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June 24, 1975



Burger, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist

Author: White

[ 422 U.S. Page 334]

 MR. JUSTICE WHITE delivered the opinion of the Court.

This case poses issues under Younger v. Harris, 401 U.S. 37 (1971), Samuels v. Mackell, 401 U.S. 66 (1971), and related cases, as well as the preliminary question as to our jurisdiction of this direct appeal from a judgment of a three-judge District Court.


On November 23 and 24, 1973, pursuant to four separate warrants issued seriatim, the police seized four copies of the film "Deep Throat," each of which had been shown at the Pussycat Theatre in Buena Park, Orange

[ 422 U.S. Page 335]

     County, Cal.*fn1 On November 26 an eight-count criminal misdemeanor charge was filed in the Orange County Municipal Court against two employees of the theater, each film seized being the subject matter of two counts in the complaint. Also on November 26, the Superior Court of Orange County ordered appellees*fn2 to show cause why "Deep Throat" should not be declared obscene, an immediate hearing being available to appellees, who appeared that day, objected on state-law grounds to the court's jurisdiction to conduct such a proceeding, purported to "reserve" all federal questions, and refused further to participate. Thereupon, on November 27 the Superior Court held a hearing, viewed the film, took evidence, and then declared the movie to be obscene

[ 422 U.S. Page 336]

     and ordered seized all copies of it that might be found at the theater. This judgment and order were not appealed by appellees.*fn3

[ 422 U.S. Page 337]

     Instead, on November 29, they filed this suit in the District Court against appellants -- four police officers of Buena Park and the District Attorney and Assistant District Attorney of Orange County. The complaint recited the seizures and the proceedings in the Superior Court, stated that the action was for an injunction against the enforcement of the California obscenity statute,

[ 422 U.S. Page 338]

     and prayed for judgment declaring the obscenity statute unconstitutional, and for an injunction ordering the return of all copies of the film, but permitting one of the films to be duplicated before its return.

A temporary restraining order was requested and denied, the District Judge finding the proof of irreparable injury to be lacking and an insufficient likelihood of prevailing on the merits to warrant an injunction.*fn4 He requested the convening of a three-judge court, however, to consider the constitutionality of the statute. Such a court was then designated on January 8, 1974.*fn5

Service of the complaint was completed on January 14, 1974, and answers and motions to dismiss, as well as a motion for summary judgment, were filed by appellants. Appellees moved for a preliminary injunction.*fn6 None

[ 422 U.S. Page 339]

     of the motions was granted and no hearings held, all of the issues being ordered submitted on briefs and affidavits. The Attorney General of California also appeared and urged the District Court to follow People v. Enskat, 33 Cal. App. 3d 900, 109 Cal. Rptr. 433 (1973) (hearing denied Oct. 24, 1973), which, after Miller v. California, 413 U.S. 15 (1973) (Miller I), had upheld the California obscenity statute.

Meanwhile, on January 15, the criminal complaint pending in the Municipal Court had been amended by naming appellees*fn7 as additional parties defendant and by adding four conspiracy counts, one relating to each of the seized films. Also, on motions of the defendants in that case, two of the films were ordered suppressed on the ground that the two search warrants for seizing "Deep Throat" last issued, one on November 23 and the other on November 24, did not sufficiently allege that the films to be seized under those warrants differed from each other and from the films previously seized, the final two seizures being said to be invalid multiple seizures.*fn8 Immediately after this order, which was later appealed and reversed, the defense and the prosecution stipulated that for purposes of the trial, which was expected to be forthcoming,

[ 422 U.S. Page 340]

     the four prints of the film would be considered identical and only one copy would have to be proved at trial.*fn9

On June 4, 1974, the three-judge court issued its judgment and opinion declaring the California obscenity statute to be unconstitutional for failure to satisfy the requirements of Miller I and ordering appellants to return to appellees all copies of "Deep Throat" which had been seized as well as to refrain from making any additional seizures. Appellants' claim that Younger v. Harris, 401 U.S. 37 (1971), and Samuels v. Mackell, 401 U.S. 66 (1971), required dismissal of the case was rejected, the court holding that no criminal charges were pending in the state court against appellees and that in any event the pattern of search warrants and seizures demonstrated bad faith and harassment on the part of the authorities, all of which relieved the court from the strictures of Younger v. Harris, supra, and its related cases.

