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July 3, 1968


The opinion of the court was delivered by: Will, District Judge.


Both the city and county defendants have moved to dismiss this action in its present posture, contending that federal forebearance to the competency of the courts of Illinois is appropriate under the doctrine of abstention and that the federal anti-injunction statute, 28 U.S.C. § 2283, bars federal equitable relief. These contentions are substantially similar to the arguments for dismissal advanced by the defendants on two previous occasions during the course of this litigation, but differ in substance and significance because of the present status of the case. It is necessary, therefore, to review the history of this case in order that these contentions may be placed in proper perspective.

Plaintiffs filed their complaint on October 27, 1967. Simultaneously, they moved that a three-judge court be convened to hear and determine the issues presented therein. The complaint alleges, essentially, that certain state statutes and ordinances of the City of Chicago were unconstitutionally broad, vague and indefinite regulations of speech and peaceful assembly*fn1 and that these statutes and ordinances were being applied in an unconstitutional manner for the purpose of discouraging the plaintiffs' civil rights activities. On the basis of these allegations, the plaintiffs sought a declaration of the unconstitutionality of these statutes and ordinances and/or the illegality of the application of these statutes and ordinances to their conduct. Plaintiffs also sought the issuance of injunctions restraining the defendants from enforcing these statutes and ordinances and from "impeding, intimidating, hindering, and preventing plaintiffs" from exercising their constitutional rights of speech and peaceful assembly.

Shortly after the filing of the complaint, the municipal and county defendants moved to dismiss on the grounds, inter alia, that the complaint failed to disclose a basis for equitable relief, that the doctrine of federal abstention was applicable, and that the federal anti-injunction statute barred the entry of an injunction against the defendants in regard to those criminal proceedings currently pending in the Illinois state courts. An opinion denying these motions was issued on December 28, 1967.*fn2 The complaint was found to raise several substantial constitutional issues and to allege a formal basis for equitable relief. It was further determined that plaintiffs' claims regarding the challenged state statutes presented questions solely within the competency of a three-judge court. The plaintiffs' claims regarding the challenged city ordinances, however, were found to be inappropriate for determination by a three-judge court. Accordingly, these claims were severed from those involving the state statutes for consideration by a single-judge court.*fn3 At that time, the questions of abstention and the applicability of the anti-injunction statute were deemed premature.*fn4

The claims regarding the state statutes were certified to a three-judge tribunal. A determination of the alleged unconstitutional application of the statutes was held in abeyance and on January 27, 1968, a hearing was held. At this hearing plaintiffs confined their challenge to the constitutionality of the Illinois "Mob Action,"*fn5 "Resisting or Obstructing a Peace Officer,"*fn6 and "Intimidation"*fn7 statutes. The challenges asserted in the complaint to the "Aggravated Assault"*fn8 and "Aggravated Battery"*fn9 statutes were abandoned. Although defendants confined their argument to the constitutionality of the challenged statutes, in their briefs they reasserted their contentions regarding the applicability of the abstention doctrine and the anti-injunction statute and the impropriety of federal equitable relief.

On March 4, 1968, the three-judge court filed its written opinion.*fn10 Following the principles announced by the Supreme Court in Dombrowski v. Pfister, 380 U.S. 479, 485-486, 489-492, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), and Zwickler v. Koota, 389 U.S. 241, 249-252, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), abstention was deemed inappropriate and a ruling was issued on the constitutionality of the challenged statutes. Sub-sections (a)(2) of the "Mob Action"*fn11 and (a)(3) of the "Intimidation"*fn12 statutes were found to be vague and overly broad. The remaining sub-sections of these statutes and the "Resisting or Obstructing a Peace Officer"*fn13 statute were found consistent with principles of procedural and substantive due process. A declaratory judgment was therefore issued declaring the indicated sub-sections of the "Mob Action" and "Intimidation" statutes unconstitutional, null and void under the due process clause of the Fourteenth Amendment to the Constitution of the United States. The remainder of each of these statutes and the "Resisting" statutes were declared valid. Although an injunction was not issued, the three-judge court retained jurisdiction to determine the other claims presented in the plaintiffs' complaint and "to render additional relief if necessary."*fn14

The claims regarding the municipal ordinances, which had been reserved for single-judge determination, were likewise split. A determination of the alleged unconstitutional application of the ordinances was held in abeyance and a hearing was held at which only the validity of the two challenged city ordinances was argued. At this hearing, the municipal defendants raised the same questions concerning the applicability of the abstention doctrine and the anti-injunction statute that the county defendants raised in the three-judge hearing.

