statutory election scheme and the technical limitations on who may vote in unit elections severely curtail appellees’ freedom of association. This freedom, it is said, entails the liberty not only to join or sustain a labor union and collectively to express a position to an agricultural employer, but also to create or elect an organization entitled to invoke the statutory provision requiring an employer to bargain collectively with the certified representative of his em-
Accepting that the Constitution guarantees workers the right individually or collectively to voice their views to their employers, see Givhan v. Western Line Consolidated School Dist., 439 U. S. 410 (1979); cf. Madison School Dist. v. Wisconsin Employment Relations Comm‘n, 429 U. S. 167, 173-175 (1976), the Constitution does not afford such employees the right to compel employers to engage in a dialogue or even to listen. Accordingly, Arizona was not constitutionally obliged to provide a procedure pursuant to which agricultural employees, through a chosen representative, might compel their employers to negotiate. That it has undertaken to do so in an assertedly niggardly fashion, then, presents as a general matter no First Amendment problems.19 Moreover, the Act does not preclude voluntary recognition of a labor organization by an agricultural employer. Thus, in the event that an employer desires to bargain with a representative chosen by his employees independently of the statutory election procedures, such bargaining may readily occur. The statutory procedures need be pursued only if farmworkers desire to designate exclusive bargaining representatives and to compel their employer to bargain—rights that are conferred by statute rather than the Federal Constitution. Accordingly, at this time, we are unable to discern any First Amendment difficulty with the Arizona statutory
Reversed and remanded.
MR. JUSTICE BRENNAN with whom MR. JUSTICE MARSHALL joins, concurring in part and dissenting in part.
I join the opinion of the Court, with the exception that I respectfully dissent from the Court‘s holding that the District Court should have abstained and postponed resolution of appellees’ constitutional challenge to
It must be stressed that “[a]bstention from the exercise of federal jurisdiction is the exception, not the rule. ‘The doctrine of abstention . . . is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. . . . County of Allegheny v. Frank Mashuda Co., 360 U. S. 185, 188-189 (1959).’ Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 813 (1976).” If a state statute is susceptible of a construction that would avoid or significantly alter a constitutional issue, however, abstention is appropriate to avoid needless friction “between federal pronouncements and state policies.” Reetz v. Bozanich, 397 U. S. 82, 87 (1970). But, as the Court today correctly points out, the state statute at issue must be “‘fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question,’ [Harman v. Forssenius, 380 U. S. 528, 535 [1965].]” Ante, at 306. (Emphasis supplied.) This is not the case with
Section 23-1392 provides in part:
“Any person who . . . violates any provision of this
article is guilty of a . . . misdemeanor. The provisions of this section shall not apply to any activities carried on outside the state of Arizona.”
The District Court concluded concerning this provision that “[i]t would appear on [its] face . . . that it cuts across and covers the entire [Arizona Agricultural Employment Relations] Act, not just a limited area where a criminal penalty might be acceptable. It says in plain English that it applies to ‘any person’ and further [that] any person ‘who violates any provision of this article is guilty of a misdemeanor. . . .‘” 449 F. Supp. 449, 453 (Ariz. 1978). The District Court found the provision unconstitutionally overbroad. Ibid.
The District Court is clearly correct that the language of
Abstention is particularly inappropriate with respect to
Even assuming that appellees have the financial resources to pursue this case through the Arizona courts, appellees may