[ 422 U.S. Page 341]

     Appellants filed various motions for rehearing, to amend the judgment, and for relief from judgment, also later calling the court's attention to two developments they considered important: First, the dismissal on July 25, 1974, "for want of a substantial federal question" of the appeal in Miller v. California, 418 U.S. 915 (Miller II), from a judgment of the Superior Court, Appellate Department, Orange County, California, sustaining the constitutionality of the very California obscenity statute which the District Court had declared unconstitutional; second, the reversal by the Superior Court, Appellate Department, of the suppression order which had been issued in the criminal case pending in the Municipal Court, the per curiam reversal citing Aday v. Superior Page 341} Court, 55 Cal. 2d 789, 362 P. 2d 47 (1961), and saying the "requisite prompt adversary determination of obscenity under Heller v. New York... has been held."*fn10

On September 30, the three-judge court denied appellants' motions, reaffirmed its June 4 Younger v. Harris ruling and, after concluding it was not bound by the dismissal of Miller II, adhered to its judgment that the California statute was invalid under the Federal Constitution.

[ 422 U.S. Page 342]

     In response to appellants' claim that they were without power to comply with the June 4 injunction, the films being in the possession of the Municipal Court, the court amended the injunctive portion of its order so as to read as follows: S

"The defendants shall in good faith petition the Municipal Court of the North Orange County Judicial District to return to the plaintiffs three of the four film prints seized from the plaintiffs on November 23 and 24, 1973, in the City of Buena Park."I

Appeals were taken to this Court from both the judgment of June 4 and the amended judgment of September 30. We postponed further consideration of our jurisdiction to the consideration of the merits of the case. 419 U.S. 1018 (1974).*fn11


We deal first with questions about our jurisdiction over this direct appeal under 28 U.S.C. § 1253.*fn12 At the

[ 422 U.S. Page 343]

     outset, this case was concededly a matter for a three-judge court. Appellees' complaint asserted as much, and they do not now contend otherwise.*fn13 Furthermore, on June 4 the District Court declared the California obscenity statute unconstitutional and ordered the return of all copies of the film that had been seized. Appellees do not claim that this order, which would have aborted the pending criminal prosecution, was not an injunction within the meaning of § 1253 and was not appealable here. The jurisdictional issues arise from events that occurred subsequent to June 4.


The first question emerges from our summary dismissal in Miller II. Appellants claimed in the District Court, and claim here, that Miller II was binding on the District Court and required that court to sustain the California obscenity statute and to dismiss the case. If appellants are correct in this position, the question arises whether Miller II removed the necessity for a three-judge court under the rule of Bailey v. Patterson, 369 U.S. 31 (1962), in which event our appellate jurisdiction under 28 U.S.C. § 1253 would also evaporate.

We agree with appellants that the District Court was in error in holding that it could disregard the decision in Miller II. That case was an appeal from a decision by a

[ 422 U.S. Page 344]

     state court upholding a state statute against federal constitutional attack. A federal constitutional issue was properly presented, it was within our appellate jurisdiction under 28 U.S.C. § 1257(2), and we had no discretion to refuse adjudication of the case on its merits as would have been true had the case been brought here under our certiorari jurisdiction. We were not obligated to grant the case plenary consideration, and we did not; but we were required to deal with its merits. We did so by concluding that the appeal should be dismissed because the constitutional challenge to the California statute was not a substantial one. The three-judge court was not free to disregard this pronouncement. As MR. JUSTICE BRENNAN once observed, "[v]otes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case...," Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247 (1959); cp. R. Stern & E. Gressman, Supreme Court Practice 197 (4th ed. 1969) ("The Court is, however, deciding a case on the merits, when it dismisses for want of a substantial question..."); C. Wright, Law of Federal Courts 495 (2d ed. 1970) ("Summary disposition of an appeal, however, either by affirmance or by dismissal for want of a substantial federal question, is a disposition on the merits"). The District Court should have followed the Second Circuit's advice, first, in Port Authority Bondholders Protective Committee v. Port of New York Authority, 387 F.2d 259, 263 n. 3 (1967), that "unless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise"; and, later, in Doe v. Hodgson, 478 F.2d 537, 539, cert. denied sub nom. Doe v. Brennan, 414 U.S. 1096 (1973), that the lower courts are bound by summary

[ 422 U.S. Page 345]

     decisions by this Court "'until such time as the Court informs [them] that [they] are not.'"