An injunction against the enforcement of these ordinances was not issued at the time of this declaration. The Court, however, retained jurisdiction, and on March 18, 1968, a prospective injunction was entered proscribing any future enforcement of the ordinances or the institution of any new prosecutions under them. At the same time, the Court announced that it would make ad hoc determinations in those pending cases brought to its attention as to whether or not there was sufficient cause for prosecution and that it would exercise its equitable powers only in those pending cases, including those involving the plaintiffs, in which the prosecution was predicated solely on activities protected by the First Amendment to the United States Constitution.*fn16

On June 5, 1968, the three-judge court divested itself of jurisdiction over the claims raised in the complaint concerning the alleged unconstitutional application of certain state statutes and ordered the return of these claims to this court.*fn17 At this time, therefore, this Court has all the remaining claims of the plaintiffs, relating to enforcement of both the state statutes and the municipal ordinances.

Since the declaratory judgment by the three-judge court, the prosecutions originally brought against certain plaintiffs under sub-section (a)(2) of the "Mob Action" statute have been dismissed by the county officials. The prosecutions instituted against certain other plaintiffs under the "Resisting" statute and other sub-sections of the "Mob Action" statute, which were declared valid by the three-judge court, are still pending. Some of these prosecutions also involve charges of "Aggravated Assault" and "Aggravated Battery." Similarly, a number of the plaintiffs face prosecution by the municipal officials under the "Disorderly Conduct" and "Obstructing" ordinances, which were declared invalid by this Court. Plaintiffs' remaining contentions are directed towards these prosecutions.

Essentially, plaintiffs claim that the statutes and ordinances under which these prosecutions have been instituted have been applied in an unconstitutional manner for the purpose of discouraging the plaintiffs' civil rights activities. The complaint specifically alleges that the defendants have purposefully entered into a plan or scheme of concerted and joint action among themselves and with other persons unknown to the plaintiffs to deprive the plaintiffs of rights, privileges and immunities secured to them by the Constitution and laws of the United States.

Pursuant to this plan, the defendants have allegedly prosecuted and threatened to prosecute the plaintiffs and other members of the class they allegedly represent under the color and authority of these statutes and ordinances. It is alleged that certain plaintiffs and other members of the class were arrested without warrants or probable cause, that prosecutions based on these statutes and ordinances were then instituted against them, and that they have been held on unreasonable and exorbitant bail. The complaint asserts further that these arrests and prosecutions, as well as threats of future enforcement of the statutes and ordinances, have been made by the defendants without any expectation of securing valid convictions, but rather are part of a plan to employ arrest, detention on excessive bail and threats of prosecution to harass plaintiffs and their supporters and to discourage them from asserting and exercising their civil rights.

It is this remaining portion of the case which both the county and municipal defendants seeks to have dismissed. The motion by the county defendants*fn18 urges the Court to abstain from deciding these claims as they relate to the propriety or impropriety of the application of the state criminal statutes in question. They point out that eight of the plaintiffs are charged with violations of statutory provisions which were either held valid by the three-judge court or were not challenged by the plaintiffs in the earlier proceedings and that these prosecutions were commenced prior to the filing of this action. The claims presently before this Court, they argue, are matters of legal defense and should be asserted in the state criminal proceedings. They assert that such a disposition is dictated by the principles of the doctrine of abstention and the anti-injunction statute, 28 U.S.C. § 2283.

Specifically, they contend that interdiction of state criminal proceedings by a federal district court is justified only under the most extraordinary circumstances. The cases of Dombrowski v. Pfister*fn19 and Zwickler v. Koota*fn20 which the three-judge court relied upon in its earlier rulings, it is argued, are factually distinguishable from the present posture of this case, in that they involved challenges to the constitutionality of state statutes themselves and not to the application of those statutes to pending cases. Neither Dombrowski nor Zwickler, defendants contend, authorize the interruption by a federal district court of a state proceeding involving a valid criminal statute. Rather, they assert, in both cases the Supreme Court recognized the continuing validity of the principle that the federal courts should forebear from the exercise of their federal jurisdiction in such circumstances. Moreover, they urge that the recent decision of Zwickler v. Boll*fn21 reaffirms this distinction and conclusion.

Similarly, the municipal defendants urge the Court to abstain from determining the propriety of the application of the "Disorderly Conduct" and "Obstructing or Resisting a Police Officer" ordinances to the plaintiffs' conduct. In support of this motion these defendants "adopt and incorporate by reference" the memorandum propounded by the county defendants in support of their motion.

It should be noted, however, that the questions presented by the respective motions of the county and municipal defendants are not exactly the same. The prosecutions in which the county officials intend to proceed are based on valid statutory provisions, while those in which the municipal officials intend to proceed are based upon two city ordinances which have been declared unconstitutional. A prosecution based on such vague and overly broad provisions may itself be a violation of due process,*fn22 and a federal injunction would be proper under such circumstances according to the rationale of both the Dombrowski*fn23 and Zwickler*fn24 decisions. Nevertheless, since this Court has declined to issue a blanket injunction against all the pending prosecutions instituted under these ordinances, the present motions by the city and county defendants will be treated as analogous.

