STEFFEL v. THOMPSON

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Argument of Howard Moore Jr.

Chief Justice Warren E. Burger: We’ll hear arguments next in 72-5581, Steffel against Thompson.

Mr. Moore you may proceed whenever you are ready.

Mr. Howard Moore Jr.: Mr. Chief Justice and may it please the Court.

My name is Howard Moore, Jr. I represent the petitioner Richard Guy Steffel.

This case is before the Court on a writ of certiorari to review a judgment of United States Court of Appeals for the Fifth Circuit.

That judgment affirmed the denial of declaratory judgment by United States District Court, the Northern District of Georgia, in an action in which a declaratory judgment is sought against the threatened, a non-pending state criminal prosecution for Trespass in the Georgia Law Section 26 -- Section 1503 26 Georgia Code Annotated.

The issue presented and to be decided by this Court is whether the standard set forth in Younger v. Harris and Samuel -- Samuels against Mackell may be applied to deny a petitioner declaratory relief where there was no pending state criminal prosecution.

The factual background out of which this controversy arises is as follows, there were impressively two events.

The first event occurred on October 8, 1970.

The petitioner and a young lady by the name of Sandra Becker, both members of an incorporated association known as the Atlanta Mobilization Committee stood outside on the exterior sidewalks of a food store located in the North DeKalb Shopping Center.

Their purpose for their being there was to participate in handbilling.

They were passing out handbills to invite the public to attend an anti-war rally in downtown Atlanta on Saturday, October 31 to solicit support for the Atlanta Mobilization Committee and to urge support for the lady's boycott.

A copy of a handbill which they were handling out on that occasion is attached to the appendix at page 13.

The duration of the handbilling was about a -- about half an hour.

During the time they were handbilling, they were quiet and they were peaceful and there was no unreasonable littering, if any littering at all.

The handbilling was then disrupted by the shopping center’s security guard, who ordered the petitioner to cease.

When the petitioner explained that he was exercising his constitutional right, DeKalb County Police were called.

Police told petitioner and Mrs. Becker, if they did not discontinue that peaceful handbilling, they would be arrested.

The petitioner and Mrs. Becker left rather than being arrested.

The second incident occurred on October 10, 1970, when the petitioner and Mrs. Becker distributed handbills from 10:30 a.m. to 2:30 p.m. about four hours at the shopping center.

They conducted themselves on that occasion in an orderly and peaceful manner, to deny the view of the shopping center or commercial activities of the center and the disruption of the handbilling occurred again, when a security guard told the petitioner and Mrs. Becker to cease handbilling and leave.

The manager of the shopping center called the DeKalb Police.

The police came again, the petitioner left, Mrs. Becker refused to leave and she was arrested.

On the 16th of October, the petitioner began his efforts at judicial relief or redress, by filing a complaint in the United States District Court to the Northern District of Georgia for declaratory and injunctive relief on the grounds of Section 1503 of the Georgia Code as applied to his and Mrs. Becker’s conduct deprived them of the First Amendment rights.

A hearing, an evidentiary hearing was held on October 28, 1970 and the Court then later in January of 1971, state further proceedings in the case to await the decision of this Court in Samuels against Mackell and other cases which the Court mentioned in its decision.

Then following the decision in Younger and Samuels, the District Judge applied Younger and Samuels to deny the petitioner of relief.

Although petitioner was won against them, there was no pending criminal prosecution.

The District Judge was of the opinion that the petitioner had failed to show irreparable injury as defined by this Court and the defendants’ claim lack the rudiments of an active controversy.

Steffel then appealed.

Mrs. Becker and the Atlanta Mobilization Committee who were petitioners in the District Court did not appeal.

The District Court in a divided opinion, applied Younger and Samuels to this case.

The Court of Appeals was of the opinion and stated in his opinion that that was no different in effect in a declaratory judgment where there was no -- where there was not a pending criminal action.

Then there was in one point there was a pending criminal action.

And it saw no difference in reasoning and therefore applied Younger and Samuels to this case.

Judge Tuttle dissented from the extension of Younger and Samuels to this case but he concurred in the results on a different ground.

Judge Tuttle would have affirmed on the authority of Cameron against Johnson.

A motion was filed for rehearing and the rehearing was denied, three judges dissented from the denial of the rehearing and their opinion is before the Court.

Unknown Speaker: Could I ask you --

Mr. Howard Moore Jr.: Certainly.

Unknown Speaker: From your statement and I also recall from reading the District Court that there was a finding there was no active case of controversy?

Mr. Howard Moore Jr.: The Judge said he like to rudiment of an act controversy.

That was the finding of the District Court.

Unknown Speaker: Yes and did the Court -- what did the Court of Appeal has to do with that?

They just ignored it?

Mr. Howard Moore Jr.: It ignored it.

I think that the Court of Appeals was persuaded that there was an act of controversy as defined by this Court that the fact showed that it is substantial.

Unknown Speaker: He didn’t say so?

Mr. Howard Moore Jr.: He didn’t say so but it proceeded anyway to make a determination about Younger and Samuels.

Unknown Speaker: Is that case a controversy matter or sort of a special issue that we have to deal with?

Mr. Howard Moore Jr.: It is certainly, it is certainly could be but I do not think that it's dispositive because I think that on this facts, there is a substantial showing between parties of having adverse interest of an immediate controversy with reality.

Unknown Speaker: That’s -- the District Court said that that wasn’t so?

Mr. Howard Moore Jr.: They said they like the rudiments.

The District Court didn’t say what rudiments were missing?

It made no findings that made a conclusion but not defining the fact.

It didn’t show what would fact upon which it found if the rudiments were missing.

There is no statement of facts there.

I think that was clearly erroneous, clearly wrong because the petitioner on two occasions had been actually threatened with the enforcement of this specific statute not with some different statute.

But he himself on two occasions was threatened with the statute and it is a force of that statute and his obedience to that statute that has prevented him from returning to the shopping center to handbill so there is that adversity of interest because he would like very much to go out and handbill.

Unknown Speaker: So we must assume I suppose that the Court of Appeals agreed with you?

Mr. Howard Moore Jr.: I would think -- I hope so.[Laughter Attempt]

The Court of Appeal did not say so, but I think that there is enough in the record on the facts where this Court can meet that question.

