ELLIS ET AL. v. DYSON ET AL.
No. 73-130
Supreme Court of the United States
Argued November 12, 1974—Decided May 19, 1975
421 U.S. 426
Douglas H. Conner argued the cause for respondents. With him on the brief was N. Alex Bickley.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This action, instituted in the United States District Court for the Northern District of Texas, challenges the constitutionality of the loitering ordinance of the city of Dallas. We do not reach the merits, for the District Court dismissed the case under the compulsion of a procedural precedent of the United States Court of Appeals for the Fifth Circuit which we have since reversed.
I
Petitioners Tom E. Ellis and Robert D. Love, while in an automobile, were arrested in Dallas at 2 a. m. on January 18, 1972, and were charged with violating the city‘s loitering ordinance. That ordinance, § 31-60 of the 1960 Revised Code of Civil and Criminal Ordinances of the City of Dallas, Texas, as amended by Ordinance No. 12991, adopted July 20, 1970, provides:
“It shall be unlawful for any person to loiter, as hereinafter defined, in, on or about any place, public or private, when such loitering is accompanied by activity or is under circumstances that afford probable cause for alarm or concern for the safety and well-being of persons or for the security of property, in the surrounding area.”
The term “loiter” is defined to
“include the following activities: The walking about aimlessly without apparent purpose; lingering; hanging around; lagging behind; the idle spending of
time; delaying; sauntering and moving slowly about, where such conduct is not due to physical defects or conditions.”
A violation of the ordinance is classified as a misdemeanor and is punishable by a fine of not more than $200.
Before their trial in the Dallas Municipal Court1 petitioners sought a writ of prohibition from the Texas Court of Criminal Appeals to preclude their proseсution on the ground that the ordinance was unconstitutional on its face. App. 29. The petitioners contended, in particular, that § 31-60 is vague and overbroad, that it “permits arrest on the basis of alarm or concern only,” and that it allows the offense to be defined “upon the moment-by-moment opinions and suspicions of a police officer on patrol.” App. 31. The Court of Criminal Appeals, however, denied the application without opinion on February 21, 1972.2 The following day the Municipal Court proceeded to try the case. After overruling petitioners’ motion to dismiss the charges on the grounds of the ordinance‘s unconstitutionality, the court accepted their pleas of nolo contendere3 and fined each petitioner $10 plus $2.50 costs.
Electing to avoid the possibility of the imposition of a larger fine by the County Court than was imposed by the Municipal Court, petitioners brought the present federal action5 under the civil rights statutes,
The petitioners moved for summary judgment upon the pleadings, admissions, affidavits, and “other matters of record.” App. 42. The respondents, in turn, moved to dismiss and suggested, as well, “that the abstention doctrine is applicable.” Id., at 58. The District Court held that federal declaratory and injunctive relief against future state criminal prosecutions was not available where there was no allegation of bad-faith prosecution, harassment, or other unusual circumstances presenting a likelihood of irreparable injury and harm to the petitioners if the ordinance were enforced. This result, it concluded, was mandated by the decision of its сontrolling court in Becker v. Thompson, 459 F. 2d 919 (CA5 1972). In Becker, the Fifth Circuit had held that the principles of Younger v. Harris, 401 U. S. 37 (1971), applied not only where a state criminal prosecution was actually pending, but also where a state criminal prosecution was merely threatened. Since the present petitioners’ complaint
II
In Steffel the Court considered the issue whether the Younger doctrine should apply to a case where state prosecution under a challenged ordinance was merely threatened but not pending. In that case, Steffel and his companion, Becker, engaged in protest handbilling at a shopping center. Police informed them that they would be arrested for violating the Georgia criminal trespass statute if they did not desist. Steffel ceased his handbilling activity, but his companion persisted in the endeavor and was arrested and charged.
Steffel then filed suit under
Thus, in Steffel, we rejected the argument that bad-faith prosecution, harassment, or other unique and extraordinary circumstances must be shown before federal declaratory relief may be invoked against a genuine threat of state prosecution. Unlike the situation where state prosecution is actually pending, cf. Samuels v. Mackell, 401 U. S. 66 (1971), where there is simply a threatened prosecution, considerations of equity, comity, and federalism have less vitality.9 Instead, the opportunity for adjudication of constitutional rights in a federal forum, as authorized by the Declaratory Judgment Act, becomes paramount. 415 U. S., at 462-463.
