MR. JUSTICE BLACK delivered the opinion of the Court.
Given our decisions today in No. 2, Younger v. Harris, ante, p. 37; No. 7, Samuels v. Mackell, and No. 9, Fernandez v. Mackell, ante, p. 66; No. 4, Boyle v. Landry, ante, p. 77; No. 83, Byrne v. Karalexis, post, p. 216; and No. 41, Dyson v. Stein, post, p. 200, in which we have determined when it is appropriate for a federal court to intervene in the administration of a State's criminal laws, the disposition of this case should not be difficult.
Ledesma and the other appellees operated a newsstand in the Parish of St. Bernard, Louisiana, where they displayed for sale allegedly obscene magazines, books, and playing cards. As a result of this activity, appellees were charged in four informations filed in state court with violations of Louisiana statute, La. Rev. Stat. Ann. § 14:106 (Supp. 1970), and St. Bernard Parish Ordinance 21-60. After the state court proceedings had commenced by the filing of the informations, appellees instituted the instant suit in the United States District Court for the Eastern District of Louisiana, New Orleans Division. Since the appellees sought a judgment declaring a state statute of statewide application unconstitutional, together with an injunction against pending or future prosecutions under the statute, a three-judge court was convened. That court held the Louisiana statute constitutional on its face, but ruled that the arrests of appellees and the seizure of the allegedly obscene materials were invalid for lack of a prior adversary hearing on the character of the seized materials. Although the three-judge court declined to issue an injunction against the pending
It is difficult to imagine a more disruptive interference with the operation of the state criminal process short of an injunction against all state proceedings. Even the three-judge court recognized that its judgment would effectively stifle the then-pending state criminal prosecution.
Moreover, the District Court retained jurisdiction "for the purposes of hereafter entering any orders necessary to enforce" its view of the proper procedures in the then-pending state obscenity prosecution. According to our holding in Younger v. Harris, supra, such federal interference with a state prosecution is improper. The propriety of arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals, see Stefanelli v. Minard, 342 U.S. 117
After crippling Louisiana's ability to enforce its criminal statute against Ledesma, the three-judge court expressed the view that the Parish of St. Bernard Ordinance 21-60 was invalid. Although the court below recognized that "it is not the function of a three-judge federal district court to determine the constitutionality or enjoin the enforcement of a local ordinance," the court nevertheless seized the "opportunity to express its views on the constitutionality of the ordinance." 304 F.Supp. 662, 670 n. 31 (1969). Judge Boyle, the District Judge who initially referred the action to the three-judge court, adopted that court's view and declared the parish ordinance invalid. There is considerable question concerning
We are, however, unable to review the decision concerning the local ordinance because this Court has no jurisdiction to review on direct appeal the validity of a declaratory judgment against a local ordinance, such as St. Bernard Parish Ordinance 21-60. Even if an order granting a declaratory judgment against the ordinance had been entered by the three-judge court below (which it had not), that court would have been acting in the capacity of a single-judge court. We held in Moody v. Flowers, 387 U.S. 97 (1967), that a three-judge court was not properly convened to consider the constitutionality of a statute of only local application, similar to a local ordinance. Under 28 U. S. C. § 1253 we have jurisdiction to consider on direct appeal only those civil actions "required. . . to be heard and determined" by a three-judge court. Since the constitutionality of this parish ordinance was not "required . . . to be heard and determined" by a three-judge panel, there is no jurisdiction in this Court to review that question.
The fact that a three-judge court was properly convened in this case to consider the injunctive relief requested against the enforcement of the state statute, does not give this Court jurisdiction on direct appeal over other controversies where there is no independent jurisdictional
In this case, the order granting the declaratory judgment was not issued by a three-judge court, but rather by Judge Boyle, acting as a single district judge. The three-judge court stated:
The last clause of the quoted sentence indicates what, under Moody v. Flowers, must be the case: The decision granting declaratory relief against the Parish of St. Bernard Ordinance 21-60 was the decision of a single federal judge. This fact is confirmed by the orders entered by the two courts. The three-judge court entered the following order at the end of its opinion.
The order of the single-judge District Court is as follows:
The fact that the clerk of the District Court merged these orders into one judgment does not confer jurisdiction upon this Court. In the first place, our jurisdiction cannot be made to turn on an inadvertent error of a court clerk. Second, the jurisdictional statute by its own terms grants a direct appeal from "an order granting or denying" an injunction. 28 U. S. C. § 1253. (Emphasis added.) Since the order entered by the three-judge court omits any reference to declaratory relief, the discussion of such relief in the court's opinion is dictum.
