Sandra Lee Becker, Etc., Richard Guy Steffel v. John R. Thompson, Etc.Sandra Lee Becker, Etc., Richard Guy Steffel v. John R. Thompson, Etc.
Lead Opinion
In this appeal we must meet the issue explicitly reserved in Samuels v. Mackell, 1971,
The facts are undisputed. The action takes place at the North DeKalb Shopping Center. It is a large, modern, retail shopping area located in a partially residential, partially small business area of unincorporated North DeKalb County, Georgia. It contains a large parking lot and a totally covered air conditioned building complex housing more than sixty retail tenants surrounded by a wide exterior sidewalk.
Since its opening in 1965 the Center has enforced its regulations against handbilling because it desired to maintain an attractive place for its customers to shop without interference or irritation. The Boy Scouts and local garden clubs are permitted to use the booths inside the Mall for bake sales and to give information concerning their activities.
On October 8, 1970, plaintiffs Steffel, Becker and others stood on the exterior sidewalk of the Center and distributed hand bills informing passersby of a meeting protesting the war in Indochina. The plaintiffs were soon instructed by a Center private security guard that they could not distribute the hand bills and were ordered to leave. When they refused the DeKalb County Police were called. When the police arrived plaintiffs were informed that, if they did not stop distribution of hand bills, they would be arrested. The plaintiffs left and no arrests were made.
On October 10, 1970, an attorney for the plaintiffs asked the manager of the Center to permit them to distribute anti-war handbills. Permission was refused. Nevertheless, Steffel and Becker returned to the Center and again, in an orderly fashion, distributed handbills from the exterior sidewalk while other members of the group made photographs. Steffel and Becker were again advised by the security guard and the Center’s manager that they could not distribute the handbills and that, if they persisted in doing so, they would be arrested. Ultimately the DeKalb County police arrived and told Becker and Stef-fel to discontinue their activity or they would be arrested. Steffel left to avoid arrest. Becker continued to distribute the handbills and was arrested on a
In the court below Steffel testified that he had not returned to the Center to handbill since the time of Becker’s arrest because he did not “want to be arrested that badly.”
Becker and Steffel filed this civil class action for declaratory and injunc-tive relief against Hudgins, the owner of the Center, Reynolds, his agent, Solicitor Thompson and Police Chief Hand of DeKalb County attacking the constitutionality of the Georgia criminal trespass statute as applied to them and their class in the distribution of hand bills at the Center, relying on Amalgamated Food Employees Union v. Logan Valley Plaza, Inc., 1968,
The district court denied Becker’s prayer for injunctive relief on the basis of Younger v. Harris, 1971,
The district court also denied both the injunctive and declaratory relief sought by Steffel, against whom no state criminal prosecution was pending.
Steffel’s argument on brief points up the narrow issue presented on appeal as follows:
The District Court was correct in applying this “bad faith/harassment” test to appellant Steffel’s request for injunctive relief against future threatened state court criminal prosecutions. See for example, Younger v. Harris,401 U.S. at 44-45 [91 S.Ct. 746 ] where the Court stated that “These principles made clear in the Fenner case [Fenner v. Boykin,271 U.S. 240 ,46 S.Ct. 492 ,70 L.Ed. 927 ] [great and immediate irreparable loss required to justify enjoining a state prosecution] have been repeatedly followed and reaffirmed in other cases involving threatened prosecutions, (citing cases including Douglas v. City of Jeannette,319 U.S. 157 , [63 S.Ct. 877 ,87 L.Ed. 1324 ] (1943).
The District Court erred, however, in applying this same stringent test to Appellants’ request for declaratory relief. * * * [A] different balance is to be struck concerning questions of federal-state comity where federal declaratory relief is sought and no state prosecution is pending against the plaintiff.
Stated another way, is the propriety of granting a declaratory judgment concerning threatened future criminal prosecution determined by the same test as the propriety of granting injunctive relief, i. e., bad faith harassment? Younger v. Harris, supra. May we transpose to this case, where no state prosecution was pending, what was said about declaratory relief in Samuels v. Mackell, supra, where a state prosecution was pending:
[T]he same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and * * * where an injunction would be impermissible under*922 these principles, declaratory reliel should ordinarily be denied as well.
Id.
In limine we note that it was emphasized in the “Supreme Court’s February sextet”
While the question was reserved, Younger made it clear beyond peradventure that irreparable injury must be measured by bad faith harassment
In Samuels v. Mackell, supra, it was made unequivocally clear that “ordinarily a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the long standing policy limiting injunctions was designed to avoid.” Id.