Exhaustion of state judicial or administrative remedies in Steffel was ruled not to be necessary, for we have long held that an action under § 1983 is free of that require-
III
The principles and approach of Steffel are applicable here. The District Court and the Court of Appeals decided this case under the misapprehension that the Younger doctrine applied where there is a threatened state criminal prosecution as well as where there is a state criminal prosecution already pending. Those courts had no reason to reach the merits of the case or to determine the actual existence of a genuine threat of prosecution, or to inquire into the relationship between the past prosecution and the threat of prosecutions for similar activity in the future. Now that Steffel has been decided, these issues may properly be investigated.
Second, there is some question on this record as it now stands regarding the pattern of the statute‘s enforcement. Answers to interrogatories reveal an average of somewhat more than two persons per day were arrested in Dallas during seven specified months in 1972 for the statutory loitering offense. App. 68. Of course, on remand, the District Court will find it desirable to examine the current enforcement scheme in order to determine whether, indeed, there now is a credible threat that petitioners, assuming they are physically present in Dallas, might be arrested and charged with loitering. A genuine threat must be demonstrated if a case or controversy, within the meaning of Art. III of the Constitution and of the Declaratory Judgment Act, may be said to exist. See Steffel v. Thompson, 415 U. S., at 458-460. See gen-
Because of the fact that the District Court has not had the opportunity to consider this case in the light of Steffel, and because of our grave reservations about the existence of an actual case or controversy, we have concluded that it would be inappropriate for us to touch upon any of the other complex and difficult issues that the case otherwise might present. The District Court must determine that the litigation meets the threshold requirements of a case or controversy before there can be resolution of such questions as the interaction between the past prosecution and the threat of future prosecutions, and of the potential considerations, in the context of this case, of the Younger doctrine, of res judicata, of the plea of nolo contendere, and of the petitioners’ failure to utilize the state appellate remedy available to them. Expunction of the records of the arrests and convictions and the nature of corrective action with respect thereto is another claim we do not rеach at this time.
The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion. No costs are allowed.
It is so ordered.
MR. JUSTICE REHNQUIST, concurring.
I join the opinion of the Court, and add these few words only to indicate why I believe the Court is quite correct in leaving to the District Court on remand the issues treated in the dissenting opinion of my Brother POWELL and the concurring and dissenting opinion of my Brother WHITE.
Later this Court, in Steffel v. Thompson, 415 U. S. 452 (1974), reversed the decision of the Court of Appeals which that court and the District Court had regarded as dispositive of this case. In Steffel, we held that Younger v. Harris, 401 U. S. 37 (1971), did not bar access to the District Court when the plaintiff sought only declaratory relief and no state proceeding was pending, but the Court also emphasized that petitioner must present “an ‘actual controversy,’ a requirement imposed by Art. III of the Constitution.” 415 U. S., at 458. Properly viewed, therefore, a remand for reconsideration in light of Steffel directs the District Court to consider whether the requisite case or controversy was and is presented, as well as to determine the appropriateness of declaratory relief.
I believe the Court‘s remand to the District Court, which will give that court an opportunity to reconsider the jurisdictional issues within the framework of Steffel and to pass in the first instance on the other issues that
MR. JUSTICE WHITE, concurring in part and dissenting in part.
I join the opinion of the Court except insofar as it fails to affirm the dismissal in the courts below of petitioners’ prayer for a mandatory injunction requiring the expunction of their criminal records. With respect to that issue, the prerequisite of a case or controversy is clearly present; but under Younger v. Harris, 401 U. S. 37 (1971), the District Court was plainly correct in dismissing the claim rather than ruling on its merits. Huffman v. Pursue, Ltd., 420 U. S. 592 (1975), would appear to require as much.
MR. JUSTICE POWELL, with whom MR. JUSTICE STEWART joins, and THE CHIEF JUSTICE joins as to Part II, dissenting.
Petitioners were convicted in Dallas, Tex., Municipal Court, on pleas of nolo contendere, of violating the city‘s loitering ordinance. They were fined $10 each. Under Texas law petitioners had the right to a trial de novo in the County Court. Appellate review of an adverse County Court judgment imposing a fine in excess of $100 would have been available in the Texas Court of Criminal Appeals. A determination by the highest state court in which a decision could be had, if it upheld the constitutionality of the ordinance, would have been appealable to this Court.