The judgment of the court below is reversed insofar as it grants injunctive relief. In all other respects the judgment is vacated and the case remanded to the United States District Court with instructions to enter a fresh decree from which the parties may take an appeal to the Court of Appeals for the Fifth Circuit if they so desire.
It is so ordered.
In joining the opinion and judgment of the Court, I add these few concurring words.
The three-judge District Court's decree suppressing the use of the seized material as evidence and ordering its return to the appellees was an injunctive order, from which an appeal was properly taken directly to this Court. 28 U. S. C. § 1253. The decree was plainly wrong under Stefanelli v. Minard, 342 U.S. 117, and I agree that it must be reversed. In Stefanelli we affirmed the refusal of a federal district court to suppress the use in a pending state prosecution of evidence that the petitioners alleged had been obtained in an unlawful search. Our ruling there is clearly applicable to the facts before us:
See also Cleary v. Bolger, 371 U.S. 392, 400.
I also agree that the appeal from the declaratory judgment holding the parish ordinance unconstitutional is not properly before us. This Court has no power to consider the merits of that appeal for two quite distinct reasons, each sufficient to defeat our jurisdiction. First, the ordinance is neither a state statute nor of statewide application. The case thus presents a fortiori the situation in which the Court found no jurisdiction in Moody v. Flowers, 387 U.S. 97, 101. Second, the appeal is from the grant of declaratory relief, not from the grant or denial of an injunction, and jurisdiction under 28 U. S. C. § 1253 is therefore lacking. Gunn v. University Committee to End the War in Viet Nam, 399 U.S. 383; id., at 391 (WHITE, J., concurring).
MR. JUSTICE DOUGLAS, dissenting in part.
The three-judge panel was properly convened under 28 U. S. C. § 2281 to consider the validity of a Louisiana statute of general application. That court was also asked, however, to pass on an ordinance of St. Bernard Parish. But I agree with part III of the opinion of the Court written by MR. JUSTICE BLACK that we have no jurisdiction over that phase of the litigation.
It is by now elementary that a three-judge court may not be convened to consider the validity of a local ordinance or a statute of local application. Moody v. Flowers, 387 U.S. 97, 101. The three-judge court recognized that it had no jurisdiction to pass upon the constitutionality of the ordinance; but it expressed "its views . . . in the interest of judicial economy [since it was] shared by the initiating federal district judge and is adopted by reference in his opinion issued contemporaneously herewith." 304 F.Supp. 662, 670 n. 31. It then stated that "[W]e have examined the ordinance and find it to be unconstitutional and unenforceable." Id., at 670.
The single District Judge then ordered that a judgment be entered, holding that the ordinance was unconstitutional.
The judgment entered pursuant to the order of the single District Judge should go to the Court of Appeals for review, not to this Court. Moreover, even if the judgment entered by the clerk was authorized by the three-judge court, it is not properly here. For the order or judgment concerning the ordinance would be here only if the three-judge court had pendent jurisdiction over the claim.
Pendent jurisdiction does extend to nonconstitutional grounds for challenging a statute when a constitutional challenge is also raised. Siler v. Louisville & N. R. Co., 213 U.S. 175; Davis v. Wallace, 257 U.S. 478; Sterling v. Constantin, 287 U.S. 378, 393; United States v. Georgia Pub. Serv. Comm'n, 371 U.S. 285; Florida Lime Growers v. Jacobsen, 362 U.S. 73, 75-85; and Flast v. Cohen, 392 U.S. 83, 88-91. State causes of action have been appended to federal causes of action in a one-judge court where all causes of action arose out of the same set of facts. United Mine Workers v. Gibbs, 383 U.S. 715. This case, however, does not involve a challenge to one statute or a request for one award of relief on different grounds, but a challenge to two different laws on the same grounds. The only argument for considering both these laws together is that Ledesma was charged under both. This is not sufficient, under any ruling of this Court, to give jurisdiction, on direct appeal, over the ruling. The appellants did not challenge the jurisdiction of the three-judge court or the appellate jurisdiction of this Court over this claim. But subject matter jurisdiction of the federal courts may not be bestowed by the parties. United States v. Griffin, 303 U.S. 226, 229. The cases cited by appellants do not support jurisdiction
The present judgment should be reviewed in the Court of Appeals, not here. Rorick v. Comm'rs, 307 U.S. 208.
As to the orders of the three-judge court suppressing evidence in the prosecution under the Louisiana statute, which the Court sets aside, I dissent. My views, which are not congenial to the majority, are set forth at some length in Younger v. Harris, ante, p. 58, and Dyson v. Stein, post, p. 204, decided this day.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE and MR. JUSTICE MARSHALL join, concurring in part and dissenting in part.