It is the petitioner’s position that the Younger -- Samuels standards were incorrectly applied to this case.

In the context of a threatened prosecution, the application of the Younger and Samuels’s standards of irreparable injury are inappropriate and they’re inappropriate for a number of reasons.

The majority, I should say that the majority of the lower courts have with the exception of the Fifth Circuit, refused to apply Younger and Samuels rule of equitable non-intervention to situations such as this.

The restraining principles of comity which in Younger and Samuels are inapplicable where the relief requested poses no threat to an on-going state proceeding either criminal or non-criminal.

As a practical -- a comity is not an absolute value.

As a practical matter, some balancing must be allowed to ensure that fundamental federal rights are not lost by blind compliance with comity.

The purposes underlying the development of this principle which include the avoidance of conflict with two courts, seeking to dispose of a same case in respect for the State Courts in the context of a threatened criminal -- threatened prosecution.

In Samuels, it was held that there is no difference between declaratory relief and injunctions with the respect to the disrupted impact each on the pending state prosecution.

The purpose for equating the two forms of relief was to require a showing of irreparable injury.

In the context of a pending state court proceeding, there may be pragmatic reasons for requiring such a showing.

These reasons, I submit to -- would include additional cause to judicial system of two on-going proceedings involving essentially the same subject matter.

Stopping of an on-going proceeding where a jurisdiction has vested in the State Court and the effect of judicial intervention by the Federal Court is to rest away, to take away from a State Court a matter over which each jurisdiction has rested and you run into a principle that does not necessarily have to be respected in all cases that ordinarily you don’t rest away jurisdiction from a court once it has vested.

You have then an indictment of a state process because implicit and federal intervention where there is [Interruption] going on, is that in some way the state prosecution is inadequate or that the state prosecution is in bad faith or that the state judges are corrupt, that the state fact-finding proceeding is inaccurate -- is inadequate.

There are many of variables enacted -- referred to and that familiar to this Court but it is an indictment.

It is a slander so to speak of the state processes.

Another reason is the duplication of efforts in the disruption the status quo.

These reasons are not as compelling where a state prosecution has only been threatened.

When no state court action is pending there is no assurance the constitutional rights will receive time and attention.

This case is an example of that.

It has been now over three years and Steffel still has not got any determination of his rights.

He still can’t return to the shopping center for the purposes of handbilling.

Justice William H. Rehnquist: Do you have available to him under Georgia Law any declaratory judgment procedure?

Mr. Howard Moore Jr.: No, he did not.

Georgia Law by statute and by court decision prohibits the intermeddling of equity and administration to criminal law and the Georgia cases have refused to accept jurisdiction over matters involving the enforcement of criminal law.

Now, recently more than two years after this incident, the shopping center filed an action for declaratory judgment in the Superior Court of Fulton County.

That action was dismissed for failure to state a claim among other reasons.

One of the other reasons for dismissing it was that there was primary jurisdiction before, I think before the National Labor Relations Board because the union was about --

Justice William H. Rehnquist: But why did they file in Fulton County if they are in DeKalb County?

Mr. Howard Moore Jr.: The defendant lives is in Fulton County and there is a residence requirement.

You have to file in the residence where the defendant is and that’s why it was filed in Fulton County.

And there is an appeal pending now by the shopping center to the Georgia Supreme Court and that appeal will be heard on the 15th which is Thursday, Friday I believe.

Where irreparable harm to criteria for declaratory relief, rights and doubt may be sacrificed due to the difficulty in making such a showing, the decision that irreparable harm should not be a criterion for declaratory relief when no state action is pending is supported by legislative intent by case history and by the ways the Chief Architect of the federal declaratory judgment, Professor Borchard.

Federal intervention when the state prosecution is threatened is less disruptive of the state’s activities and similar intervention when a prosecution is pending.

A decree of federal equitable relief would interfere only with the policing and prosecutorial function of the state’s executive branch.

When the prosecution is pending however, federal intervention interferes further with the activities of its judiciary.

The dual interests of the Federal Court in eliminating threats for constitutional violations and in avoiding unnecessary police interference might both be protected by directing appropriate orders to responsible officials they could correct the situation internally themselves.

If there's a declaratory relief in a non-pending situation is that its non-coercive effect allows law enforcement officials to continue to function.

Now, declaratory judgment and injunctive relief should be distinguished.

A declaratory judgment can be distinguished from the equitable relief of an injunction in several respects and I should indicate that declaratory judgment is not a legal remedy, not an equitable remedy rather but it's a legal remedy.

Some of the distinguishing factors are is that, one, a lack of an adequate legal remedy is a pre-requisite for injunctive relief but is not a criterion for declaratory relief, Rule 57 on the Federal Rules of Civil procedure points this out.

This has been a tradition -- a traditional and ancient, a requirement for the intervention of equity that that be an absence of an adequate remedy at law or other appropriate remedy at law.

That was traditionally the way that the interest of equity was balanced against the interest of the lower court and gave rise more or less to the equity course by preventing embarrassment -- showing the ineffectiveness of equity by introducing or by decreeing an order that could not be enforced.

By granting declaratory relief, the petitioner need not show the inappropriateness of other forms of relief.

The petitioner need only show that the declaratory judgment can handle the dispute efficiently and economically.

Injunctive relief immunizes particular conduct by enjoining further prosecution whereas a declaration merely interprets the law and has no injunctive effect.

Justice William H. Rehnquist: Of course if you get far enough away from the irreparable harm and the kind of criteria you have for an injunction, then you begin to get into the case and controversy problem that Justice White mentioned, don’t you?

I mean a completely abstract instruction?

Mr. Howard Moore Jr.: Well, it’s not completely abstract because this Court as well as the statute, the declaratory judgment statute has defined standards to determine when a controversy exists over which the District Court can assume jurisdiction.

So it’s not all together abstract that requires an exercise of judgment, discretion by the District Judge, whomever is determining the matter but it’s not entirely abstract.

And in the logic of consequences of the position of case and controversy would be perhaps to repeal the declaratory judgment act.