The Questions of Abstention and Equitable Relief

The essence of the issue posed by the defendants is the proper scope of federal intervention in state court proceedings. The defendants' position is that federal intervention is customarily limited to Supreme Court review after an ultimate disposition by the state courts. The premise on which this position rests is that the principle of federalism requires the avoidance, so far as possible, of direct and immediate interdiction of the autonomy of local law enforcement institutions.*fn25 Intervention, then, is permissible only if, as in the case of Supreme Court review, it follows state refusal to honor federal rights.

It is true, as a general proposition, that the federal courts have, except in unusual circumstances, refused to entertain collateral attacks upon state criminal proceedings. This refusal, of course, has been based, in part, on considerations of federalism, i.e., deference to local autonomy. Nevertheless, there is no automatic or absolute rule of forebearance by federal courts whenever the autonomy of local law enforcement institutions might be affected directly and immediately. Our federal system presupposes the supremacy of federal constitutional guarantees and federally protected statutory rights. State refusal to honor these guarantees and rights can also jeopardize the federal system. Inherent in any collateral proceeding, such as the instant suit, in which a federal court is called upon to render judgment on the action taken by a state in enforcing its laws, therefore, are conflicting considerations of federal supremacy and local autonomy.

Initially, it must be recognized that the propriety of such a collateral proceeding involves two different questions: 1) whether traditional limitations on federal equitable relief are applicable, and 2) whether abstention is appropriate.*fn26 Although these questions may overlap in any particular suit, they are not synonymous. Both the traditional limitation doctrine and the abstention doctrine can roughly be said to embody principles of judicial federalism and to dictate federal deference to the competency of state tribunals, but the tests which determine their applicability are not identical. Each is an outgrowth of a separate line of cases.

Traditionally, the equitable power of a federal court may properly be invoked only where there is an absence of a plain and adequate remedy at law and the plaintiff would otherwise be subject to imminent, irreparable injury.*fn27 Where a federal court has been called upon to enjoin a state criminal proceedings, this equitable power has been further qualified by considerations of federalism. Historically, these considerations may be traced back to the case of In re Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402 (1888), in which the Supreme Court held that a federal court does not have the jurisdiction or power to try and determine issues involved in a state proceeding, whether criminal, civil, or administrative in nature, or to enjoin state officers and tribunals from holding such a proceeding. Id. at 221-222, 8 S.Ct. 482. This holding was modified, if not completely rejected, 20 years later. In the landmark case of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court recognized that federal courts would be justified in exercising their power to enjoin state proceedings where state officials "threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution." Id. at 156, 28 S.Ct. at 452.

Broad application of the principle announced in Ex parte Young, of course, would have permitted federal interdiction of state proceedings and a federal determination of the constitutionality of any questionable state statute at the insistence of anyone threatened by its application. In subsequent decisions, however, the Supreme Court required or sanctioned forebearance from federal interference with state court proceedings.*fn28 Mingling considerations of federalism with traditional notions of equity, the Court adopted a rigorous application of the general limitations upon equitable relief. The normal adjudication of constitutional defenses was held to afford parties an adequate remedy at law. Similarly, the mere possibility of an erroneous initial application of constitutional standards was considered not to amount to irreparable injury necessary to justify a disruption of state proceedings.

Perhaps the most dramatic example of the impact of these principles is found in Douglas v. City of Jeanette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), which involved a collateral suit in a Pennsylvania federal district court, attacking the application of a city ordinance to religious solicitations. After a trial, the district court held the ordinance invalid and enjoined the defendants (city officials) from enforcing the statute against the plaintiffs. On appeal, the Court of Appeals for the Third Circuit sustained the jurisdiction of the district court, but reversed on the merits.*fn29 The Supreme Court subsequently granted certiorari and set the case for argument with Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943), which involved the review of a criminal conviction for religious solicitation under the same ordinance.

In Douglas, the Court summarized the applicable principles, stating,

    Notwithstanding the authority of the district
  court, as a federal court, to hear and dispose of the
  case, petitioners are entitled to the relief prayed
  only if they establish a cause of action in equity.
  Want of equity jurisdiction, while not going to the
  power of the court to decide the cause * * * may
  nevertheless, in the discretion of the court, be
  objected to on its own motion. * * * Especially
  should it do so where its powers are invoked to
  interfere by injunction with threatened criminal
  prosecutions in a state court.
    It is a familiar rule 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
  guaranties, 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 officials for alleged
  violations 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." * * * 319 U.S. at 162-164, 63 S.Ct.
  at 881.

The Court concluded that there was "the want of equity in the cause,"*fn30 stating,

    It does not appear from the record that petitioners
  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

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