This case presents questions regarding federal court intervention affecting the administration of state criminal laws that were not presented in No. 2, Younger v. Harris, ante, p. 37; No. 7, Samuels v. Mackell, and No. 9, Fernandez v. Mackell, ante, p. 66; No. 4, Boyle v. Landry, ante, p. 77; No. 83, Byrne v. Karalexis, post, p. 216; and No. 41, Dyson v. Stein, post, p. 200, all decided today.
Appellees operate a newsstand in the Parish of St. Bernard, Louisiana. On January 27, 1969, sheriff's officers of the parish, without warrants, raided the newsstand, seized allegedly obscene magazines, books, and playing cards from the shelves, and arrested appellee August M. Ledesma, Jr., an owner, for displaying obscene materials for sale. On February 10, 1969, four informations were filed in the state district court, two charging Ledesma with the crime of obscenity in violation of a Louisiana statute, La. Rev. Stat. Ann. § 14:106 (Supp. 1970), and two charging him with obscenity in violation of St. Bernard Parish Ordinance 21-60. The statute and ordinance appear as an Appendix to this opinion. On February
The three-judge court filed an opinion holding (a) that the Louisiana statute was constitutional on its face; (b) that the parish ordinance was unconstitutional on its face; and (c) that the arrest of appellee Ledesma and the seizure of the magazines, books, and playing cards were unconstitutional in the absence of a prior judicial adversary hearing determining that the seized materials were obscene. 304 F.Supp. 662 (1969). The court stated that because it was confident the appellants would comply with the court's views it was "unnecessary to issue any injunctions" against "pending or future prosecutions or future arrests and seizures." 304 F. Supp., at 670. In pertinent part the judgment entered on August 14, 1969, therefore decreed:
We postponed consideration of the question of jurisdiction to the hearing on the merits. 399 U.S. 924 (1970). In addition to the questions presented in the jurisdictional statement, our order requested the parties to brief and argue the following questions:
I agree with the Court (1) that this is a proper appeal to this Court, and (2) that it was not an appropriate exercise of discretion for the three-judge court to grant the relief in paragraphs 1 and 2 of the judgment of August 14, 1969. I dissent, however, from the holding of the Court that the declaratory judgment which is paragraph 4 of the judgment of the three-judge court is not properly before us for review. I think that it is and, on the merits, would hold that it was an appropriate exercise of discretion for the court in paragraph 4 to declare St. Bernard Parish Ordinance No. 21-60 unconstitutional. I would, therefore, reverse and set aside paragraphs 1 and 2 of the judgment of August 14, 1969, but in all other respects would affirm that judgment.
Appellants' assertion of a right of direct appeal to this Court relies upon 28 U. S. C. § 1253. That section permits an appeal in any civil action required to be heard and determined by a district court of three judges "from an order granting or denying . . . an interlocutory or permanent injunction."
The companion cases decided today hold that a federal court should not interfere by injunction with an existing
The Declaratory Judgment as to the Parish Ordinance
Threshold questions must be answered before the merits of the declaratory judgment which is paragraph 4 of the judgment of the three-judge court are reached.
The first threshold question is whether the declaratory judgment is properly before us for review. Two opinions, both written by Judge Boyle who initiated the three-judge panel, were filed on July 14, 1969, one for the three-judge court and the other a separate opinion of Judge Boyle. Judge Boyle's opinion for the three judges explained: "Although it is not the function of a three-judge federal district court to determine the constitutionality or enjoin the enforcement of a local ordinance,
The Court holds that we have no jurisdiction to review the declaratory judgment on the premise that the declaratory judgment against the local ordinance was not issued by the three-judge court but rather by Judge Boyle acting as a single judge. With all respect this is not the case. Both the Court and my Brothers DOUGLAS and STEWART insist that Judge Boyle's separate statement was in fact a judgment. I would suppose Judge Boyle himself is the best authority as to that and he expressly referred to the statement as "his opinion." Appeals are, of course, taken from judgments and not from opinions. No judgment was entered by Judge Boyle pursuant to his separate opinion and therefore there existed no judgment pursuant to the order of the single judge to go to the Court of Appeals for review. The only judgment entered in the case was that entered by the three-judge court on August 14, 1969. Since the injunctions in paragraphs 1 and 2 rendered that judgment appealable directly to this Court, paragraph 4 of that judgment, the declaratory judgment, is necessarily before us.
The appellants argue, however, that no controversy requisite to relief under the Federal Declaratory Judgment Act existed after the nolle prosequi was entered. This argument presents the second threshold question.