If the case in controversy is standard isn’t given a real life content would mean --

Justice William H. Rehnquist: But the case of controversy standard is constitutional and the declaratory judgment is statutory or I mean if one had to go, which I take it you’re not suggesting and I’m certainly not, there’s no doubt as to which one it would be?

Mr. Howard Moore Jr.: I understand that.

But -- I’m simply saying that the case in controversy standard has to be applied against the background of Declaratory Judgment Act and to be too restrictive in the case of controversy would result, could result in repealing the Declaratory Judgment Action.

And whether that would be statutory or not, is not a question.

I think that’s really involved in this question of the case.

Justice Harry A. Blackmun: Mr. Moore, we’re close to the breaking point, some time in your argument, will you take up for me at least Cameron, the Cameron case and tell me how we escape Judge Tuttle’s conclusion that one controls this one?

Mr. Howard Moore Jr.: That is a good question for us.

Thank you very much.

Chief Justice Warren E. Burger: We’ll do that sometime after lunch.

[Lunch Recess]

Chief Justice Warren E. Burger: You may continue whenever you’re ready Mr. Moore.

Mr. Howard Moore Jr.: Mr. Chief Justice and may it please the Court.

To resume, I would like to resume with the question put to me by Mr. Justice Blackmun with respect to the application of Cameron against Johnson to this case.

First of all, I want to point out that Cameron against Johnson is certainly controlled by Younger and by Samuels, the reason being that Cameron was a pending State Court prosecution.

There was active litigation in the State Court.

The petitioners had filed an affidavit to quash on the grounds that the statute was unconstitutional.

Next of all, in Cameron against Johnson, the District Court did in fact issue a declaratory judgment.

But the declaratory judgment that the District Court issued was one which upheld the constitutionality of Mississippi’s anti-picketing statute.

Next, Cameron against Johnson is a failure of proof case that there was a failure of the petitioners to prove bad faith or harassment or even selective prosecution.

Fourthly, the Younger and Samuels standard is certainly inappropriate in the context of this case.

That is of a threatened prosecution because in the context of a threatened prosecution, what is a bad faith threat to enforce a statute against specific conduct?

What standards can be devised by this Court to make the application of the Younger and Samuels’ standards manageable?

The standard in the context of a then prosecution is unreally because there’s hardly unimaginable way to fashion an appropriate standard.

I take for example, litigation in which we were involved in Georgia.

The Atlanta Vietnam Moratorium Committee is an unreported case of the District Court.

And there, what was sought, the petitioners sought the right to go down to the state capital and hold a meeting and to parade and have a demonstration in opposition to the war.

And they notified the governor of their intentions of what they plan to do and the government sent them back a telegram and in this telegram he said in part, “You will be permitted to host such a meeting on the capital grounds if your purpose is the same as that of the other moratorium meetings.

And the ones planned for November which give aid and assistance to the enemies of this country which downgrade the United States Government and its flag and which are directed by the Communist and other enemies of this country with the support of Vietcong, you nor any of your group will be permitted to assemble on a capital ground for such purposes.”

Now, is that a good faith?

Is that a good bad faith threat to influence Georgia’s Trespass Statute?

Without a declaratory judgment action, what remedy would the petitioners have had in order to conduct their demonstration.

Fortunately, we do have declaratory judgment and the District Court did issue a declaratory judgment saying that the stated conduct of the sponsors of the meeting was constitutionally protected and that the governors had the right to his point of view but he could not impose his point of view on the sponsors of the demonstration so as to deny them the right to come down to a public building by an orderly demonstrate and orderly hold the meeting.

Of course, he would -- he could take action against them if their conduct went beyond that.

Cause violence, obstruction, and things that’s all.

But that was not involved it was purely First Amendment activities.

So when under the standard, if the standard of Younger and Samuels is applied to a non-threatened -- to a threatened prosecution, when can the District Court reliably determine that to bad faith by irreparable harm is reliably shown?

This is no way that you can do that.

Unless this Court is going to be willing to cause a District Court Judges to try the state of mind of state prosecutors and state law enforcement agents to show that they intend to actually strike the threatened law.

They actually intend to deprive persons of their constitutional right.

Then we get into a serious question if the standard is extended to the non-threatened, to the threatened rather of prosecution of case and controversy?

Next, with respect to this particular case, Judge Tuttle makes it clear in his concurrence in Steffel that it was a pending case.

And he relies on the language of this Court in Cameron which talks about withdrawing the determination of guilt from the State Court.

And the only reason that the state move that nature could be made is because there was a pending prosecution.

But then this Court went on to say in the language that Judge Tuttle used to talk about securing protection which a prompt trial on appeal directly to this Court would provide.

However, in a threatened situation there is no prompt trial.

There is no appeal.

So the rubric, the technique of a single prosecution being dispositive of the claims does not work and cannot work in a threatened prosecution.

The reason for there is nothing upon which it must be Cameron.

Unless, a petitioner such as Steffel is required to break the law and it does not seem that a democratic society that prior to itself in the concept of ordered liberty would require actual law breaking in order for one to come in Court.

Now in a similar case involving a similar question in the abortion case, the doctors and the women who were seeking abortions and had not actually been moved against under the state statutes were allowed to enjoy the benefit of a declaratory judgment in those cases.

So I think that basically, that Cameron against Johnson is not controlling, it cannot be controlling in this case because Cameron against Johnson is more correctly a pending prosecution case.

To move on where I was -- where I left of before recess, another distinguishing factor between the declaratory judgment and injunctive relief is that the state can disregard a declaratory judgment and not be cited for contempt.

But it can be held in contempt for disregarding an injunction.

Again, in the abortion cases, this Court relied upon the obligation under the constitution of state officials to obey decisions of this Court which are the Supreme law of the land and to obey the decisions of this Court voluntarily.

I’ve been notified that my time is about to expire.

In such time, as I have, I’d like to reserve it for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Moore.

Mr. Cohen.

Argument of Lawrence M. Cohen

Mr. Lawrence M. Cohen: Mr. Chief Justice and may it please the Court.

There are two issues in this case in our opinion.

The first is whether Federal Courts in the exercise of their equitable jurisdiction should issue a declaration of rights as to the good faith enforcement of a facially valid state statute.