In its decision today, relying on Steffel v. Thompson, 415 U. S. 452 (1974), the Cоurt reverses the decision of the Court of Appeals and remands the case for further consideration of petitioners’ request for declaratory relief. The Court also finds it unnecessary to consider petitioners’ prayer for expunction. I am in disagreement on both points. I would hold that any relief as to petitioners’ previous arrests and convictions is barred by their nolo contendere pleas, equivalent under Texas law to pleas of guilty,2 and by their deliberate decision to forgo state appellate remedies. As to prospective relief, I think that Steffel and the general principles of justiciability to which it adheres require affirmance, not a reversal and remand. In view of the undisputed facts in this case, we should decide these issues now. The ends of justice will not be served by a remand and further litigation. More-
I
I turn first to the retrospective relief sought by petitioners: thеir prayer for an order expunging the records of their arrests and convictions. The question raised by this prayer is whether a plaintiff may resort to § 1983 to attack collaterally his state criminal conviction when he has either knowingly pleaded guilty to the charge or failed to invoke state appellate remedies. This issue was raised in the courts below,3 decided by those courts,4 and argued to this Court.5 As the Court recognizes, ante, at 435, this issue is unaffected by our decision in Steffel, which is relevant only to petitioners’ request for prospective relief. Moreover, even if the case is moot insofar as it concerns prospective relief because petitioners no longer live in Dallas, that fact has no bearing on petitioners’ request for expunction. Thus, I can see no justification for deferring resolution of this important issue.
The Court has never expressly decided whether and in what circumstances § 1983 can be invoked to attack collaterally state criminal convictions. The resolution of this general problem depends on the extent to which, in a § 1983 action, principles of res judicata bar relitigation in federal court of constitutional issues decided in state judicial proceedings to which the federal plaintiff was a party. But we need not resolve this general problem here.6 For even assuming, arguendo, that the scope of
Metros v. United States District Court for the District of Colorado, 441 F. 2d 313 (CA10 1970). But cf. Ney v. California, 439 F. 2d 1285, 1288 (CA9 1971). The general principle that final judgments have res judicata effect and are binding on the parties is, of course, subject to the qualification that void judgments may be collaterally impeached. Restatement, Judgments § 11 (1942). Moreover, the question whether a judgment is void—i. e., “without res judicata effect for purposes of the matter at hand“—depends, absent any indication of contrary congressional intent, on the nature of the defect alleged and the gravity of the harm asserted, viewed in light of the powerful public interest in finality of litigation. Schlesinger v. Councilman, 420 U. S. 738, 752-753 (1975). This general analysis applies as much to the scope of collateral attack in habeas corpus proceedings as to the scope of collateral attack in other federal civil actions. See Schneckloth v. Bustamonte, 412 U. S. 218, 256-275 (1973) (POWELL, J., concurring). In my view, the harm asserted in habeas corpus proceedings—restraint on liberty—may justify a broader scope of collateral attack than would the kinds of injury normally concerned in actions under § 1983.
These established principles of federal habeas corpus jurisdiction should apply with at least equal force to attempts under § 1983 collaterally to attack state criminal
II
With respect to petitioners’ request for a declaration that the Dallas ordinance is unconstitutional and cannot be applied to them in the future, the Court holds that “[t]he principles and approach of Steffel are applicable” and remands for reconsideration in light of our opinion in that case. Ante, at 433, 434. In my view, this disposition seriously misreads our opinion in Steffel. It ignores the necessity, fully recognized in Steffel, that a complaint make out a justiciable case or controversy, the indispensable condition under Art. III to the exercise of federal judicial power.
A
The question, insofar as petitioners seek prospective relief, is whether the challenge to the constitutionality of the Dallas ordinance was presented, at the time the complaint was filed, in the context of a live controversy between the parties:
“Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient imme-
diacy and reality to warrant the issuance of a declaratory judgment.” Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941).
This test was met in Steffel. It is not even arguably met in this case.