Appellants rely upon Golden v. Zwickler, 394 U.S. 103 (1969). In that case a New York criminal statute prohibited the distribution of anonymous handbills in election campaigns. A distributor of anonymous handbills opposing the re-election of a Congressman sought in federal court a judgment declaring the statute unconstitutional. The federal action was brought after reversal by the New York courts of the appellee's conviction for distributing handbills during an earlier campaign of the Congressman. See Zwickler v. Koota, 389 U.S. 241 (1967). Appellee desired to distribute handbills during a forthcoming campaign of that Congressman, but the Congressman had retired from Congress to become a justice of the New York Supreme Court. In those circumstances the Court held that no "controversy" requisite to declaratory relief existed, since Zwickler's only target was a particular Congressman and "the prospect was neither real nor immediate of a campaign involving the Congressman." 394 U. S., at 109.
The third threshold question is whether the state prosecution under the ordinance was "pending" so as to make federal intervention inappropriate. The fact is, as I have already noted, that informations against appellee Ledesma for violation of the ordinance were outstanding when this federal suit was filed. However, the nolle prosequi of those informations was entered before the three-judge court convened and heard the case. That court therefore treated the case as one in which no prosecution under the ordinance was pending. This was not error. The availability of declaratory relief was correctly regarded to depend upon the situation at the time of the hearing and not upon the situation when the federal suit was initiated. See Golden v. Zwickler, 394 U. S., at 108. The principles of comity as they apply to federal court intervention, treated by the Court today in Nos. 2, 4, 7, 9, 41, and 83, see supra, at 93, present this issue. The key predicate to answering the question whether a federal court should stay its hand, is whether there is a pending state prosecution where the federal court plaintiff may have his constitutional defenses heard and determined. Ordinarily, that question may be answered merely by examining the dates upon which the federal and state actions were filed. If the state prosecution was first filed and if it provides an adequate forum for the adjudication of constitutional rights, the federal court should not ordinarily intervene. When, however, as here, at the time of the federal hearing there is no state prosecution to which the federal
There is, of course, some intrusion into a state administration of its criminal laws whenever a federal court renders a declaratory judgment upon the constitutionality of a state criminal enactment. The Court holds today in Samuels v. Mackell, supra, that considerations of federalism ordinarily make the intrusion impermissible if a state prosecution under that enactment is proceeding at the time the federal suit is filed. The Court says, "[I]n cases where the state criminal prosecution was begun prior to the federal suit, the 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 these principles, declaratory relief should ordinarily be denied as well." Id., at 73. But 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.
The controversy over the power of federal courts to declare state statutes unconstitutional and to enjoin their enforcement has roots that reach back at least to Chisholm v. Georgia, 2 Dall. 419 (1793), where in a contract action this Court held that a State could be sued by a citizen of another State. "That decision . . . created such a shock of surprise throughout the country that, at the
Ex parte Young was the culmination of efforts by this Court to harmonize the principles of the Eleventh Amendment with the effective supremacy of rights and powers secured elsewhere in the Constitution. During the years between Osborn and Young, and particularly after the Civil War, Congress undertook to make the federal courts the primary guardians of constitutional rights. This history was reviewed in Zwickler v. Koota, 389 U. S., at 245-249. The principal foundations of the expanded federal jurisdiction in constitutional cases were the Civil Rights Act of 1871, 17 Stat. 13, which in § 1 empowered the federal courts to adjudicate the constitutionality of actions of any person taken under color of state statute, ordinance, regulation, custom, or usage, see 42 U. S. C. § 1983, 28 U. S. C. § 1343 (3), and the Judiciary Act of 1875, 18 Stat. 470, which gave lower federal courts general federal-question
Ex parte Young involved a state regulatory statute with penal sanctions. At the suit of railroad stockholders, a federal circuit court temporarily enjoined the railroad from complying with the statute, and also temporarily enjoined Young, the state Attorney General, from instituting any proceedings to enforce the statute. Young nevertheless brought an enforcement proceeding in a state court, and was thereupon held in contempt by the circuit court. He brought habeas corpus in this Court, contending that the circuit court lacked jurisdiction to hold him in contempt. This Court held, first, that the original suit was properly within the general federal-question jurisdiction of the circuit court; second, that "individuals, who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action," 209 U. S., at 155-156; and, third, that a federal court of equity has power in appropriate circumstances to enjoin a future state criminal prosecution: "When [the state] proceeding is brought to enforce an alleged unconstitutional statute, which is the subject matter of inquiry in a suit already pending in a Federal court, the latter court having first obtained jurisdiction over the subject matter, has the right, in both civil and criminal cases, to hold and maintain such jurisdiction, to the exclusion