Although the constitutional issues which were presented in Miller II and which were declared to be insubstantial by this Court, could not be considered substantial and decided otherwise by the District Court, we cannot conclude that Miller II required that the three-judge court be dissolved in the circumstances of this case.*fn14 Appellees, as plaintiffs in the District Court, not only challenged the enforcement of the obscenity statute but also sought to enjoin the enforcement of the California search warrant statutes, Penal Code §§ 1523-1542 (1970 ed. and Supp. 1975), insofar as they might be applied, contrary to Heller v. New York, 413 U.S. 483 (1973), to permit the multiple seizures that occurred in this case. The application for a preliminary injunction made this aim of the suit quite express. The three-judge court in its June 4 decision declared the obscenity statute unconstitutional and ordered four copies of the film returned. Its constitutional conclusion was reaffirmed on September 30, despite Miller II, and its injunction was to some extent modified. Miller II, however, had nothing to do with the validity of multiple seizures as an issue wholly independent of the validity of the obscenity statutes.

[ 422 U.S. Page 346]

     That issue -- the validity, in light of Heller, of the challenged application of the search warrant statutes -- remained in the case after the Miller II dismissal. Indeed, although the District Court based its injunctive order on the unconstitutionality of the obscenity statutes, the injunction also interfered with the enforcement of the California search warrant statutes, necessarily on constitutional grounds.*fn15 With this question in the case, the three-judge court should have remained in session, as it did, and, as it also did, should have dealt with the Younger issue before reaching the merits of the constitutional issues presented. That issue, however, as we show in Part III, was not correctly decided.


[ 422 U.S. Page 347]

     Appellees contend (1) that under Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90 (1974), and MTM, Inc. v. . Baxley, 420 U.S. 799 (1975), the only injunctions issued by properly convened three-judge courts that are directly appealable here are those that three-judge courts alone may issue and (2) that the injunction finally issued on September 30 was not one that is reserved to a three-judge court under 28 U.S.C. § 2281. Even if appellees' premise is correct, but see Philbrook v. Glodgett, 421 U.S. 707, 712-713, n. 8 (1975), we cannot agree with the conclusion that the injunction entered here was not appealable. Not only was a state statute declared unconstitutional but also the injunctive order, as amended September 30, 1974, required appellants to seek the return of the three prints of "Deep Throat" which were the subject of nine of the 12 counts of the amended criminal complaint still pending in the Municipal Court. Return of the copies would prohibit their use as evidence and would, furthermore, prevent their retention and probable destruction as contraband should the State prevail in the criminal case. Plainly, the order interfered with the pending criminal prosecution and with the enforcement of a state obscenity statute. In the circumstances here, the injunctive order, issued as it was by a federal court against state authorities, necessarily rested on federal constitutional grounds. Aside from its opinion that the California statute was unconstitutional, the District Court articulated no basis for assuming authority to order the return of the films and in effect to negate not only three of the four seizures under state search warrants, which the Appellate Department of the Superior Court had upheld, but also the proceedings in the Superior Court that had declared the film to be obscene

[ 422 U.S. Page 348]

     and seizable.*fn16 The District Court's June 4 opinion, we think, made its constitutional thesis express: S

"The gravamen of the defendants' justification is, of course, that the property is contraband, both the evidence and the fruit of an illegal activity. Such a justification, however, dissipates in the face of a declaration by this court that the statute is invalid."I

We accordingly conclude that the September 30 injunction, as well as the declaratory judgment underlying it, is properly before the Court.


The District Court committed error in reaching the merits of this case despite the Appellant's insistence that it be dismissed under Younger v. Harris, 401 U.S. 37 (1971), and Samuels v. Mackell, 401 U.S. 66 (1971). When they filed their federal complaint, no state criminal proceedings were pending against appellees by name; but two employees of the theater had been charged and four copies of "Deep Throat" belonging to appellees had been seized, were being held, and had been declared to be obscene and seizable by the Superior Court. Appellees had a substantial stake in the state proceedings, so much so that they sought federal relief, demanding that the state statute be declared void and their films be returned to them. Obviously, their interests and those of their employees were intertwined;

[ 422 U.S. Page 349]

     and, as we have pointed out, the federal action sought to interfere with the pending state prosecution. Absent a clear showing that appellees, whose lawyers also represented their employees, could not seek the return of their property in the state proceedings and see to it that their federal claims were presented there, the requirements of Younger v. Harris could not be avoided on the ground that no criminal prosecution was pending against appellees on the date the federal complaint was filed. The rule in Younger v. Harris is designed to "permit state courts to try state cases free from interference by federal courts," 401 U.S., at 43, particularly where the party to the federal case may fully litigate his claim before the state court. Plainly, "[t]he same comity considerations apply," Allee v. Medrano, 416 U.S. 802, 831 (1974) (BURGER, C.J., concurring), where the interference is sought by some, such as appellees, not parties to the state case.