The undisputed facts in Steffel showed that petitioner faced an imminent prospect of arrest and prosecution under the challenged state statute. He previously had engaged in distributing handbills at a shopping center, and on two occasions had been threatened with arrest if he continued his activity. On the second occasion, petitioner avoided arrest only by leaving the premises. His companion, who did not leave, was arrested and arraigned on a charge of criminal trespass. The parties stipulated that “if petitioner returned [to the shopping center] and refused upon request to stop handbilling, a warrant would be sworn out and he might be arrested and charged with a violation of thе Georgia statute.” 415 U. S., at 456. In light of these facts we said:
“[P]etitioner has alleged threats of prosecution that cannot be characterized as ‘imaginary or speculative‘. . . . 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, 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 rights.” Id., at 459.
“The petitioner . . . has succeeded in objectively showing that the threat of imminent arrest, corroborated by the actual arrest of his companion, has created an аctual concrete controversy between himself and the agents of the State.” Id., at 476.
The situation in the present case differs from that in Steffel in controlling respects. Petitioners previously had been arrested for “loitering” at 2 a. m. in a section of the city remote from their residences. Whether these arrests and petitioners’ subsequent convictions could have survived constitutional challenge, had it timely been made, is a matter irrelevant to the present issue. Petitioners’ previous arrests and convictions are relevant to the justiciability of their prayer for prospective relief only if they evidence a realistic likelihood that petitioners may be arrested again and, therefore, that the ordinance causes them real and immediate harm. See O‘Shea v. Littleton, 414 U. S. 488, 496 (1974). These preconditions to the requisite justiciability simply do not exist in this case.
Application of the challenged Dallas ordinance depends, by its terms, on the facts of each case. It is extremely unlikely that the exact sеt of circumstances leading to the previous arrest and conviction of petitioners will ever be repeated. Petitioners’ brief, attempting to accommodate to Steffel‘s rationale, refers vaguely to “petitioners’ fear of arrest and prosecution.”10 Read most generously, however, the complaint and supporting ma-
In several cases we have found constitutional challenges to state and federal statutes justiciable despite the absence of actual threats of enforcement directed personally to the plaintiff. E. g., Doe v. Bolton, 410 U. S. 179, 188-189 (1973); Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498, 506-508 (1972). See CSC v. Letter Carriers, 413 U. S. 548, 551-553 (1973). In each such case, however, the challenged statute applied particularly and unambiguously to activities in which the plaintiff regularly engaged or sought to engage. In each case the plaintiff claimed that the State or Federal Government, by prohibiting such activities, had exceeded substantive constitutional limitations on the reach of its powers. The plaintiffs, therefore, were put to a choice.13 Unless declaratory rеlief was available, they were compelled to choose between a genuine risk of criminal prosecution and conformity to the challenged statute, a conformity that would require them to incur substantial deprivation either in tangible form or in forgoing the exercise of asserted constitutional rights. In such circumstances we have recognized that the challenged statute causes the plaintiff present harm, and that the “controversy is both immediate and real.” Lake Carriers’ Assn., supra, at 508.
Steffel does not depart from this general analysis. The difference between Steffel and the above cases lies in the nature of the statute involved. Steffel concerned a general trespass ordinance that did not, on its face, apply particularly to activities in which Steffel engaged or sought to engage. The statute was susceptible of a multitude of applications that would not even arguably exceed constitutional limitations on state power. But the
The pleadings in this case reveal no like circumstances. They merely aver that the Dallas ordinance has a “chilling” effect on First Amendment rights of speech and association. This averment, moreover, is related not to petitioners spеcifically, but rather to the “citizens of Dallas.”14 While it is theoretically possible that the ordinance may be applied to infringe petitioners’ First Amendment rights, nothing in the facts relating to their respective prior arrests and convictions indicates that the ordinance has been so applied to petitioners or indeed to anyone else. In short, petitioners
C
Petitioners’ pleadings thus failed to demonstrate that they were suffering any “real and immediate” harm consequent to the enforcement of the Dallas ordinance. The Court‘s opinion, however, states that the District
The situation here is similar to that in O‘Shea v. Littleton, supra. In that case, the District Court dismissed the suit both for want of equitable jurisdiction to grant the relief prayed for and on the ground that the defendants were immune from suit. The Court of Appeals for the Seventh Circuit reversed, and we in turn reversed the decision of the Court of Appeals. What we said there is
There being no substantial controversy between the parties, petitioners’ complaint, insofar as it sought prospective relief, should have been dismissed. The Court‘s opinion acknowledges that there is a serious question “whether a case or controversy exists today.” (Emphasis added.) But the Court relates this question to facts, not of record, that have occurred since this suit was filed. Ante, at 434. In view of the concession made at argument that petitioners’ whereabouts are unknown and that counsel was no longer in touch with them,17 there is indeed serious question whether a justiciable controversy now exists. But the critical issue, and one that thе Court declines to address, is whether the petitioners were entitled to invoke federal jurisdiction when they instituted suit.
