39 L. Ed. 2d 209, 94 S. Ct. 1002 (1974). In the People's complaint, there are no federal questions raised. Thus, removal under § 1441(b) would not have been proper.
No fees will be awarded to the state concerning this motion. The defendants, in their removal petition, raised at least a colorable claim that federal jurisdiction was proper. Although Carr filed a federal suit in an attempt to stop the enforcement proceeding, there is no evidence that this removal was attempted in order to delay state proceedings although it has had that impact.
III. ABSTENTION IN THE FEDERAL ACTION
We next turn to the motion to dismiss brought by the defendants in Carr v. Axelrod, 798 F. Supp. 168. The complaint mirrors to a large degree the enforcement action brought by the State. Joseph Carr, seeking declaratory and injunctive relief, alleges that New York's Education Law §§ 6521 and 6522, Public Health Law §§ 574 and 577 and General Business Law §§ 349 and 350, the laws that New York is enforcing in the People's case, just remanded above, are unconstitutional because they are overbroad, vague, improperly applied and unrelated to any valid legislative purpose. Plaintiff also seeks damages under 42 U.S.C. § 1983, asserting that the threatened prosecutions under these statutes have had a chilling effect thereby violating his first amendment rights.
The State has moved to dismiss under the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746, established the principle that federal courts may not enjoin state court proceedings. Although set in the context of a criminal proceeding, the Younger rule has been broadened in scope to include all state civil and administrative proceedings in which the important state interests are involved. See Juidice v. Vail, 430 U.S. 327, 51 L. Ed. 2d 376, 97 S. Ct. 1211 (1977) (civil proceeding); Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982) (state administrative proceedings).
In addition to the bar on injunctions, under Younger, federal courts may not provide a plaintiff with declaratory relief when there is a pending state court prosecution. Samuels v. Mackell, 401 U.S. 66, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971). This rule is based on the conclusion that "ordinarily a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid." Id., 401 U.S. at 72. Thus, a person may not seek a federal court declaratory judgment invalidating the statute underlying the state enforcement proceeding. Id., 401 U.S. at 73.
On these principles, it is clear that this court must abstain from deciding the issues raised by the plaintiff in his First through Seventh Federal Claims which challenge the constitutionality of the New York statutes. First, the state may determine that Carr and APC have not violated the state statutes, negating the need to reach the federal question. And second, the state court is competent, should it be necessary, to determine the validity of the New York laws under the United States constitution. These counts are therefore dismissed. Id.
In paragraphs 40 through 42 of his complaint, Carr alleges that his right to free exercise of speech is being violated in contravention of the first amendment to the United States Constitution. Significantly, Carr does not seek damages but instead seeks a declaratory judgment and injunctive relief in addition to costs and attorney's fees. Although the complaint did not state what kind of injunctive relief was being sought, shortly after filing his complaint plaintiff moved for a preliminary injunction, seeking to enjoin the enforcement action brought by the state. It is now clear that through this suit plaintiff is seeking to enjoin a state proceeding, even though he claims that the injunction is sought to protect his first amendment rights. Regardless of Carr's motive, the principles established in Younger are applicable to his § 1983 claim.
See Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 10, 95 L. Ed. 2d 1, 107 S. Ct. 1519 (1987); Mitchum v. Foster, 407 U.S. 225, 230-31, 32 L. Ed. 2d 705, 92 S. Ct. 2151 (1972).
However, the abstention mandated by Younger will not be observed if plaintiff can demonstrate that circumstances satisfy one of the three exceptions to the doctrine: a bad faith prosecution, patently unconstitutional state laws or the absence of an adequate state forum in which to raise the constitutional issues. Younger, 401 U.S. at 53-54. The state laws are not patently unconstitutional. See id. (injunction appropriate if there statute was "flagrantly and patently violative of express constitutional provisions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it"); see State by Lefkowitz v. Fey, 87 Misc.2d 987, 386 N.Y.S.2d 549, 550 (Sup. 1976) (finding §§ 349 and 350 of the G.B.L. to be constitutional). In addition, the plaintiff has an adequate and unbiased forum in the New York state courts to raise his constitutional and federal claims. However, we will carefully consider the bad faith exception in light of the plaintiff's contention that the enforcement proceeding was brought to deter him from exercising his first amendment privilege to speak on the issue of abortion or on what he claims is his first amendment privilege to provide health information to women contemplating abortion.
