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September 19, 1966

Sanford ZWICKLER, Plaintiff,
Aaron E. KOOTA, as District Attorney of the County of Kings, Defendant

The opinion of the court was delivered by: ZAVATT

ZAVATT, Chief Judge.

 On the motion of the plaintiff, a three-judge court was convened, pursuant to 28 U.S.C. § 2284. The plaintiff seeks an order enjoining the defendant from prosecuting him under section 781-b *fn1" of the New York Penal Law, McKinney's Consol.Laws, c. 40, which the plaintiff contends is violative of the First Amendment as made applicable to the states through the Fourteenth Amendment. The defendant has made a cross-motion to dismiss the amended complaint upon the grounds (1) that this court lacks subject-matter jurisdiction and (2) that the amended complaint fails to state a claim upon which this court can grant relief. For the reasons hereinafter stated, the plaintiff's motion is denied; the defendant's motion is granted.

 The New York statute under attack prohibits, among other things, and renders criminal the distribution of anonymous political literature "in quantity." A first offense under the statute is punishable as a misdemeanor; subsequent offenses, however, constitute felonies. At the present time the plaintiff is not distributing anonymously any such political literature nor is he being prosecuted for any such distribution made by him prior to the institution of this action. He grounds his amended complaint and his motion for an injunction primarily upon what happened to him during the 1964 political campaign and his apprehension as to what may transpire during 1966 and subsequent political campaigns.

 During the 1964 political campaign, the plaintiff distributed an anonymous leaflet *fn2" critical of a named candidate for reelection to the House of Representatives. He was charged with a violation of section 781-b of the New York Penal Law and found guilty after a trial (at which he presented no evidence) by the Criminal Court of the City of New York, County of Kings, despite his contention that section 781-b violates the Fourteenth Amendment. People v. Zwickler (Crim.Ct., N.Y. City, Kings Co., Feb. 10, 1965, unreported). The judgment of conviction was "unanimously reversed on the facts." People v. Zwickler (Sup.Ct., App.T., Kings Co., April 23, 1965, unreported):


"In our opinion, the People failed to establish that defendant distributed anonymous literature 'in quantity' in violation of the provisions of Section 781(b) of the Penal Law. We do not reach the question of the constitutionality of the statute involved."

 The New York Court of Appeals affirmed without opinion the reversal of the judgment of conviction. People v. Zwickler, 16 N.Y.2d 1069, 266 N.Y.S.2d 140, 213 N.E.2d 467 (1965).

 Prior to September 1, 1962, section 781-b applied only to the anonymous printing and reproduction (not the distribution) "in quantity" of political literature in connection with any election of public officers or of candidates for nomination for public office. It did not apply to such literature in connection with any election of party officials or candidates for nomination for a party position. It was not until September 1, 1962 that this section was expanded to apply to distribution of such literature "in quantity." L.1962, c. 576, eff. September 1, 1962. Prior to this 1962 amendment, one Robert Clampitt distributed anonymous handbills in connection with a primary election for the selection of a district leader of the Democratic Party. He was running in that primary in opposition to the incumbent, who was seeking redesignation. Clampitt was charged with a violation of section 781-b. At the close of the People's case, Clampitt's motion to dismiss the information was granted and he was discharged. People v. Clampitt, 34 Misc.2d 766, 222 N.Y.S.2d 23 (Ct.Spec.Sess.N.Y.Co.1961). The court held that (1) section 781-b did not apply to anonymous literature in connection with an election of candidates for party office; (2) that it did not apply to the distribution of anonymous political literature and (3) that, even as to those instances to which it did apply, it was "void for indefiniteness and uncertainty." "Just what is meant by 'in quantity' is not defined. How much or how little is 'in quantity'?" "The public should not be compelled to indulge in guessing games where violations of criminal law are concerned." Clampitt, supra, 34 Misc.2d at 768, 222 N.Y.S.2d at 25-26. The "in quantity" aspect of the validity of the section was not passed upon by the New York Court of Appeals in Zwickler, supra. Nor did that court consider the constitutionality of section 781-b under the Fourteenth Amendment to the Constitution of the United States or under Article 1, section 8 of the Constitution of the State of New York. *fn3"