The decision in Ex parte Young provoked a reaction not unlike that which greeted Chisholm v. Georgia. Opposition focused principally on the power of lower federal courts, and of single judges of such courts, to issue preliminary injunctions, often ex parte, against the enforcement of state statutes, generally regulatory statutes carrying penalties. See generally Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154 (1963); H. Hart & H. Wechsler, The Federal Courts and the Federal System 848-849 (1953); Hutcheson, A Case for Three Judges, 47 Harv. L. Rev. 795, 803-810 (1934); Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 5-7 (1964). The opinion in Ex parte Young anticipated the problem. The Court noted the objection "that the necessary result of upholding this suit in the Circuit Court will be to draw to the lower Federal courts a great flood of litigation of this character, where one Federal judge would have it in his power to enjoin proceedings by state officials to enforce the legislative acts of the State, either by criminal or civil actions." 209 U. S., at 166. The same year the case was decided Congress considered a measure to disable the lower federal courts from enjoining enforcement of state statutes, but the proposal failed to attract sufficient support for passage. See 42 Cong. Rec. 4848-4849 (1908). Two years later, a similar measure passed the House, see 46 Cong. Rec. 313, 316 (1910), but the Senate would not accept it. See F. Frankfurter and J. Landis, The Business of the Supreme Court 143 (1927). However, the same year, Congress did respond to Ex parte Young. It did not attempt to overrule the case by constitutional amendment or by statute; it did not seek to contain it by expanding the statutory bar against federal injunctions of state proceedings, 28 U. S. C. § 2283, beyond
The express purpose of the Federal Declaratory Judgment Act was to provide a milder alternative to the injunction remedy. The House Committee Report stated, "The principle involved in this form of procedure is to confer upon the courts the power to exercise in some instances
Both before and after the enactment of the Federal Declaratory Judgment Act, the practice of those States that provided a declaratory remedy was to make it available
The legislative history of the Federal Declaratory Judgment Act is overwhelming that declaratory judgments were to be fully available to test the constitutionality of state and federal criminal statutes. Much of the hostility to federal injunctions referred to in the Senate report was hostility to their use against state officials seeking to enforce state regulatory statutes carrying criminal sanctions; this was the strong feeling that produced the Three-Judge Court Act in 1910, the Johnson Act of 1934, 28 U. S. C. § 1342, and the Tax Injunction Act of 1937, 28 U. S. C. § 1341. The Federal Declaratory Judgment Act was intended to provide an alternative to injunctions against state officials, except where there was a federal policy against federal adjudication of the class of litigation altogether. See discussion, infra, at 126-128, of Great Lakes Co. v. Huffman, 319 U.S. 293 (1943). Moreover, the Senate report's clear implication that declaratory relief would have been appropriate in Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), both cases involving federal adjudication of the constitutionality of a state statute carrying criminal penalties, and the report's quotation from Terrace v. Thompson, which also involved anticipatory federal adjudication of the constitutionality of a state criminal statute, make it plain that Congress anticipated that the declaratory judgment procedure would be used by the federal courts to test the constitutionality of state criminal statutes.
This history compels rejection of the Court's suggestion, ante, at 86 n. 2, that although no informations were pending at the time of the hearing, declaratory relief was inappropriate in the absence of a showing "that appellees would suffer irreparable injury of the kind necessary to
Ex parte Young makes clear that the most significant factor determining the propriety of federal intervention is whether a state proceeding exists that was initiated before the federal suit was filed. The Court there upheld a federal court's injunction against future state proceedings where the injunction was in aid of the federal court's jurisdiction, but the Court expressly excepted from its holding the case where a state proceeding exists which was pending at the time federal jurisdiction attached. Specifically, the Court stated, "But the Federal court cannot, of course, interfere in a case where the proceedings were already pending in a state court." 209 U. S., at 162. The Court cited Harkrader v. Wadley, 172 U.S. 148 (1898), in support, thus making clear that the ruling was influenced by the statutory provision, first enacted in 1793, prohibiting federal injunctions against proceedings pending in any court of a State. The history of that provision, now 28 U. S. C. § 2283, was recently traced in Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281 (1970). However, the statutory bar applies only to prosecutions begun before the federal suit is filed and does not preclude injunctions against the institution of future prosecutions. See generally Warren, Federal and State Court Interference, 43 Harv. L. Rev. 345, 366-378 (1930). Thus, the general rules that follow from Ex parte Young are, first, that where there is no pending state proceeding when the federal suit is filed, a federal court can adjudicate constitutional