There is no allegation in this case that there has either been bad faith harassment or a facial invalidity to the Georgia’s Criminal Trespass Law.

The second issue which I will address myself to is whether, where there is only the application of a state statute in question.

The statute first be given the opportunity under the doctrine of abstention to apply that statute.

In our opinion, the Court of Appeals properly declined, properly dismissed the complaint here on the basis of its equitable jurisdiction and even if they have not, they would have properly abstained to design the question, retain jurisdiction until the Georgia Courts have spoken on this issue.

A federal declaration of right as to a state criminal statute should issue only where it is necessary and appropriate to secure a vindication of constitutional rights.

This is not such a case.

The Federal Courts here could not provide any protection to either the plaintiff or to any other potential plaintiffs that they could not otherwise receive.

Conversely, there may be many of the significant disadvantages described in Younger and Samuels of federal intrusion upon state criminal processes.

It is significant to the petitioner in this case has not sought any declaration of the Georgia Criminal Trespass Law is generally void or even in values to any class of persons.

Rarely, what it has sought is a only a declaration as to a particular incident, at a particular shopping center, at a particular time, seeking to convey a particular message.

The only declaration that the Federal Courts could issue in this case is that the conduct that occurred on October 8 or the different conduct that occurred on October 10 was violative of Federal Constitutional Rights.

It could not have adjudicated the statute generally.

It could not have adjudicated the statute as to any other class of persons or as to anybody else seeking to come on any other shopping center to convey or to convey any other message.

In that situation, there is no value.

There is no virtue in the federal declaration.

The federal declaration doesn't any way achieve anything.

Their proceeding through the State Courts could not otherwise receive it.

Justice Byron R. White: You don’t contend then here or do you that there was no justiciable controversy?

Mr. Lawrence M. Cohen: No, we don’t make that contention Mr. Justice White.

Justice Byron R. White: So that the -- here is a -- here on the face of it is a case of controversy involving a federal constitutional question?

Mr. Lawrence M. Cohen: Is a case of controversy involving a federal constitutional question but it is exceptionally limited constitutional question.

Where you’re talking about a statute as applied, the only constitutional question is whether conduct in a particular occasion at a particular time would or would not be violative of the constitution.

It does not in any way say that the Georgia Criminal Trespass law generally?

Justice Byron R. White: Would you say then that the Declaratory Judgment Act against Federal Courts contemplates some Federal Courts will use their discretion as to which cases of controversy is entertained which should not to?

Mr. Lawrence M. Cohen: Yes, I think there’s two principles they cut against the principle of the Federal Declaratory Judgment Act, the right to choose your forum.

The first principle is the principle of comity.

Not every case or controversy that the Federal Courts under the Declaratory Judgment Act could decide -- warrants decision.

For example if you have a pending prosecution, then Younger and Samuels limits the right of the Federal Declaratory Judgment Act.

Similarly, where we have a non-pending case such as the one we have here, we don’t think that the principle of comity should be abandoned altogether.

We would say that in that case, a Federal Court can issue a declaration as to officially invalid state statute in allegation of facial and validity.

But it cannot issue a declaration where your -- all that’s being sought as to attack a statute as applied in a particular case.

Justice William H. Rehnquist: Would both or either of both of those take a three-judge court?

Mr. Lawrence M. Cohen: If there’s a due process argument, I would presume that would be true, Mr. Justice Rehnquist.

Justice William H. Rehnquist: Well, but we -- as certainly for it to declare a state statute unconstitutional you have to have some federal constitutional grant; I think it would be due process?

Mr. Lawrence M. Cohen: I would take it if the statute is sought to be -- if the statute's statewide implication and it’s generally in value you would need a three-judge court where it is only a single incident as we had here, there was no seeking of a three-judge court.

I don’t think one would be appropriate.

Justice William H. Rehnquist: There wasn’t a contention.

Not that the people were being harassed with a valid statute but at least in these circumstances it was unconstitutional to apply the statute to it.

Mr. Lawrence M. Cohen: That’s correct.

There was no allegation of harassment or bad faith prosecution.

Justice William H. Rehnquist: Why didn’t this take a three-judge court?

Mr. Lawrence M. Cohen: I don’t think it want a three-judge court because it’s only talking about a particular potential incident.

And --

Chief Justice Warren E. Burger: A hypothetical case, would you say?

Mr. Lawrence M. Cohen: No, I don’t consider this to be a hypothetical case if --

Chief Justice Warren E. Burger: Because of the prior pattern?

Mr. Lawrence M. Cohen: Because of a prior pattern.

I think that -- we're not arguing here that there’s lack of concreteness or lack of rightness or lack of standing.

Our argument here is that the case was appropriate for decision but the Federal Court in exercising its discretion, equitable discretion here should not have decided that case because of principles of comity or alternately should have abstain deciding it because of principles of abstention.

Unknown Speaker: Do you think you're defending the Court of Appeals decision?

Mr. Lawrence M. Cohen: No, I am defending Judge Tuttle’s position in the Court of Appeals in so far as his concurring opinion goes.

We would agree with the Court of Appeals that the principles of Younger and Samuels are applicable in this case only to the extent that in this case, the processes of the state have already been triggered.

Unknown Speaker: Now the Court of Appeals is somewhat brought it?

Mr. Lawrence M. Cohen: That’s correct.

That’s correct.

But to the extent of the Court of Appeals is saying that Younger and Samuels apply in every instance where there is an attack upon a state statute.

I would not go that far.

Unknown Speaker: Not if the attack is facially unconstitutional, you would not go to there?

Mr. Lawrence M. Cohen: Yes, correct.

That’s correct.

I would not -- I would feel that were there’s an attack on facial invalidity, you do not have to apply Younger and Samuels where there is no pending prosecution because as I see, the principles here, we're dealing with the question, two principles cutting against each other.

We have a first -- the principle that a plaintiff at least since civil war statutes have said, I can choose a forum.

He has a right to go into Federal Court, he has a right to go to State Court where he is seeking a vindication of constitutional right.

Unknown Speaker: And you don’t think a Federal Declaratory Judgment Act rather than keep it (Inaudible) economy?

Mr. Lawrence M. Cohen: The Federal Declaratory Judgment Act provides another form, a milder form of equitable relief.