If the practical effects of injunctive and declaratory judgment remedies are identical because they result in the disruption of a state’s enforcement of its criminal statutes when a criminal prosecution is pending, and therefore bad faith harassment must be shown before either remedy may issue, and if, as we have seen, the same test of bad faith harassment is prerequisite to injunctive relief in a threatened criminal prosecution, it follows that a like showing must be made for declaratory relief in a threatened prosecution. Although “The holdings of Younger and Samuels are narrow [and] limited to the propriety of declaratory or injunctive relief while state criminal proceedings are pending * * * Justice Black’s discussion of Dombrowski [Dombrowski v. Pfister,
In Wulp v. Corcoran, 1 Cir. 1972,
In our view this not only effectively overrules Ex parte Young, 1908,
It is, of course, self-evident that where state prosecutions were pending Younger and Samuels established a limitation on the use of the Declaratory Judgment Act,
Younger laid great stress upon Buck, supra, that:
Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. “No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity Which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid.” Beal v. Missouri Pacific Railroad Corp.,312 U.S. 45 , 49 [61 S.Ct. 418 , 420,85 L.Ed. 577 ].
There is, of course, no suggestion that the principles enunciated in Buck are not still viable.
If “the propriety of declaratory and injunctive relief should be judged by essentially the same standards”, then in preprosecution cases there must be a showing of bad faith harassment for the granting of declaratory as well as in-junctive relief. Cooley v. Endictor, 5 Cir. 1972,
We conclude that under the circumstances of this case, even though no state prosecution was pending against Steffel, since there was no showing of bad faith harassment, he was not entitled to a declaratory judgment.
The judgment of the district court is Affirmed.
Notes
. Ga.Code § 26-1503 provides:
Criminal trespass * * *
(b) A person commits criminal trespass when lie knowingly and without authority:
(3) Remains upon the land or premises of another person, or * * * after receiving notice from the owner or rightful occupant to depart.
(c) A person convicted of criminal trespass shall be punished as for a misdemeanor. (Acts 1968, pp. 1249, 1285; 1969, pp. 857, 859.)
. At oral argument the Court was informed that Becker’s trial had been indefinitely continued, presumably awaiting the disposition of this appeal.
. LeFlore et al. v. Robinson et. al., 5 Cir, 1971,
. “There may, of course, be extraordinary circumstances in which the necessary ir-’ reparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment.” Younger v. Harris, supra,
Concurrence Opinion
(concurring in result).
I concur in the result reached by the majority. However, on the facts of this case, I feel that nearly all of what the majority has said is unnecessary to a decision in this case, and is thus obiter dictum. Unlike Younger v. Harris,
In short, since I feel that under the facts of this case, Dombrowski itself would not justify federal intervention, I decline the invitation to broaden unnecessarily my decision by speculating on what the Supreme Court may or may not ultimately do.
In Dombrowski v. Pfister, supra, the court held that the allegation of bad faith prosecution stated a claim under
“We hold the abstention doctrine is inappropriate for cases as the present one where, unlike Douglas v. City of Jeannette, statutes are justifiably attacked on their face as abridging free expression, or as applied for the purpose of discouraging protected activities.”380 U.S. at 489-490 ,85 S.Ct. at 1122 .
These same principles were reiterated in Zwickler v. Koota,
Both Dombrowski and Zwickler require that we do not intervene in the ease at bar. We are not dealing with a statute that is facially defective in any way. Moreover, there is nothing in this record that would support a finding that this threatened application of an otherwise valid statute was “for the purpose of discouraging protected activities.” (Another way of saying “for bad faith harassment.”) Thus, this case seems to fall directly under the Supreme Court’s ruling in Cameron v. Johnson,
“. . . not a case in which ‘. . .a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford [appellants] any protection which they could not secure by prompt trial and appeal pursued to this Court.” Cameron at 620,88 S.Ct. at 1340 , citing Douglas v. City of Jeannette,319 U.S. at 164 ,63 S.Ct. at 887 .
This is precisely the situation in the case at bar. I, therefore, feel that we do not need to extend Younger. The issue, as I frame it, is fully cognizable within the parameters of what the Supreme Court has already said. To state, as does the majority, that “in this appeal we must meet the issue explicitly reserved in Samuels v. Mackell,
Since, however, the majority has made such a broad pronouncement on the meaning of Younger, albeit in a case where the facts do not justify so broad a •decision, I cannot help but note that the conclusion reached seems, to my mind,
Indeed, as Justice Brennan has pointed out in his concurring opinion in Perez v. Ledesma,
“. . . considerations of federalism are not controlling when no state prosecution is pending and the only question is whether declaratory relief is appropriate. In such case, the congressional scheme that makes the federal courts the primary guardians of constitutional rights, and the express congressional authorization of declaratory relief, afforded because it is a less harsh and abrasive remedy than the injunction, become the factors of primary significance.” (emphasis added.)
