Doe v. Randall
314 F. Supp. 32
D. Minnesota
1970
Check Treatment

*1 groups all racial evidence case the assistance being provided relocation

are ex- same basis any view, my valid precludes, in

tent question on this facet constitutional controversy. allegations conclude pro- assistance to the relocation relative statutory gram and constitu- on both the merit, grounds without

tional

accordingly are entitled the defendants judgment on the issues and com- opin-

plaint be dismissed. This my findings of ion filed as fact pre- will be law on

and conclusions of sented, issues appro- and counsel submit an

priate opinion incorporating order

by reference therein. Hodg Doe, E.

John Jane DOE Plaintiffs, son, al., M.D. et County RANDALL, Ramsey At Douglas Head, torney, and Minnesota, Le General of Harold Minnesota, Vander, Defend Governor

ants.

No. 3-70-Civ-97. Minnesota, D.

Third Division.

May

Rehearing 1, 1970. July Denied *2 Minn., practicing Perry, Minneapolis, Four medical doctors R. Stewart Minnesota, profession in Fred E. Meck- plaintiffs. lenburg, Andreini, Barno Paul H. Alex Randall, pro se. McKelvey, and John seek to intervene Gen., Atty. Kenefick, Asst. St. John constitutionality support of the Douglas Minn., Har- Paul, Head and *3 Anti-Abortion statutes. old LeVander. pend. Several motions We first con- Brenner, Hayes, Louis Lawrence J. motion to sider defendants’ dismiss. Wozniak, Minn., Paul, D. St. and Daniel objections urged major by Two petitioning interveners. of Minnesota and its officers State Judge, VOGEL, entertaining First, Before Circuit to our Senior this action. Judge, urged DEVITT, improper and District it is that it is for the Chief Judge. NEVILLE, to District act in this state crim- Federal matter, inal that and we should therefore apply of the doctrine abstention. Sec- OF DISMISSAL ORDER urged ondly, it is there is an absence required Judge. of DEVITT, “case or Chief under the Constitution of In this action for a declaration “justiciable controversy,” under the unconstitutionality of the Minnesota Declaratory Law. Statutes, M.S.A. 617.18 Anti-Abortion §§ opposed Federal is to Federal injunction against 617.19, and for an intervention in State The Con- affairs. enforcement, move the defendants gress expressly prohibited the issu- for dismissal. injunction, stay proceed- ance of an “to Hodgson, a Plaintiff Jane E. medical ings in a State court.” 28 U.S.C.A. 2283. doctor, performed upon an abortion statutory This has been the of the law name), (a Doe fictitious Jane (Act United States since 1793. of March pregnant, then 12 weeks St. about 1793, 22, 5, Chaper 2, also found Sec. Paul, April Minnesota on 1970.1 It 334.) in 1 Stat. alleged exposed Doe to is was Anti-Injunction While (German during measles) preg- rubella prohibit injunction not- Statute does an nancy, exposure and that such created a against a state officer who is about to probability of deform- substantial foetal proceedings institute criminal to enforce ity expected to the child. an unconstitutional statute where law to Minnesota makes it crime oc- “chilling upon effect” the exercise of an abortion or to submit to an casion rights may First Amendment derive necessary except pre- it to abortion be prosecution, from the fact of the unaf life of mother or child. serve prospects fected of its success 617.18, 617.19. M.S.A. §§ failure,” Dombrowski v. (a name) Plaintiff John Doe fictitious 479 at S.Ct. 1116 at the husband The other is of Jane Doe. 22, 1965, it is clear that no such plaintiffs three are medical doctors. “chilling effect” under the First Amend present type Defendant Randall is the ment of action. prosecuting Ramsey holding of That officer was the the United County, City within which the of St. States District Court the Eastern duty prose- Paul located. is his to of Bab Wisconsin McCann, cute F.Supp. violations state criminal bitz laws. v. filed on The Governor General March That court refused injunction. Minnesota are named also defendants. an issue sup Statutes, 1. This from an amended and of the Anti-Abortion was filed plemental complaint plaintiffs. April 16, 1970, The before abortion filing. original performed. Court allows its com was plaint, unconstitutionality challenging the traditional line of ceedings las v. Courts 2d 157, 63 Dollinger, 1961, 390. See also numerous cases City as is interfere reluctance Jeannette, amply 87 L.Ed. in State criminal reflected Cleary decisions. a consistent the Federal 385, 9 L.Ed. in a 319 U.S. Pugach Bolger, Doug cited long pro ent the Dombrowski “prevent prevent page clear [87 in a ease such as Jeannette, interposition L.Ed. and imminent.’ irreparable injury” 1324]. exception supra, S.Ct. [877] this, according ” injury here Douglas U.S. [157] quoted at is not noted, page 881, which is equity v. supra. pres City at Ed.), suggested objection (Wright The second in 1 Barron and Holtzoff 46 at n. 96. maintenance of this Section action *4 Declaratory Judgments Federal the Law expression In the most recent controversy” the absence a or “case subject, the the United States as that term in is used the United States Court, Dombrowski, supra,, in said: Constitution, Article III, Section or recognized “The Court has fed- “justiciable a as both of good- eral interference with a State’s by those terms have been defined numer faith administration its criminal ous decisions of the United Su States peculiarly laws is inconsistent with preme particularly Court. Public general- our federal framework. It is Wycoff Service Commission of Utah v. ly to be assumed that state courts and Company, 344 U.S. 73 97 prosecutors will observe constitutional (1952), L.Ed. 291 and United Public expounded by limitations as (CIO), Workers of America Mitchell v. possibility and that the mere of erro- 67 S.Ct. 91 L.Ed. 754 application neous initial of constitu- (1947). usually tional standards will not fully sug We subscribe to irreparable injury amount nec- gested infirmity plaintiffs’ asserting in essary justify disruption a to of or- their addition, claims here. In the De derly proceedings.” state claratory specifically Act re principle expressed was quires controversy,” an “actual 28 U.S.C. by High earlier the Court a in decision Also, discretionary A. the au Whittaker, written Mr. Justice Wil- thority of the to an ac entertain Schnettler, son v. implicit tion is in the use of the word (1961), involving 5 L.Ed.2d 620 also “may.” Donovan, D.C., See Mitchell v. requested injunction against suggest- F.Supp. argued p. 300 1145 at 1147, 1148, prosecution ed State under the State awaiting decision in the United criminal laws. Supreme Court, exposi States for a fuller The Court there said: tion of our views. jurisdiction “We live in the of two It will be recalled that in all the re- sovereigns. sys- Each has its own jurisdictions cent cases from other in- tem interpret volving courts to and en- constitutionality the Abortion laws, although force its Statutes, in wit, common California, People to in territory. per- These Belous, Cal., courts could not Cal.Rptr. v. 80 458 P.2d respective form their functions with- Wisconsin, in Babbitz v. McCann embarrassing out (E.D.Wis.) 5, 1970; conflicts unless filed March in the adopted rules were Columbia, avoid them. District of * ** adopted. Such Vuitch, rules have F.Supp. (1969); 305 Federal Massachusetts, courts should not exercise v. Brunel- Commonwealth discretionary power le, Sup. ‘to inter- #83879; South Dakota, fere with or Munson, embarrass unreported, threatened State v. proceedings 4/10/70; in state courts save in there was an actual “case exceptional those controversy,” “justicable cases which call for controver- declaratory judgment return of statute. Insofar sy,” clearly presented the majority opinion is bottomed on here. is not Such an indictment. “absention”, however, I hesi- doctrine returned. has been No indictment agree. tate the abortion not been Had noteworthy that all these It is also performed, question not have would by the Courts decided cases were justiciable moot con- become and thus a McCann, except and there Babbitz v. troversy would would exist. enjoin a state refused Federal Court hold that under circumstances those prosecution. criminal teachings philosophy and of Dombrowski seeking client for his counsel Koota, (1965); Zwickler v. wrong is a Involved court. stat Governor, ute, a state a state cases, (1967), and other the doctrine General, prosecutor, and a state a state bar, should not serve as a abstention upon which the enforcement lawof ought juris- and the court had take impunity not with federal courts impinge. present pos- diction of the In the cause. case, however, we in reali- ture of the are highly competent ty nothing to do but render an ad- asked judges fully qualified and available visory opinion. exigency has dis- issue, pass on and each this state-oriented appeared con- and the harm judges of those is as committed as *5 templated, gone. be, if such it upholding the we to United States Con- prosection is Once a criminal stitution. commenced, may may it that or not be statute, adequate an the is prohibit in- 2283 will federal U.S.C. § Declaratory Act, M.S.A. brought § prosecutions un- with terference plaintiffs seq. 555.01 et may the which any der state criminal laws. Prior to requested the and obtain the however, prosecution, I such subscribe will decision thereon “have the and force profes- the that view the entire medical judgment.”' effect of final a pregnant and sion innumerable women live under the of The sword Damocles. adequate Thus relief is available judgment, of their through exercise best medical plaintiffs the De- either State giving pregnants’ claratory Judgments the of the through advice and Act or the of the freedom choice is “chilled” prosecution Courts in a criminal if cloud of a which every statute renders one is We have confi- instituted. illegal puts jeopardy them in plaintiffs' actions dence that constitutional prosecution of criminal with result- fairly the claims will be considered publicity, possible public disgrace, ant decided the state courts. hospital privileges, of li- loss of threat We are satisfied the that jurisdiction Federal court revocation, cense etc. The constitutional- should not assert either to brought ity properly of the statutes was amake declaration to the constitu- as into the federal forum for tion, determina- tionality of the Minnesota or to Statutes agree I now must be dismissed but enjoin possible prosecu- state criminal only justiciable for lack of a contro- but tion under them. versy. complaint The is dismissed. REHEARING PETITION FOR Judge, ON VOGEL, Senior Circuit dis- sents. PER CURIAM. May case dismissed this We NEVILLE, Judge (concurring 1970. result). rehearing. petition Plaintiffs I concur the result because I believe by af appear,