A federal court may intervene in the state enforcement proceeding only where a plaintiff shows that the irreparable injury is "great and immediate", Younger, 401 U.S. at 46, and proves that harassment or prosecutions were undertaken by state officials in bad faith without no reasonable expectation of prevailing upon their complaint, see Perez v. Ledesma, 401 U.S. 82, 85, 27 L. Ed. 2d 701, 91 S. Ct. 674 (1971). Carr has not shown that he will suffer irreparable harm if the enforcement proceedings are allowed to continue. The State is not attempting to close APC's offices but instead seeks to ensure that APC advertises its services and conducts its business in accordance with state law. New York does not seek to preclude Carr's right to provide health information on abortion nor his right to speak against abortion. The preliminary injunction sought by New York when its enforcement proceeding was pending in the state court requested that the court enjoin APC from, among other things, diagnosing pregnancy without a valid license to practice medicine, administering laboratory tests, advertising under the heading "Birth Control Information Centers," and "Abortion Information Services", and misrepresenting directly or by implication that APC was an abortion or birth control clinic or would make such referrals. The State also requested that APC be required to affirmatively disclose its anti-abortion posture to potential clients. The complaint requests the same relief. No request has been made to limit any content-based speech. Therefore, Carr cannot show that the enforcement proceeding will irreparably damage his first amendment right to speak on the abortion issue.
In addition, Carr cannot show that he has been harassed in bad faith by state officials. One prosecution does not harassment make. Instead, plaintiff must allege and prove a pattern of harassment. See Law Firm of Daniel P. Foster v. Dearie, 613 F. Supp. 278, 281 (E.D.N.Y. 1985). Additionally, he must show that the procedures afforded in the state courts are inadequate to challenge the enforcement proceeding. See Moore v. Sims, 442 U.S. 415, 432, 60 L. Ed. 2d 994, 99 S. Ct. 2371 (1979). Plaintiff cannot meet this standard.
The complaint states in vague and conclusory terms that "this threatened prosecution and harassment of plaintiff is pursuant to a policy, pattern, or practice of political and social discrimination", Complaint, at P 43, and that "plaintiff and all who exercise the rights of freedom of speech, press, association, and/or express unpopular or unorthodox views on social or political issues of contemporary concern touching the problem of abortion . . . are subject to this immediate threat," id. plaintiff cites no specifics but makes reference to a 1987 speech given by Robert Abrams, the Attorney General, in which Abrams describes the efforts of his office to enforce state laws concerning "reproductive choice". Carr claims that this speech reflects the Attorney General's intention to shut down operations such as APC. Moreover, Carr argues that the enforcement proceedings which have been brought against other anti-abortion clinics illustrate the pattern of harassment directed against those who would express anti-abortion views.
However, there are no allegations concerning improper influences on the Attorney General's office
nor has plaintiff suggested the existence of any evidence which would show that the bringing of the enforcement actions is motivated at least in part by a purpose to retaliate against or deter the plaintiff's exercise of his right to speak against abortion. Indeed, the correspondence between the plaintiff and the Assistant Attorney General, appended to the complaint, suggests otherwise. These letters indicate that the State was attempting to modify how the clinics solicited and conducted business and did not intend to interfere with any speech. See, e.g., Letter from W. Harrington to AGA Garin (December 31, 1991), at 2 (clinic agreed to advise client that they may refuse to see or may stop watching an anti-abortion slide show at any time). Finally, plaintiff has not alleged that the state judiciary is impermissibly biased or that there are procedural bars to the presentations of his claims. Thus, we conclude that the bad faith exception to the Younger doctrine is not applicable.
For all of the foregoing reasons, this action is dismissed.
In 92 Civ. 0509, defendants' motion to remand is granted. The clerk will transfer this case to the Supreme Court of New York in Westchester County. Defendants' motion to dismiss the state enforcement action is mooted by the remand. In 92 Civ. 0305, defendants' motion to dismiss is granted. Plaintiff's motion for a preliminary injunction is mooted by the dismissal.
Dated: White Plains, New York
July 15, 1992
GERARD L. GOETTEL