What is more, on the day following the completion of service of the complaint, appellees were charged along with their employees in Municipal Court. Neither Steffel v. Thompson, 415 U.S. 452 (1974), nor any other case in this Court has held that for Younger v. Harris to apply, the state criminal proceedings must be pending on the day the federal case is filed. Indeed, the issue has been left open;*fn17 and we now hold that where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v. Harris should apply in full force. Here, appellees were charged

[ 422 U.S. Page 350]

     on January 15, prior to answering the federal case and prior to any proceedings whatsoever before the three-judge court. Unless we are to trivialize the principles of Younger v. Harris, the federal complaint should have been dismissed on the Appellant's motion absent satisfactory proof of those extraordinary circumstances calling into play one of the limited exceptions to the rule of Younger v. Harris and related cases.*fn18

The District Court concluded that extraordinary circumstances had been shown in the form of official harassment and bad faith, but this was also error. The relevant findings of the District Court were vague and conclusory.*fn19 There were references to the "pattern of

[ 422 U.S. Page 351]

     seizure" and to "the evidence brought to light by the petition for rehearing"; and the unexplicated conclusion was then drawn that "regardless of the nature of any judicial proceeding," the police were bent on banishing "Deep Throat" from Buena Park. Yet each step in the pattern of seizures condemned by the District Court was authorized by judicial warrant or order; and the District Court did not purport to invalidate any of the four warrants, in any way to question the propriety of the proceedings in the Superior Court,*fn20 or even to mention the reversal of the suppression order in the Appellate Department of that court. Absent at least some effort by the District Court to impeach the entitlement of the prosecuting officials to rely on repeated judicial authorization for their conduct, we cannot agree that bad faith and harassment were made out. Indeed, such conclusion would not necessarily follow even if it were shown that the state courts were in error on some one or more issues of state or federal law.*fn21

[ 422 U.S. Page 352]

     In the last analysis, it seems to us that the District Court's judgment rests almost entirely on its conclusion that the California obscenity statute was unconstitutional and unenforceable. But even assuming that the District Court was correct in its conclusion, the statute had not been so condemned in November 1973, and the District Court was not entitled to infer official bad faith merely because it -- the District Court -- disagreed with People v. Enskat. Otherwise, bad faith and harassment would be present in every case in which a state statute is ruled unconstitutional, and the rule of Younger v. Harris would be swallowed up by its exception. The District Court should have dismissed the complaint before it and we accordingly reverse its judgment.

So ordered.


I join the opinion of the Court but I add a word about the composition of the three-judge District Court and the circumstances under which it was convened. Under 28 U.S.C. § 2284(1) the district judge to whom the application for relief is presented, and who notifies the chief judge of the need to convene the three-judge court, "shall constitute one member of such court." It is well settled that "shall" means "must," cf. Merced Rosa v. Herrero, 423 F.2d 591, 593 n. 2 (CA1 1970), yet the judge who called for the three-judge court here was not named to the panel. However, appellants made no timely objection to the composition of the court. Ante, at 338 n. 5. Obviously occasions can arise rendering it impossible for the district judge who initiates the convening of such a court under § 2284(1) to serve on the court, but, in light of the unqualified mandatory language of the statute, when that occurs there is an obligation to

[ 422 U.S. Page 353]

     see to it that the record reveal, at the very least, a statement of the circumstances accounting for the substitution.


There are many aspects of the Court's opinion that seem to me open to serious challenge. This dissent, however, is directed only to Part III of the opinion, which holds that "[t]he District Court committed error in reaching the merits of this case despite the appellant's insistence that it be dismissed under Younger v. Harris... and Samuels v. Mackell...."

In Steffel v. Thompson, 415 U.S. 452, the Court unanimously held that the principles of equity, comity, and federalism embodied in Younger v. Harris, 401 U.S. 37, and Samuels v. Mackell, 401 U.S. 66, do not preclude a federal district court from entertaining an action to declare unconstitutional a state criminal statute when a state criminal prosecution is threatened but not pending at the time the federal complaint is filed. Today the Court holds that the Steffel decision is inoperative if a state criminal charge is filed at any point after the commencement of the federal action "before any proceedings of substance on the merits have taken place in the federal court." Ante, at 349. Any other rule, says the Court, would "trivialize" the principles of Younger v. Harris. I think this ruling "trivializes" Steffel, decided just last Term, and is inconsistent with those same principles of equity, comity, and federalism.*fn1

[ 422 U.S. Page 354]

     There is, to be sure, something unseemly about having the applicability of the Younger doctrine turn solely on the outcome of a race to the courthouse. The rule the Court adopts today, however, does not eliminate that race; it merely permits the State to leave the mark later, run a shorter course, and arrive first at the finish line. This rule seems to me to result from a failure to evaluate the state and federal interests as of the time the state prosecution was commenced.