 In his amended complaint, the plaintiff alleges his intention and desire to distribute in the future and "in quantities of more than a thousand copies" the anonymous leaflet he distributed in 1964 *fn4" "and similar anonymous leaflets, all prepared by and at the instance of a person other than the plaintiff"; to do so "at any time during the election campaign of 1966 and in subsequent election campaigns or in connection with any election of party officials, nomination for public office and party position that may occur subsequent to said election campaign of 1966." The plaintiff does not accuse Aaron E. Koota, the District Attorney of Kings County, New York, of bad faith. Rather, he praises him as a "diligent and conscientious public officer" and presumes to read Mr. Koota's mind by alleging that Mr. Koota "pursuant to his duties intends or will again prosecute the plaintiff for his [intended] acts of distribution" of anonymous political literature. He regards this presumption as "the threat of prosecution" which places him "in fear of exercising his right to make distribution as aforesaid" and which places him "in danger of again being prosecuted therefor." Upon these assumptions he grounds his prayers for relief for (1) a declaration that section 781-b is unconstitutional as violative of the First and Fourteenth Amendments; (2) an injunction restraining the defendant from prosecuting him for his intended distributions of political literature and (3) an injunction pendente lite. From a reading of the amended complaint, it would appear that it has been drafted in the hope of bringing this case within Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). And, as a matter of fact, the memorandum of law of plaintiff's counsel leans heavily upon that opinion.

 The threshold question is whether or not this court should temper the exercise of its equitable power to enjoin the defendant. As far back as Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), the Supreme Court recognized the power of a federal court to enjoin a threatened prosecution by a state official under a state statute in a case reasonably free from doubt. "[No] injunction ought to be granted unless in a case reasonably free from doubt. We think such rule is, and will be, followed by all the judges of the Federal courts." 209 U.S. at 166-167, 28 S. Ct. at 457. Since Young, supra, "considerations of federalism have tempered the exercise of equitable power, for the Court has recognized that federal interference with a State's goodfaith administration of its criminal laws is peculiarly inconsistent with our federal framework." Dombrowski, supra, 380 U.S. at 484, 85 S. Ct. at 1119-1120. The complaint states a claim under the Civil Rights Act, 28 U.S.C. § 1343(4), since it alleges a deprivation of a right guaranteed by the Fourteenth Amendment. It alleges a case or controversy which is within the adjudicatory power of this court. Douglas v. City of Jeannette, 319 U.S. 157, 162, 63 S. Ct. 877, 880, 87 L. Ed. 1324 (1943). This is not to say, however, that this court necessarily agrees with the plaintiff's contention that "freedom of expression" includes freedom to express one's views by criticizing a named public officer or a named candidate for public office, under the cloak of anonymity. This question was not involved in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). See Bertelsman, Libel and Public Men, 52 A.B.A.J. 657 (July 1966).

 The fact that a case is within the adjudicatory power of this court does not necessarily require that its power be exercised. As a general rule and policy a district court, on its own motion, may, in its discretion, refuse to act. "Especially should it do so where its powers are invoked to interfere by injunction with threatened criminal prosecutions in a state court." Douglas, supra, 319 U.S. at 162, 63 S. Ct. at 880. In Douglas, the plaintiffs, Jehovah's Witnesses, brought suit in a district court to restrain threatened criminal prosecution in a state court for violation of a city ordinance which prohibited the solicitation of orders for merchandise without first procuring a city license, claiming that the city ordinance violated the Fourteenth Amendment. The trial court found that certain of the plaintiffs and other Jehovah's Witnesses had been prosecuted previously by the defendants for distributing literature without having first obtained a license and having paid a tax therefor; that the defendants had declared their intention further to enforce the ordinance against the plaintiffs. But the trial court made no finding of threatened irreparable injury to the plaintiffs. As to this, the Supreme Court said: "we cannot say that the declared intention to institute other prosecutions is sufficient to establish irreparable injury in the circumstances of this case." Douglas, supra, 319 U.S. at 164, 63 S. Ct. at 881. On the same day the Court rendered its opinion in Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S. Ct. 870, 87 L. Ed. 1292, involving the same city ordinance under which Jehovah's Witnesses were prosecuted for distributing religious literature and soliciting the purchase of religious books and pamphlets. Murdock presented a single issue "[The] constitutionality of an ordinance which as construed and applied requires religious colporteurs to pay a license tax as a condition to the pursuit of their activities." Murdock, supra, 319 U.S. at 110, 63 S. Ct. at 873. The convictions of the defendants in the state court were reversed on the ground that the ordinance imposed a tax upon the constitutional rights of the free exercise of religion, freedom of speech and freedom of the press. And because the Court held invalid in Murdock the same city ordinance under review in Douglas, it affirmed in Douglas the reversal by the Court of Appeals of the judgment for the plaintiff in the district court. Since an injunction looks to the future and "in view of the decision rendered today in Murdock, et al. v. Pennsylvania, supra, we find no ground for supposing that the intervention of a federal court, in order to secure petitioners' constitutional rights, will be either necessary or appropriate." Douglas, supra, 319 U.S. at 165, 63 S. Ct. at 882. The Court said that "courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts. Its imminence, even though alleged to be in violation of constitutional guarantees, is not a ground for equity relief since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for an injunction. * * * Where the threatened prosecution is by state officers for alleged violation of a state law, the state courts are the final arbiters of its meaning and application, subject only to review by this Court on federal grounds appropriately asserted. Hence the arrest by the federal courts of the processes of the criminal law within the states, and the determination of questions of criminal liability under state law by a federal court of equity, are to be supported only on a showing of danger of irreparable injury 'both great and immediate.'" Douglas, supra, 319 U.S. at 163-164, 63 S. Ct. at 881.