It provides that a form of relief in which there may be different standards.

For example, under Younger and Samuels, an injunction could not issue whether it is a pending or not a pending situation.

Even in a case of facial invalidity.

We would say that a declaratory judgment however, being a milder form of relief could issue where there is only an attack on facial invalidity in a non-pending situation.

So that you would achieve a right on the Federal Declaratory Judgment Act that would not be possible if you (Voice Overlap).

Unknown Speaker: Well, why do you suggest equally the Declaratory Judgment Act could not be invoked where the attack is only as applied?

Mr. Lawrence M. Cohen: Because I think at that point there's -- you’re balancing the interference with the state criminal processes and the value and the need for federal declaration of rights.

When you’re only coming into as applied, there is no necessity.

There’s no chilling effect if you will on other persons that need to be vindicated on the Federal Court.

You have all the same considerations.

On the other hand, they warrant the doctrine of comity of being applied.

You have a potential duplication of proceedings.

The Becker case could still go forward here because we don’t know that the Samuels case and the Becker case involve the same considerations.

It was facial invalidity it couldn’t go forward.

Presumably the state would defer to the Federal Declaration of rights in that case.

So you still have a duplication of remedies, do you still have interference with the state process to the extent that people may want to give way to the decision.

You have an erosion of the role of the jury.

You have the facts as in Samuels that you might have ancillary injunctions or you may have had ancillary types of remedies being issued by the Federal Court.

And you have, in other words, interruption of the state processes at which there’s no corresponding value by obtaining a federal declaration of rights.

I only have where you have official invalid statute; I think there is a sufficient warning of bringing in the federal processes into play there because there you have a fact to other people as well and rights that cannot be secured by piecemeal adjudication in the State Court.

Justice Thurgood Marshall: But you don’t have declaratory judgment in this action in the State Court?

Mr. Lawrence M. Cohen: We don’t agree with that Mr. Justice Marshall.

In our opinion, the Georgia Laws, Section 110 and 1101 of the Georgia Code is broader than the Uniformity Declaratory Judgment Act.

And in our opinion, that Act confers a right under Georgia Law to go into the Georgia Courts as we've sought to have done in a pending action already and obtain a declaration as to whether the plaintiffs in this case could or could not have come out of North DeKalb Shopping Center.

Unknown Speaker: (Inaudible) that is a critical move, on the issue I suppose.

Mr. Lawrence M. Cohen: No, it isn’t.

Justice William J. Brennan: Because I take it you would make the same argument if you had a declaratory judgment?

Mr. Lawrence M. Cohen: I would make the same argument.

I defer to the Lake Carriers for example where Mr. Justice Brennan said that the existence of the state declaratory judgment statute was not material, as weekly there was a New York State Declaratory Judgment Act that was not held to be important.

I think the -- I think there is no case, I think this is what the essential, but there is no case after Younger and Harris or before Younger and Harris which apply a federal declaration of rights to a state statute as applied.

Abortion cases are mentioned, that was a case of facial invalidity.

The case of Cameron was a case where the Court said we don’t have any facial invalidity.

We don’t have any bad faith.

Therefore there is no federal equitable jurisdiction and it should be a Federal Court in its exercise of the federal jurisdiction should issue a declaration of rights.

The Court didn’t say, well, this would have been a different case if it is a non-pending action.

There’s no differentiation prior to Younger between pending and non-pending cases and yet no case do we have a situation where the Federal Courts issued a declaration of rights to the statute as applied.

We're dealing after all with what Mr. Justice Frankfurter said, the most sensitive source of friction between state and nation, namely the active intrusion of the Federal Courts and the administration of the criminal law for the prosecution of crimes solely within the power of the states.

This is, especially applicable here we think, where we're dealing with trespass which is -- Mr. Justice -- Mr. Chief Justice observed in Taggart as a matter of historic state concern.

This is the last I think of Lloyd also when the State Courts are fully confident to adjudicate federal questions.

And there’s no indication that they’ll act in bad faith and especially we're here as a cognizant of an almost identical case, the Becker case.

In here, she has one of special state concern.

We submit that it would be out of harmony with the constitutional presumption of state confidence where Federal Court tend to intervene.

Federal intervention after all is peculiar inconsistent with our federal framework.

This is I think especially appropriate here where we have a situation where the Federal Courts participating would not in any anyway eliminate uncertainty.

The next person seeking to come on to a shopping center in Georgia would not know even if there was a declaration of rights here as to whether or not he had the right to come out of that shopping center.

Someone come like to come up to the North DeKalb Shopping Center for another message not to protest the Vietnam War but perhaps to obtain signatures on initiative petition.

Or to go ahead and campaign for political office would not know by virtue of the declaration of rights here as to whether or not he had that right to come up.

Unknown Speaker: In the First Circuit case of Walp against Hartman, that was an allegedly facially invalid ordinance, I guess or a statute.

Mr. Lawrence M. Cohen: That’s correct.

That's correct.

The -- it was a city ordinance requiring a license to solicit in that case.

And the city or -- in their -- in that case it was alleged that that city ordinance by requiring a license in advance was facially unconstitutional.

That there was no saving construction or construction as applied that would make any difference.

I think that’s true incidentally Mr. Justice Stewart, of each of the cases that have cited by the plaintiff.

There's no case they cite where as here, you have someone coming on to seek a construction statute as applied.

As a second ground which we argued in our brief here, in addition to this distinction between cases where there is a statute that applies as opposed to a facially invalid statute.

And that was -- even if there a distinction to be drawn between pending and non-pending cases, that distinction should not depend on whether there has been an actual arrest or an indictment.

In this case we did not have a plaintiff who merely go to the shopping centers that I want to come out and the shopping center said no, he went into Federal Court.

We have a plaintiff who twice came up to North DeKalb Shopping Center.

Twice was asked to leave.

Twice the police were called and it was only on the second occasion when he left at that point that he bring federal suit.

We think in other words that he has actively invoked the processes of state law enforcement officially at this point.

And to proceed at this point, moreover especially in view of the better case would involve a duplication of efforts and a waste of resources.

They were necessarily be state federal friction here if the Federal Courts interfered by issuing a declaration of rights.