there is It made no is “case within counsel, a state Article of III 2 of the fidavit Con- § returned stitution, been has now court nor indictment there an “actual con- is charg- Hodgson troversy” against E. under 28 the U.S.C. § petition rehearing Anti-Abortion ing the is a violation of changed urged these It is Law. Denied. granting the merit circumstances VOGEL, Judge (con- Senior Circuit rehearing. curring separately): grant inappropriate it believe We agree present opin I with the court’s rehearing upon events petition for am, however, compelled I ion. to add transpired dismissal since have which my prior a word to make clear dissent may be that the well of action. It when case was an dismissed. Once support will return indictment returned, indictment I feel the stat action, but a new and different cause utory mandate of 28 U.S.C.A. for a re- not furnish the basis it does comity require principles and the previously hearing of dismiss- the action federal court abstain. A ed. competent jurisdiction then has control controversy. this, cases, the- regardless In do such But we not be- jurisdiction only rehearing. believe our grant lieve we limited prosecutions directly that, to bad faith of the re- af result fecting indictment, exercise of First turn of constitu- Amendment tionality freedoms. Johnson, Cameron Anti-Abor- the Minnesota put Law now issue be- 20 L.Ed.2d tion County Dombrowski Ramsey fore the State District Arguments 14 L.Ed.2d 22. Court. have been made pronouncement appeal recent An the issue awaits decision. Su preme Court lends credence to this is con- view. Minnesota templated. Atlantic Coastline R. Brother v.Co. Engineers, hood Locomotive No. prohibits specially our The law issuing injunction in these circum an Moreover, practical as a mat pro stances, and this 28 U.S.C. § *6 ter, juris once a court taken grant by the cannot be avoided hibition fully diction of a constitutional issue declaratory judgment because aof litigated it, grave before I have doubts comity federal principles Three-Judge that a ever take Briley, F. pertain. 274 Brooks v. ism forcing plaintiff without (a (M.D.Tenn.1967) 538, Supp. de 553 waive his constitutional claims in the court), three-judge aff’d cision England state courts. See v. Louisiana 1671, 361, curiam, per Examiners, 1964, of Medical Board (1968). also Mc 647 20 L.Ed.2d 375 U.S. 11 (2d Palmer, 239 Cir. F.2d 427 Lucas 1970). however, indictment, be- Prior I The United more is allotted lieve the federal court us that— counselled long leeway as to intervene. So “Proceedings courts in state alleges federal violations normally unim- to continue be allowed harm, rights coupled with the lower paired intervention stay I our hand when see no reason to error, courts, from federal with unambiguous. clear the state law through appellate any, the state if Forssenius, See Harmon v. ultimately this Court.” courts S.Ct. 14 L.Ed.2d Brothe Co. v. Line RR Atlantic Coast Mann, Davis v. Engineers, of Locomotive r hood 12 L.Ed.2d (A.F.L.- of America Steel Workers (1970). C.I.O.) Bagwell, Cir., F.2d 492, 495. re-empha- very decision recent This practice explana- main- With these reservations federal sizes settled tions, pending present taining re- concur a hands-off sult. proceedings.