 It may be argued that the principle of abstention illustrated by Douglas, supra, is inapposite because, on the very day Douglas was decided, the Supreme Court had held the statute involved therein to be unconstitutional in Murdock, supra. However, subsequent cases demonstrate that the doctrine of judicial abstention remains fully viable. In Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S. Ct. 1025, 3 L. Ed. 2d 1152 (1959), decided several years after Douglas and involving Fourteenth Amendment rights, a three-judge statutory court permanently enjoined the Attorney General of Virginia and other officials from enforcing certain statutes of the Commonwealth of Virginia which imposed conditions upon the right to make public solicitation of funds and to expend such funds for litigation involving racial segregation. N.A.A.C.P. v. Patty, 159 F. Supp. 503 (E.D.Va.1958).

 The state statutes involved had not been authoritatively construed by the courts of Virginia. Nevertheless the three-judge court felt that it should not abstain; that it should pass upon the constitutionality of these statutes because it considered them free from ambiguity and that there was no reasonable interpretation which would render them constitutional. It held certain chapters of the law to be unconstitutional and permanently enjoined their enforcement. As to two chapters the court did not pass upon their constitutionality. Rather, it retained jurisdiction and allowed the complaining parties a reasonable time within which to obtain a state interpretation. On appeal, the Supreme Court vacated the judgment and remanded the case with instructions so as to afford the Virginia courts a reasonable opportunity to construe the statutes, believing as it did, that they were fairly open to interpretation and that the state courts should have been afforded a reasonable opportunity to pass upon them. The Supreme Court did not agree that the statutes left no reasonable room for a construction by the Virginia courts which might avoid in whole or in part the necessity for federal constitutional adjudication or at least materially change the nature of the problem. It referred to the well-established principle of abstention:


"This now well-established procedure is aimed at the avoidance of unnecessary interference by the federal courts with proper and validly administered state concerns, a course so essential to the balanced working of our federal system. * * * In the service of this doctrine, which this Court has applied in many different contexts, no principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them. * * * This principle does not, of course, involve the abdication of federal jurisdiction, but only the postponement of its exercise; it serves the policy of comity inherent in the doctrine of abstention; and it spares the federal courts of unnecessary constitutional adjudication.


* * *


We do not intimate the slightest view as to what effect any such determinations might have upon the validity of these statutes. All we hold is that these enactments should be exposed to state construction or limiting interpretation before the federal courts are asked to decide upon their constitutionality, so that federal judgment will be based on something that is a complete product of the State, the enactment as phrased by its legislature and as construed by its highest court. * * * And of course we shall not assume that the Virginia courts will not do their full duty in judging these statutes in light of state and federal constitutional requirements." 360 U.S. at 178, 79 S. Ct. at 1030-1031, 3 L. Ed. 2d 1152.

 The abstention doctrine is not an automatic rule applied whenever a federal court is faced with a doubtful issue of state law. It involves a discretionary exercise of a court's equity powers. In Baggett v. Bullitt, 377 U.S. 360, 12 L. Ed. 2d 377, 84 S. Ct. 1316, (1964), the Supreme Court reversed a three-judge United States District Court which abstained and refused to pass upon the constitutionality of a state statute. Whether the court should have abstained, said the Supreme Court, depended upon "whether there exist the 'special circumstances,' * * * prerequisite to its application * * *." It found that such "special circumstances" were not present and, therefore, that the three-judge court should not have abstained from passing upon the constitutional question.

 In Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22, the Supreme Court reversed a three-judge statutory court which had dismissed the complaint in an action under the Civil Rights Act to restrain the defendants from prosecuting the plaintiffs for alleged violations of the Louisiana Subversive Activities and Communist Control Law and Communist Propaganda Control Law. Here, the Supreme Court looked for special circumstances to justify the exercise of federal court jurisdiction rather than for special circumstances to justify a federal court in abstaining to exercise its jurisdiction:


"And in a variety of other contexts the Court has found no special circumstances to warrant cutting short the normal adjudication of constitutional defenses in the course of a criminal prosecution." 380 U.S. at 485, 85 S. Ct. at 1120.

 It found the presence of such special circumstances in Dombrowski and, therefore, reversed the judgment of the three-judge court.