And I think this is the offense to comity that this Court was seeking to avoid when it issued Younger and Samuels decisions.

The considerations which might warrant in other words drawing a line between pending and non-pending cases, if that has to be determinative should not require them the situation such as the one we have here that choices -- that this is considered to be “a non-pending case.”

Justice William H. Rehnquist: Mr. Cohen, does your argument goes so far as to say that under -- where you’re talking about a statute as applied as opposed to facially invalid that perhaps there’s not even 1983 jurisdiction that the state official in that case isn’t actually causing the person to be deprived of any rights?

Mr. Lawrence M. Cohen: Well, you have it in the shopping center cases.

I think it is significant question to state action.

I mean, as I read --

Justice William H. Rehnquist: Well, I don’t mean state action.

Let’s assume there’s no doubt that the claim here is against the sheriff rather and that the claim is that this is sufficient state action but in the rather tentative stage of this situation where there wasn’t actually any pending prosecution, is there any question as to whether there you can say a state officer has cause this man to be (Voice Overlap).

Mr. Lawrence M. Cohen: I think you’re getting to a real question of the speculative nature of asking the Federal Courts to step in where there has been no overt action here.

We don’t know what the state officials would have done in this case if they had actually operated.

I think they had raised these 1983 problems.

I don’t think I’m prepared yet to -- I think you do have the element in a non-pending case always speculative in remoteness.

I think that operates to indicate where you have especially as in applied situation.

If you're going against a state statute there’s no question about it.

But when you're going into particular as applied situation then you have a real question of, does 1983 apply?

Do we have a real controversy?

What’s the nature of the dispute and so on?

So that’s one of the reasons why the Federal Court should not act in advance in that type of situation.

Unknown Speaker: Do you make anything at all out of the facts that if it’s true that there was a criminal constitutional pending against the federal action or wasn’t?

Mr. Lawrence M. Cohen: Yes, there was.

There was a criminal prosecution.

Unknown Speaker: For the same ordinance, question?

Mr. Lawrence M. Cohen: While the two people came out of the shopping center.

Mrs. Becker did not leave.

She was arrested.

Steffel left.

He was not arrested out since he left.

Steffel brought -- and Becker both brought this action.

The lower court dismissed as to Becker because there was a pending prosecution.

Unknown Speaker: And that she could raise the same questions there?

Mr. Lawrence M. Cohen: She could raise a delicate question there.

That's right.

So we do have --

Unknown Speaker: Yes or not?

Mr. Lawrence M. Cohen: She hasn’t raised them because it has been held up pending this action.

Unknown Speaker: There was no motion to dismiss the indictment?

Mr. Lawrence M. Cohen: There was no motion to dismiss the indictment.

No action was taken there.

The case was held up pending resolution in this controversy.

I don’t think -- I think it reach the indictment stage but hasn’t proceeded to beyond that point.

I think what’s significant in this case to show the narrowness of the federal injunction.

I mean the federal declaration rights had sought is to compare the two handbills that were passed out on this occasion.

We have one handbill that was passed out on October 8 --

Unknown Speaker: Mr. Cohen, let me interrupt you.

Tell me again what happen to the Decker case?

Mr. Lawrence M. Cohen: Becker.

Unknown Speaker: Becker.

Mr. Lawrence M. Cohen: Becker case.

Becker was arrested, was brought up, was arraigned and then the case, this action was filed involving both Becker and Steffel at that point.

Unknown Speaker: Am I misinformed or under a misapprehension?

I thought that her case has proceeded that she was prosecuted and convicted and did not appeal?

Mr. Lawrence M. Cohen: That’s not correct.

Unknown Speaker: That’s not correct?

Mr. Lawrence M. Cohen: Becker started the -- I think it’s dealt with in the footnote 2 at page 46 of the appendix in the Court of Appeals decision where the Courts has its oral argument.

The Court was informed that Becker’s trial has been indefinitely continued presumably weighing the disposition of this appeal.

That’s the latest word I know of it, Mr. Justice Blackmun.

What did happen in the Becker case was no appeal was taken from the District Court’s dismissal of the injunction of declaration of rights request which is part of this case.

The only appeal here was taken by Steffel as the declaration rights.

The point I was going to make was to show, was to compare exhibit A and exhibit B, pages 13 and 14 of the appendix which is a two handbills involved here.

Appendix A involves a message which is unrelated to the shopping center and at which there may be alternative forms of communication.

It is a communication therefore which directly involves the same considerations as to the type of communication desired in Tanner v. Lloyd.

Under Tanner and Lloyd, we think there’s no question that their type of communication was not permissible under private property of the shopping center even if the -- unless the shopping center which has not been alleged here became the functional equivalent of public property.

Exhibit B however, is a message directed a particular tenant of the shopping center namely the Colonial Stores which distributed lettuce.

There might be different considerations in that case.

That case might be held or might not be held to be more akin to Logan Valley than to be to akin to Lloyd.

So we have a declaration here that that depends on the happenstance whether the person has been arrested on October 8 or October 10.

If he had been arrested on October 8, it would have not governed the October 10 conduct.

They've been arrested on October 10 and there was a declaration of right as to that conduct, it would not have governed the October 8 conduct.

In that type of situation, to permit the Federal Courts to interrupt the state processes -- to interfere with the state processes and prematurely adjudicate the question before the State Courts have been able to adjudicate it.

We think offense of principles of comity and a federalism which are the heart of Younger and --

Unknown Speaker: But the only thing Steffel can do is just wait around at the pleasure of the state authorities before attempting again to distribute?

Mr. Lawrence M. Cohen: There's two things he could have done.

He could have also sought declaration rights.

We submit under the Georgia law.

Unknown Speaker: Well, I understood that -- we think they differ with --

Mr. Lawrence M. Cohen: Yes, they absolutely differ in the county?

Unknown Speaker: Oh!

I see!

I thought that --

Mr. Lawrence M. Cohen: We think that there is a right under the Georgia Trespass - under the Georgia Declaration -- Declaratory Judgment Act to seek a declaration of rights.

Justice Thurgood Marshall: But you don’t mention the Georgia cases.

I understand --

Mr. Lawrence M. Cohen: We did mention them in our brief Mr. Justice Marshall.