A determination of present mootness is altogether immaterial to the question whether there was federal jurisdiction at the time declaratory relief initially was
III
I am concerned by the Court‘s failure to decide whether, in the circumstances here, petitioners can attack collaterally their convictions under the ordinance. The Court‘s reticence should not be viewed as endorsing the appropriateness of collateral attack under § 1983 in these or any other circumstances. But this issue was decided by the District Court and, as Mr. Justice Harlan once said in similar circumstances, the Court‘s remand places the District Court “in the uncomfortable position where it will have to choose between adhering to its present decision—in my view a faithful reflection of this Court‘s
Equally important, the reversal and remand of this casе—especially in an opinion stating that “the principles and approach of Steffel are applicable” to petitioners’ request for declaratory relief—are likely to cause federal courts all over the country to think that Steffel must be read as having a far wider application than that decision itself warrants. Such a reading would expand the number and, more importantly, the kinds of occasions in which federal district courts properly can be called upon to issue declarations as to the constitutionality of state statutes. I perceive no reason why we should refrain from deciding the threshold justiciability issue, an issue critical to proper understanding and application of the Steffel decision. Again in the words of Mr. Justice Harlan, dissenting from the remand of a case that arose in the wake of Baker v. Carr, 369 U. S. 186 (1962): “Both the orderly solution of this particular case, and the wider ramifications that are bound to follow in the wake of [Steffel], demand that the Court come to grips now with the basic issue tendered by this case.” Scholle v. Hare, supra, at 435.
In sum, I think the Court should resolve the major issues properly before us, issues as to which there is no factual dispute, rather than delay their resolution, impose unnecessary burdens upon the litigants, and risk widespread uncertainty among the federal judiciary.
Notes
“On the part of the defendant, the following are the only pleadings:
. . . . .
“6. A plea of nolo contendere. The legal effect of such plea shall be the same as that of a plea of guilty, but the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.”
“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.”
In Preiser v. Rodriguez, 411 U. S. 475, 497 (1973), the Court noted that several of the Courts of Appeals had held “res judicata . . . fully applicable to a civil rights action brought under § 1983” and that neither state convictions that do not result in confinement nor state civil judgments can be collaterally impeached in federal courts. Indeed, most of the Circuits have considered this question, either in the context of a prior state-court civil or criminal judgment, and each has so ruled. See Mastracchio v. Ricci, 498 F. 2d 1257 (CA1 1974), cert. denied, 420 U. S. 909 (1975); Lackawanna Police Benevolent Assn. v. Balen, 446 F. 2d 52 (CA2 1971); Kauffman v. Moss, 420 F. 2d 1270 (CA3), cert. denied, 400 U. S. 846 (1970); Shank v. Spruill, 406 F. 2d 756 (CA5 1969); Coogan v. Cincinnati Bar Assn., 431 F. 2d 1209 (CA6 1970); Williams v. Liberty, 461 F. 2d 325 (CA7 1972); Jenson v. Olson, 353 F. 2d 825 (CA8 1965); Scott v. California Supreme Court, 426 F. 2d 300 (CA9 1970);“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.”
The question is not one of election of judicial fora, as it was in Monroe v. Pape, 365 U. S. 167 (1961), but instead whether a final state-court judgment may be collaterally impeached on grounds that could have been, but deliberately were not, raised in the state court.“The sweeping scope of this ordinance means that no citizen is safe to carry on any conduct at any place in the City of Dallas, unless he can be telepathic and be assured that his behavior does not alarm or concern a police officer.
“The provision is violative of, and has a chilling effect upon, the free exercise of the First Amendment rights of Freedom of Association and Assembly, as well as Freedom of Speech, and similar chilling effect upon the fundamental right of Freedom of Movement. Section 31-60 is so sweeping in its potential applicability that any gathering, assembly, speech or other non-criminal behavior may subject the citizens of Dallas to arrest and conviction under its terms.” App. 6-7. (Emphasis added.)