Moreover, as the First Circuit stated in a case limiting its application of Younger to situations where prosecutions were actually pending:
“While Mr. Justice Brennan’s views in Perez v. Ledesma,401 U.S. at 93 ,91 S.Ct. 674 et seq., did not prevail in view of the majority’s recognition of a prior pending state prosecution,401 U.S. at 86, n.2 ,91 S.Ct. 674 , we cannot dismiss the Congressional history reviewed by him,401 U.S. at 112-115 ,91 S.Ct. 674 , expressly contemplating resort to the milder, less intrusive, and more timely remedy of a declaratory judgment to test criminal laws, both state and federal. See e. g., Lewis v. Kugler,446 F.2d 1343 , 1347-1348 (3d Cir. 1971); Anderson v. Vaughn,327 F.Supp. 101 , 102 (D. Conn.1971) (three-judge court). Were the law to be that a plaintiff could not obtain a declaratory judgment that a local ordinance was unconstitutional when no state prosecution is pending unless he could allege and prove circumstances justifying a federal injunction of an existing state prosecution, the Federal Declaratory Judgment Act would have been pro tanto repealed.” Wulp v. Corcoran,454 F. 2d 826 , 832 (1st Cir. 1972).
The majority in this opinion attempts to effectuate such a repeal at least as to threatened state criminal prosecutions. It reads Younger and its companion cases as equating declaratory with injunc-tive relief in entirely different settings. That is to say the practical effects of declaratory relief are supposedly the same as those of injunctive relief even if in one case a prosecution is pending, and in another it is not. Because quite different considerations of federalism are involved when no prosecution is pending, I cannot agree with the majority’s equation of these two situations.
Again, as the First Circuit has noted:
“There is a clear and significant difference in the appropriateness of federal relief between pending and pre-*926 prosecution contexts. The policies militating against intervention, canvassed in Younger v. Harris [supra,401 U.S. at 43-44 ,91 S.Ct. 746 ], do not apply at all or apply with greatly diminished strength in the latter context. The traditional restraint of equity, calculated to present erosion of the role of the jury and avoid a duplication of legal proceedings is not here present. And considerations of comity do not push nearly so strongly where there is no ongoing state proceeding to be aborted.” Wulp, supra, at 832.
In addition, when a statute is being challenged as unconstitutional on its face (I again emphasize that this is not really in issue in this case), a Federal Court is not asked to make findings of fact in place of the state court. Rather, the Federal Court is asked to rule on only federal questions. In such a situation, I point to what the Supreme Court has stated in Zwickler:
“Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility equally with the federal courts, ‘. . .to guard, enforce, and protect every right granted or secured by the constitution of the United States .’ Robb v. Connolly,111 U.S. 624 , 637 [,4 S.Ct. 544 , 551,28 L.Ed. 542 ]. ‘We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.’ ” Zwickler v. Koota,389 U.S. 241 , at 248,88 S.Ct. 391 at 395, citing Stapleton v. Mitchell, D.C.,60 F.Supp. 51 , 55.
Since this is not a case involving a facially void statute, there must be bad faith harassment to provide federal jurisdiction. Here there was none shown. I think that is all we need say, in affirming the judgment of the trial court.
. Justices Stewart and Harlan, concurring, explicitly stated that:
“Finally, the Court today does not resolve the problems involved when a federal court is asked to give injunctive or declaratory relief from future state criminal prosecutions.” Younger,401 U.S. at 55 ,91 S.Ct. at 757 .
In addition, Justices Brennan, White and Marshall, concurring, distinguish Younger from Zwickler v. Koota,
. It is interesting to note that in narrowing the number of cases in which removal to the Federal Courts would be granted in Civil Rights cases, Justice Stewart specifically pointed to one remedy this court seeks to cut off today. In Greenwood v. Peacock,
“But there are many other remedies available in the federal courts to redress the wrongs claimed by the individual petitioners in the extraordinary circumstances they allege in their removal petitions. If the state prosecution or trial on the charge of obstructing a public street or any other charge would itself clearly deny their rights protected by the First Amendment, they may under some circumstances obtain an injunction in the federal court. See Dombrowski v. Pfister,380 U.S. 479 [,85 S.Ct. 1116 ,14 L.Ed.2d 22 ].”
. Since the original publication of these opinions and the judgment of this Court, the Supreme Court has announced its opinion in Lloyd Corporation Ltd. v. Tanner, - U.S. -,