These rules were developed further in the light of additional considerations in Dombrowski v. Pfister, 380 U.S. 479 (1965). Dombrowski confirmed the well-established principle that constitutional defenses to a state criminal charge must be initially tested in state rather than in federal courts. See Douglas v. City of Jeannette, 319 U.S. 157 (1943); Cameron v. Johnson, 390 U.S. 611, 618 (1968); compare Stefanelli v. Minard, 342 U.S. 117 (1951), with Rea v. United States, 350 U.S. 214 (1956). However, Dombrowski also recognized that exceptional circumstances may justify federal intervention when the opportunity to raise constitutional defenses at the state criminal trial does not assure protection of the constitutional rights at stake. Dombrowski considered two situations in which "exceptional circumstances" can exist. First, if in order to discourage conduct protected by the First Amendment or by some other provision of the Constitution,
The situation is different where the plaintiff seeks federal intervention on the ground that a state statute is unconstitutional, but does not allege facts showing bad-faith harassment. In cases of this sort, on whatever provision the claim of unconstitutionality rests, the justification for intervention is that individuals should be able to exercise their constitutional rights without running the risk of becoming lawbreakers. This justification applies with full force where there is a continuing live controversy and federal intervention is sought when there is no state prosecution in which the statute may be tested. However, where federal intervention is sought after a
When no state proceeding is pending and federal intervention is therefore appropriate,
It follows that the Court's statement today in Samuels v. Mackell, that in cases where the state criminal prosecution is pending, "the same equitable principles relevant to the propriety of an injunction must be taken into consideration. . . in determining whether to issue a declaratory judgment, and that where an injunction would be impermissible . . . declaratory relief should ordinarily be denied as well," is not applicable when determining whether to issue a declaratory judgment in a case where no state criminal prosecution is pending. Its applicability is precluded by the nature of the remedy created by the Federal Declaratory Judgment Act, and by our decisions under the Act, culminating in Zwickler v. Koota, supra, which establish that the considerations governing the grant of a declaratory judgment are quite different from those governing the grant of an injunction, even though both forms of relief are discretionary and thus, in the broad sense of the term, "equitable" in nature. The application of the Mackell statement when no criminal prosecution is pending would run counter to our decision this Term in Wisconsin v. Constantineau, 400 U.S. 433, decided January 19, 1971, where we flatly rejected the
Moreover, the prerequisites for injunctive and declaratory relief are different. The availability of an alternative adequate legal remedy ordinarily bars an injunction, but does not bar declaratory relief, see Fed. Rule Civ. Proc. 57, unless the alternative remedy was expressly created by statute. See Katzenbach v. McClung, 379 U.S. 294, 295-296 (1964). Similarly, irreparable injury must be shown in a suit for an injunction, but not in an action for declaratory relief. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937). Of course, neither remedy may be afforded in the absence of a live controversy. United States v. Alaska S. S. Co., 253 U.S. 113 (1920); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941); Zwickler v. Koota, supra, at 244 n. 3. However, the existence of an actual controversy and the adequacy of declaratory relief to resolve it are issues often presenting particular difficulty in declaratory judgment actions, and it is to these
The effects of injunctive and declaratory relief in their impact on the administration of a State's criminal laws are very different. See generally Kennedy v. Mendoza-Martinez, 372 U.S. 144, 152-155 (1963). An injunction barring enforcement of a criminal statute against particular conduct immunizes that conduct from prosecution under the statute. A broad injunction against all enforcement of a statute paralyzes the State's enforcement machinery: the statute is rendered a nullity. A declaratory judgment, on the other hand, is merely a declaration of legal status and rights; it neither mandates nor prohibits state action. See Flemming v. Nestor, 363 U.S. 603, 607 (1960); Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 15-16 (1964).
Of course, a favorable declaratory judgment may nevertheless be valuable to the plaintiff though it cannot make even an unconstitutional statute disappear. A state statute may be declared unconstitutional in toto—that is, incapable of having constitutional applications; or it may be declared unconstitutionally vague or overbroad—that is, incapable of being constitutionally applied to the full extent of its purport. In either case, a federal declaration of unconstitutionality reflects the opinion of the federal court that the statute cannot be fully enforced. If a declaration of total unconstitutionality is affirmed by this Court, it follows that this Court stands ready to reverse any conviction under the statute. If a declaration of partial unconstitutionality is affirmed by this Court, the implication is that this Court will overturn particular applications of the statute, but that if the statute is narrowly
The Court's opinion in Zwickler v. Koota confirmed that the considerations governing the grant of the two remedies are quite different. Zwickler v. Koota distinguished the prayer for injunction from the prayer for declaratory relief and held squarely that the District Court erred in denying declaratory relief on the ground that there was no "showing . . . of `special circumstances to justify . . .' injunctive relief." 389 U. S., at 253-254. The Court expressly held that "a request for a declaratory judgment that a state statute is overbroad on its face must be considered independently of any request for injunctive relief against the enforcement of that statute. We hold that a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction." Id., at 254 (emphasis added). See also Malone v. Emmet, 278 F.Supp. 193 (MD Ala. 1967).