Justice Thurgood Marshall: sYes, but you didn’t mention when I asked you.

Mr. Lawrence M. Cohen: I’m sorry.

We have -- the cases are cited at our brief at page --

Justice Thurgood Marshall: Well, there’s a dispute.

Mr. Lawrence M. Cohen: There is a dispute.

Justice Thurgood Marshall: Both of you have cases showing what we can read?

Mr. Lawrence M. Cohen: That’s right and we are arguing the case first in the Georgia Supreme Court.

Justice Thurgood Marshall: [Laughter]

Mr. Lawrence M. Cohen: Now, hopefully that will dissolve the dispute at least give some light on.

Although that I should mention that the Lower Georgia Courts dismiss our action not because they did -- we have jurisdiction but because they felt that the controversy was not then right.

I mean it may have been too long in existence and we haven’t acted promptly enough.

Justice William J. Brennan: You started -- were you going to suggest something else Mr. Cohen besides the available (Voice Overlap)?

Mr. Lawrence M. Cohen: (Voice Overlap) -- That’s right.

There's two choices a person has.

He can either file a declaration rights or he can go or he can proceed to take the course of conduct and run the risk of prosecution.

Now, there are clearly disadvantages in proceeding to get a type -- to become a lawbreaker so to speak.

Justice William J. Brennan: Simple.

You go to prison.

You go to prison you know, so?

Mr. Lawrence M. Cohen: Well, not in this particular type of case.

Justice William J. Brennan: Well, what is the penalty then?

Mr. Lawrence M. Cohen: It is misdemeanor under Georgia Law which I think --

Justice William J. Brennan: And what's that carrying?

Mr. Lawrence M. Cohen: I think it does carry a potential jail sentence as well as being a fine.

But I think that this is the point of Dombrowski.

This is the point of Younger where they say that the penalty and the in -- attached to becoming a lawbreaker is not in of itself sufficient to invoke federal jurisdiction.

Justice William J. Brennan: Do you think what I said in my opinion in Perez v. Ledesma is consistent with the distinction you draw up between facially identified?

Mr. Lawrence M. Cohen: I do because I think when you --

Justice William J. Brennan: You do?

Mr. Lawrence M. Cohen: I hope you do too, Mr. Justice Brennan.

Justice William J. Brennan: [Laughter]

Mr. Lawrence M. Cohen: I think it’s consistent because the citations in your opinion.

Justice William J. Brennan: Actually of course --

Mr. Lawrence M. Cohen: To case like Douglas.

Justice William J. Brennan: Well, what we had involved in that case I agree was facial unconstitutionality only?

Mr. Lawrence M. Cohen: That’s correct.

Justice William J. Brennan: In Perez, the focus was on the statute and the ordinance.

But I thought some of my discussion on the Declaratory Judgment Act, suggested that I wouldn’t draw that distinction.

Mr. Lawrence M. Cohen: Well, I think truly decision can be read that way.

Justice Harry A. Blackmun: Judge Tuttle certainly agreed with your position?

Mr. Lawrence M. Cohen: Well, Judge Tuttle did agree with my position.

Justice Harry A. Blackmun: He did, he quote it from my Brother Brennan’s concurrence or whatever it was in the opinion in Perez against Ledesma, to make the point that he was making.

Justice William J. Brennan: [Laughter]

Mr. Lawrence M. Cohen: He concurred the result and re-looked into it --

Justice William J. Brennan: I guess how clearly how it was read.

Mr. Lawrence M. Cohen: [Laughter Attempt] Well, I think that the -- I think the line of cases that you cite in there Mr. Justice Brennan.

Cases like Douglas versus City of Jeannette.

Justice William J. Brennan: Well, actually I think --

Mr. Lawrence M. Cohen: All are facial invalid.

Justice William J. Brennan: Well, as you've said yourself, this Court has never addressed this distinction that you’re pressing at.

Mr. Lawrence M. Cohen: That’s correct.

It’s not addressed nor is there any suggestion in any decisions that would agree or disagree with me.[Laughter]

In the time remaining, I just like to address myself --

Justice William J. Brennan: Did you draw -- do you make the same position in the Court of Appeals?

Mr. Lawrence M. Cohen: That’s correct.

Unknown Speaker: And they agreed with you but too much?

Mr. Lawrence M. Cohen: They -- we took the position in the Court of Appeals that no declaration of rights should issue.

For this reason as well as because of Younger and Harris, they agreed with the first and did not get -- reach the second nor they reach.

We also argued abstention of the Court of Appeals and they did not reach their question either because that question would only reached if they have not dismissed the complaint if they decided to retain jurisdiction.

And we certainly argue that here and that even if this Court disagrees with the position which I have urged and besides if the Court should not dismiss the complaint at the very least, they should have retain its jurisdiction.

Justice William J. Brennan: Well, of course, that’s predicated on your position that there is a remedy by way of declaratory relief available in the Georgia System.

Mr. Lawrence M. Cohen: Well, if there’s a remedy available by the declaratory relief.

There is also the Becker case.

The Becker case preceded the judgment.

We might well have a definitive state answer in identical situation here with identical two cases can get over what the Georgia Trespass Law means in and as applied to people in the position of the petitioner.

The abstention doctrine as I read the cases --

Unknown Speaker: Is the petitioner here in charge of the Becker case?

Mr. Lawrence M. Cohen: Excuse me?

Unknown Speaker: This petitioner isn’t in charge of the Becker case?

Mr. Lawrence M. Cohen: No.

But the Becker case would proceed.

It may not finally settle the controversy but may certainly give enlightenment and it may reach a decision which either avoids a constitutional problem by saying that someone's similar situation can’t be prosecuted.

And therefore there is little risk that Steffel would be prosecuted or might reach out what a modifying decision that constitute which would modify its law in such a way as to avoid the constitutional question.

It would avoid --

Unknown Speaker: But to do what is in the situation that you certainly recurring where the plaintiff and the Federal Court in an action like this search for facial and as applied on the constitutionality?

Mr. Lawrence M. Cohen: I think it is not a pending action.

There is not a pending action I think with Federal Court can issue a declaration of rights as to the facial and validity of the statute.