 The complaint in Dombrowski, supported by affidavits and a written offer of proof, alleged that the threats to enforce the statutes were not made with any expectation of securing valid convictions but, rather, were part of a plan to employ arrests, seizures and threats of prosecution under color of the statutes to harass the appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of the citizens of Louisiana. The Supreme Court noted probable jurisdiction in order to resolve a seeming conflict between the decision of the lower court in 227 F. Supp. 556 and the later decision of the Supreme Court in Baggett v. Bullitt, supra, "and to settle important questions concerning federal injunctions against state criminal prosecutions threatening constitutionally protected expression." 380 U.S. at 483, 85 S. Ct. at 1119. There, the good faith of the enforcement officers was attacked. The appellants claimed that these officers invoked and threatened to continue to invoke criminal process without any hope of ultimate success, but only to discourage the civil rights activities of the appellants. Dombrowski and others were arrested by Louisiana state and local police and charged with violations of the two state statutes. Their offices were raided and their files and records seized. At gunpoint their homes and offices were raided and ransacked by police officers and trustees of the House of Detention, acting under the direct supervision of the staff director, and the counsel for the State Un-American Activities Committee. The home and office of the director of the Southern Conference Educational Fund were also raided. Judge Wisdom's dissenting opinion in the court below observed that "Among the dangerous articles removed was Thoreau's Journal." Although the court granted a motion to suppress the seized evidence, Louisiana officials continued to threaten prosecution. The grand jury was summoned to hear evidence looking to indictments of the individuals appellants. Despite a temporary restraining order issued by Judge Wisdom, the district court dissolved that order and dismissed the complaint. Thereafter, the grand jury returned indictments under the two state statutes against the individual appellants. The appellees repeated announcements that the appellant organization was a subversive or Communist-front organization; that its members must register or be prosecuted - these announcements, together with the other events preceding them, frightened off potential members and contributors.

 Under the "special circumstances" present in Dombrowski, the Supreme Court held that this was not a case for the application of the doctrine of abstention:


"We hold the abstention doctrine is inappropriate for cases such as the present one where, unlike Douglas v. City of Jeannette, statutes are justifiably attacked on their face as abridging free expression, or as applied for the purpose of discouraging protected activities." 380 U.S. 489-490, 85 S. Ct. at 1122.

 It found that "the allegations in this complaint depict the situation in which defense of the State's criminal prosecution will not assure adequate vindication of constitutional rights." "Here, no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution * * *." 380 U.S. at 485, 491, 85 S. Ct. at 1120, 1123. But the Court did not repudiate the doctrine of abstention in all cases involving Fourteenth Amendment rights. Where cases do not involve "special circumstances" to justify the exercise of a federal court's equitable powers, it quoted with approval from Douglas, supra:


"In such cases it does not appear that the plaintiffs 'have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith, or that a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford petitioners any protection which they could not secure by prompt trial and appeal pursued to this Court.'" 380 U.S. at 485, 85 S. Ct. at 1120.

 The sound principle of abstention alluded to in Douglas, supra, is questioned by the plaintiff whenever there is a threat or assumed threat of state prosecution in violation of what the plaintiff terms the "right of expression." The plaintiff assumes that the "right of expression" directed at named political personages embraces the right to express opinions as to such persons behind the mask of anonymity. He points to Dombrowski, supra, to support his contention that the defendant in the instant case should be enjoined by this court from prosecuting him in the future for distributing anonymous political literature.

 This court does not find present here the "special circumstances" to justify the exercise of federal judicial equity power. There is no suggestion that the alleged threatened prosecution of the plaintiff in the instant case will be undertaken in bad faith or that the plaintiff's defense to any such prosecution will not assure him adequate vindication of his alleged constitutional rights. In fact, a lower New York state court has already held the statute in question to be unconstitutional for vagueness, People v. Clampitt, supra, and this plaintiff's conviction in 1964 was reversed in People v. Zwickler, supra, for failure of proof that he had distributed anonymous political literature "in quantity." This court has no reason to believe that a court, as enlightened and distinguished as the New York State Court of Appeals, will not assure this plaintiff adequate vindication of his constitutional rights.

 There is available to the plaintiff a state remedy short of asserting defenses in a criminal prosecution. He may, if he desires, institute an action in the state court for a declaratory judgment. N.Y. CPLR § 3001. De Veau v. Braisted, 5 App.Div.2d 603, 174 N.Y.S.2d 596 (2d Dep't 1958), aff'd, 5 N.Y.2d 236, 183 N.Y.S.2d 793, 157 N.E.2d 165 (1959), aff'd, 363 U.S. 144, 80 S. Ct. 1146, 4 L. Ed. 2d 1109 (1960). Should "special circumstances" arise which would not justify further abstention, the parties, of course, may seek appropriate relief in the federal courts.

 The plaintiff's motion for a preliminary injunction is denied. The defendant's motion to dismiss the amended complaint is granted. Settle an order consistent herewith on or before ten (10) days from the date hereof.

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