Great Lakes Co. v. Huffman, 319 U.S. 293 (1943), is not contrary to my conclusion. That case was an action by employers for a declaration that a state unemployment compensation scheme which imposed a tax upon them was unconstitutional. Congress has always treated judicial interference with the enforcement of tax laws as a subject governed by unique considerations, and this Court has consistently enforced the congressional command that "[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." 28 U. S. C. § 1341. This Court, without relying on the
Thus, where no criminal prosecution involving the federal court parties is pending when federal jurisdiction attaches, declaratory relief determining the disputed constitutional issue will ordinarily be appropriate to carry out the purposes of the Federal Declaratory Judgment Act and to vindicate the great protections of the Constitution.
I conclude that the three-judge court properly exercised its discretion in issuing a declaratory judgment upon the constitutionality of St. Bernard Parish Ordinance No. 21-60. I also agree with the District Court that the ordinance is unconstitutional on its face because "mortally infected with the vice of vagueness." 304 F. Supp., at 670. Appellants do not assert the contrary.
Paragraphs 1 and 2 of the judgment entered August 14, 1969, should be reversed and the judgment in all other respects should be affirmed.
APPENDIX TO OPINION OF BRENNAN, J.
LOUISIANA REVISED STATUTES ANNOTATED
§ 14:106. Obscenity
A. Obscenity is the intentional:
(1) Exposure of one's person in a public place in such manner that any part of a sex organ may be seen by another person, with the intent of arousing sexual desire.
(2) Production, sale, exhibition, gift, or advertisement with the intent to primarily appeal to the prurient interest of the average person, of any lewd, lascivious, filthy or sexually indecent written composition, printed composition, book, magazine, pamphlet, newspaper, story paper, writing, phonograph record, picture, drawing, motion picture film, figure, image, wire or tape recording or any written, printed or recorded matter of sexually indecent character which may or may not require mechanical or other means to be transmitted into auditory, visual or sensory representations of such sexually indecent character.
(3) Possession with the intent to sell, exhibit, give or advertise any of the pornographic material of the character as described in Paragraph (2) above, with the intent to primarily appeal to the prurient interest of the average person.
(4) Performance by any person or persons in the presence of another person or persons with the intent of arousing sexual desire, of any lewd, lascivious, sexually indecent dancing, lewd, lascivious or sexually indecent posing, lewd, lascivious or sexually indecent body movement.
(6) Requirement by a person, as a condition to a sale, allocation, consignment or delivery for resale of any paper, magazine, book, periodical or publication to a purchaser or consignee, that such purchaser or consignee receive for resale any other article, book or publication reasonably believed by such purchaser or consignee to contain articles or material of any kind or description which are designed, intended or reasonably calculated to or which do in fact appeal to the prurient interests of the average person in the community, as judged by contemporary community standards, or the denying or threatening to deny any franchise or to impose any penalty, financial or otherwise, by reason of the failure of any person to accept such articles or things or by reason of the return thereof.
(7) Display of nude pictures of a man, woman, boy or girl in any public place, except as works of art exhibited in art galleries.
B. In prosecutions for obscenity, lack of knowledge of age or marital status shall not constitute a defense.
C. Whoever commits the crime of obscenity shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned for not more than six months, or both.
When a violation of Paragraphs (1), (2), (3), and (4) of Subsection (A) of this Section is with or in the presence of an unmarried person under the age of seventeen years, the offender shall be fined not more than one thousand dollars, or imprisoned for not more than five years with or without hard labor, or both.
On motion of Celestine Melerine, seconded by Joseph V. Papania and upon recommendation of the District Attorney of the Parish of St. Bernard, the following Ordinance was adopted:
ORDINANCE NO. 21-60
An Ordinance known as the Ordinance of St. Bernard Parish, relative to prohibiting and defining the offense of obscenity and indecent literature, adding thereto the offense of "attempt," and prescribing penalties for the violation thereof.
Offense of obscenity defined and prohibited.
BE IT ORDAINED, by the Police Jury of the Parish of St. Bernard that obscenity is prohibited and is hereby defined as the intentional.
BE IT FURTHER ORDAINED, that public personal exposure of the female breast or the sexual organs or fundament of any person of either sex.
BE IT FURTHER ORDAINED, that production, sale, exhibition, possession with intent to display, or distribution of any obscene, lewd, lascivious, prurient or sexually indecent print, advertisement, picture, photograph, written or printed composition, model, statute, instrument, motion picture, drawing, phonograph recording, tape or wire recording, or device or material of any kind.