As of the time when its jurisdiction is invoked in a Steffel situation, a federal court is called upon to vindicate federal constitutional rights when no other remedy is available to the federal plaintiff. The Court has recognized that at this point in the proceedings no substantial state interests counsel the federal court to stay its hand. Thus, in Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, we noted that "considerations of equity practice and comity in our federal system... have little force in the absence of a pending state proceeding." Id., at 509. And in Steffel, a unanimous Court explained the balance of interests this way: S

"When no state criminal proceeding is pending at

[ 422 U.S. Page 355]

     the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court's ability to enforce constitutional principles. In addition, while a pending state prosecution provides the federal plaintiff with a concrete opportunity to vindicate his constitutional rights, a refusal on the part of the federal courts to intervene when no state proceeding is pending may place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding." 415 U.S., at 462.%

Consequently, we concluded that "[r]equiring the federal courts totally to step aside when no state criminal prosecution is pending against the federal plaintiff would turn federalism on its head." Id., at 472. In such circumstances, "the opportunity for adjudication of constitutional rights in a federal forum, as authorized by the Declaratory Judgment Act, becomes paramount." Ellis v. Dyson, 421 U.S. 426, 432. See also Huffman v. Pursue, Ltd., 420 U.S. 592, 602-603.

The duty of the federal courts to adjudicate and vindicate federal constitutional rights is, of course, shared with state courts, but there can be no doubt that the federal courts are "the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States." F. Frankfurter & J. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 65 (1927). The statute under which this action was brought, 42 U.S.C. § 1983, established in our law "the role

[ 422 U.S. Page 356]

     of the Federal Government as a guarantor of basic federal rights against state power." Mitchum v. Foster, 407 U.S. 225, 239. Indeed, "[t]he very purpose of § 1983 was to interpose the federal courts between the States and the people." Id., at 242. See also Zwickler v. Koota, 389 U.S. 241, 245, 248; McNeese v. Board of Education, 373 U.S. 668; Monroe v. Pape, 365 U.S. 167. And this central interest of a federal court as guarantor of constitutional rights is fully implicated from the moment its jurisdiction is invoked. How, then, does the subsequent filing of a state criminal charge change the situation from one in which the federal court's dismissal of the action under Younger principles "would turn federalism on its head" to one in which failure to dismiss would "trivialize" those same principles?

A State has a vital interest in the enforcement of its criminal law, and this Court has said time and again that it will sanction little federal interference with that important state function. E.g., Kugler v. Helfant, 421 U.S. 117. But there is nothing in our decision in Steffel that requires a State to stay its hand during the pendency of the federal litigation. If, in the interest of efficiency, the State wishes to refrain from actively prosecuting the criminal charge pending the outcome of the federal declaratory judgment suit, it may, of course, do so. But no decision of this Court requires it to make that choice.

The Court today, however, goes much further than simply recognizing the right of the State to proceed with the orderly administration of its criminal law; it ousts the federal courts from their historic role as the "primary reliances" for vindicating constitutional freedoms. This is no less offensive to "Our Federalism" than the federal injunction restraining pending state criminal proceedings condemned in Younger v. Harris. The concept of federalism requires "sensitivity to the legitimate interests

[ 422 U.S. Page 357]

     of both State and National Governments." 401 U.S., at 44 (emphasis added). Younger v. Harris and its companion cases reflect the principles that the federal judiciary must refrain from interfering with the legitimate functioning of state courts. But surely the converse is a principle no less valid.

The Court's new rule creates a reality which few state prosecutors can be expected to ignore. It is an open invitation to state officials to institute state proceedings in order to defeat federal jurisdiction.*fn2 One need not impugn the motives of state officials to suppose that they would rather prosecute a criminal suit in state court than defend a civil case in a federal forum. Today's opinion virtually instructs state officials to answer federal complaints with state indictments. Today, the State must file a criminal charge to secure dismissal of the federal litigation; perhaps tomorrow an action "akin to a criminal proceeding" will serve the purpose, see Huffman v. Pursue, Ltd., supra; and the day may not be far off when any state civil action will do.

The doctrine of Younger v. Harris reflects an accommodation of competing interests. The rule announced today distorts that balance beyond recognition.

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