Unknown Speaker: But not as to --

Mr. Lawrence M. Cohen: Not as to apply it because that would vary from case to case.

There’s no virtue.

There’s no virtue as to any other person in having such a declaration of rights.

Unknown Speaker: Well, and --

Mr. Lawrence M. Cohen: There’s no constitutional right to put up a security.

It couldn’t be secured otherwise.

Unknown Speaker: And if it says the law is facially constitutional then it must dismiss the rest of the case?

Mr. Lawrence M. Cohen: I would submit that that’s the case, yes.

I would submit that in any type of situation, the Federal Court declares it’s constitutional.

The plaintiff is going to advice of all the rights to which he is entitled to be known in advance before he proceeds under state law.

The case I think in some ways, as far as the abstention ground goes resembles the case that was decided last term by this Court called Gibson v. Berryhill where you have a state statute, an optometry statute, there have been decisions by the Court in that case that it should exercise equitable jurisdictions.

There was no room for abstention but there was also a state case that was preceding that involved other people in a similar situation and the Court -- this Court held in that type of situation that there should be abstention until the lower courts of the state have passed upon the people.

The decision of the highest court I think was in Georgia in a -- as to people similarly situated to those who have brought the action of Federal Court.

And it is our position that goes the same kind of consideration should meet the abstention here, should this Court find Federal -- the Federal Courts properly refused to exercise their equitable jurisdiction.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Cohen.

Mr. Moore, you have few minutes left.

Rebuttal of Howard Moore Jr.

Mr. Howard Moore Jr.: Several things in rebuttal.

Indeed, as applied adjudications have less dignity than facial adjudications.

That is the facial constitutionality of statutes.

I think that for the reason that they do have less dignity that they should be rooted into the District Court where it is appropriate and the reason for that is that I believe it makes a more manageable relationship between the State or Federal Court and it unburdens this Court with needless applications for a certiorari which may be substantial questions in a Federal District Court but not necessarily substantial questions warranting to exercise by this Court’s certiorari -- jurisdiction.

I should say further that the District Courts are familiar with the exercise of the declaratory judgment action and apply the situations because they do it everyday in diversity cases where insurance companies are suing to determine whether or not a particular accident is within the coverage of the policy.

Why then should federal constitutional rights have any less dignity than ordinary personal injury of case?

I think that as applied to adjudications are appropriate for rooting in to the District Court.

That’s not necessarily a question to be decided in this case.

Additionally, I think that the Court should take seriously the statement of Judge Tuttle with respect to turning federalism on its head.

What would happen here if this Court were to affirm the Court of Appeals?

It would create a situation where conduct could be controlled not by State Courts but rather by prosecutorial officials and law enforcement officials.

The rule of (Inaudible) would really become a statute.

Take for example in Steffel, instead of being an outside handbiller where a tenant in the shopping center, along head tenant in the shopping center operating an ice cream stand and instead of operating an ice cream everyday he had people to gather into his ice cream stand and plan protest against the war, ecological protest, support in behalf of women, racial rights, racial equality and takes that out.

But yet someone and the police did not like what Mr. Steffel were doing and told them that unless he seize they would arrest him for unlawful assembly.

Without the right to come into Federal Court, Mr. Steffel may very well have to obey the admonishment of the state prosecutorial official.

Chief Justice Warren E. Burger: In your hypothetical case, does Mr. Steffel doing this in a cubicle rented by him or a store?

Mr. Howard Moore Jr.: He is a tenant and of course there would be greatest sensitivity and receptivity to his position because then he would also have a property right as well as a personal right of liberty but there is a tremendous danger that the Declaratory Judgment Act would be pro tanto repeal as Judge Tuttle indicated in his tremendous danger to federalism because valuable constitutional rights may be lost and there would be no remedy, no form in which they can be protected.

Chief Justice Warren E. Burger: I don’t quite see how it helps you that much to say that Mr. Steffel might be able to do something in his private quarters when we’re dealing with the case where he is not doing anything in private?

Mr. Howard Moore Jr.: [Laughter]Mr. Justice -- Mr. Chief Justice, the example is that it illustrates some of the harms and real issues that could flow from withholding the right to seek a declaratory judgment where there is a non-pending prosecution.

Unknown Speaker: In your hypothetical case, he’s in effect hired to hold to take the vernacular.

He is hired to hold, presumably he can do anything he wants in that place?

Mr. Howard Moore Jr.: Not actually.

What he is actually done is to operate a business but his sensitivity -- he is sensitive to the issues of the day and he devotes himself to the issues of the day rather than to his business but someone is offended by it.

Chief Justice Warren E. Burger: So all the customers who come in his store?

Your assumption, that is?

Mr. Howard Moore Jr.: Perhaps to customers who are friend of his.

It is his space, he is a tenant.

He uses it as a he pleases.

But the problem is that if declaratory judgment is withheld there may be no way that federalize could be reliably protected and that he would have to obey this admonishment against perfectly proper and constitutionally protective activity.

Thank you.

Justice William H. Rehnquist: Mr. Moore, let me ask you one question similar to what I asked Mr. Cohen.

As I read 1983, in order for you to state a claim, you have to show that the defendant is in the language of statute subjects or causes to be subjected your client a deprivation of constitutional rights.

Now in the absence of a pending prosecution, how do you fit the facts of your case into that language?

Mr. Howard Moore Jr.: Well, we would certainly claim that police officers who came and admonished him were state agents and the question is -- the question then would become whether or not it would be sufficient state action based upon the enforcement apparently in good faith.

Justice William H. Rehnquist: Assume there is efficient state action but the statute reads in the present tense that they subject or cause to be subjected your client.

Then in the absence of the present prosecution, don’t you have some job of fitting those facts into the language of the statute?

Mr. Howard Moore Jr.: Certainly not, Mr. Justice Rehnquist because my client is obeying the state law.

He staying away from the premises is in deference to the state laws as enforced by the state agents.

They actually came out.

The police actually came out.

The state police came out and told Mr. Steffel to leave the premises.

Justice William H. Rehnquist: So the gist of your complaint isn’t then the threatened prosecution?

Mr. Howard Moore Jr.: I don’t quite understand the question.

Unknown Speaker: (Inaudible)

Mr. Howard Moore Jr.: Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.