SECTION 5 (a)
BE IT FURTHER ORDAINED that the performance of any dance, song, or act in any public place, or in any public manner representing or portraying or reasonably calculated to represent or portray any act of sexual intercourse between male and female persons, or any act of perverse sexual intercourse or contact, or unnatural carnal copulation, between persons of any sex, or between persons and animals.
SECTION 5 (b)
OR FURTHER, the performance in any public place, or any public manner of any obscene, lewd, lustful, lascivious, prurient or sexually indecent dance, or the rendition of any obscene, lewd, lustful, lascivious, prurient or sexually indecent song or recitation.
BE IT FURTHER ORDAINED, PRODUCTION, POSSESSION WITH INTENT to display, exhibition, distribution, or sale of any literature as defined herein containing one or more pictures of nude or semi-nude
BE IT FURTHER ORDAINED, that it shall also be unlawful for any person to attempt to commit any of the violations set forth in this section.
BE IT FURTHER ORDAINED, that any person upon conviction of a violation of this section shall be sentenced to serve not more than ninety (90) days, or pay a fine of not more than one hundred dollars ($100.00) or both, in the discretion of the Court.
BE IT FURTHER ORDAINED, that persons convicted of an attempt to violate this section shall be sentenced to not more than one-half of the maximum penalty prescribed, or pay not more than half of the maximum fine or both, as set forth above.
BE IT FURTHER ORDAINED, that the word literature as used herein means and includes a book, booklet, pamphlet, leaflet, brochure, circular, folder, handbill or magazine. The word picture as used herein means and includes any photograph, lithograph, drawing, sketch, abstract, poster, painting, figure, image, silhouette, representation or facsimile.
BE IT FURTHER ORDAINED, that this Ordinance shall be published in the Official Journal of the Parish, the St. Bernard Voice.
YEAS: Henry C. Schindler, Jr., Joseph V. Papania, Peter N. Huff, Peter Perniciaro, Louis P. Munster, John W. Booth, Sr., Claude S. Mumphrey, Celestine Melerine, Edward L. Jeanfreau, and Mrs. Blanche Molero.
And the Ordinance was declared adopted on this, the 2nd day of November, 1960.
I CERTIFY THAT the above and foregoing is a true and correct copy of an ordinance adopted by the St. Bernard Parish Police Jury at a Regular meeting held at Chalmette, Louisiana, in the Police Jury Room at the Courthouse Annex on the 2nd day of November, 1960.
Witness my hand and the Seal of the St. Bernard Parish Police Jury this 11th day of February, 1969.
New York Feed complained that the arrest, without prior adversary hearing, was unconstitutional.
Milky Way attacked the arrest warrant statutes as unconstitutional "as applied in law," alleging they were overbroad, an illegal prior restraint, and vague.
The Attorney General of New York, in both cases, treated the claim as an attack on the constitutionality of the arrest warrant statutes and argued that they were constitutional.
The District Attorney argued that petitioners' attack on the arrest warrant statutes was improper because they did not preclude the adversary hearing. He did not, however, raise any jurisdictional questions as to the power of the three-judge court to pass on the legality of the arrests.
The city of New York raised no jurisdictional challenge.
In reply, both petitioners argued that the arrest warrant statutes were "unconstitutional as applied in law."
"Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges."
"A district court of three judges shall, before final hearing, stay any action pending therein to enjoin, suspend or restrain the enforcement or execution of a State statute or order thereunder, whenever it appears that a State court of competent jurisdiction has stayed proceedings under such statute or order pending the determination in such State court of an action to enforce the same. If the action in the State court is not prosecuted diligently and in good faith, the district court of three judges may vacate its stay after hearing upon ten days notice served upon the attorney general of the State."
The statute has proved largely ineffectual principally because of the stay requirement, which protects the constitutional interests of the federal court plaintiffs. See Hart & Wechsler, supra, at 854-855; Hutcheson, supra, at 822-823; Lockwood, Maw, & Rosenberry, supra, at 452-453. However, in cases where construction of complex state regulatory law is critical to a constitutional decision, the federal courts have developed their own techniques for securing state court consideration of issues of state law. See, e. g., Prentis v. Atlantic Coast Line Co., 211 U.S. 210 (1908); Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941). The narrow scope of the doctrine of federal abstention was delineated in Zwickler v. Koota, 389 U.S. 241 (1967). See also ALI, Study of the Division of Jurisdiction Between State and Federal Courts § 1371, pp. 282-298 (1969); Note, Federal-Question Abstention: Justice Frankfurter's Doctrine in an Activist Era, 80 Harv. L. Rev. 604 (1967).