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SUTHERLAND v. DEWULF

February 23, 1971

LINDA MARIE SUTHERLAND, ROXANA MARGURITE SCHULTZ AND TONIA SUE PAPKE, PLAINTIFFS,
v.
JAMES N. DEWULF, AS STATE'S ATTORNEY OF ROCK ISLAND COUNTY, ILLINOIS, DEFENDANT.



Before Pell, Circuit Judge, Poos, Chief District Judge, and Morgan, District Judge.

The opinion of the court was delivered by: Robert D. Morgan, District Judge.

OPINION AND ORDER

This cause is before the court on defendant's motion to dismiss. Plaintiffs are seeking declaratory and injunctive relief under 28 U.S.C. § 1343(3), 2201, 2202 and 42 U.S.C. § 1983. The complaint requests that the second paragraph of § 6 of chapter 56 1/4, Illinois Revised Statutes, be declared void on its face as in conflict with the Constitution of the United States; and that the defendant be permanently enjoined from prosecuting the plaintiffs based upon the aforesaid statute. This three-judge court was convened because the requests for relief properly invoke the provisions of Title 28, United States Code, §§ 2281 and 2284.

Defendant admits by answer on file that the plaintiffs have been indicted for violation of the challenged Illinois statute and that the case, numbered 70 Y 393, is now pending against them in the Rock Island County Circuit Court, General Division. The indictment was returned on May 28, 1970 and recites in pertinent part that the plaintiffs herein

  "* * * committed the offense of PUBLICLY MUTILATING A
  FLAG OF THE UNITED STATES, in that they did * * *
  knowingly and publicly mutilate a flag of the United
  States by burning said flag in a public place,
  to-wit: before the Rock Island Post Office, Rock
  Island, Illinois, in violation of Section 6, Chapter
  56 1/4 of the Illinois Revised Statutes, 1969."

The indictment is clearly based upon the second paragraph of the subject statute which reads as follows:

  "Any person who publicly mutilates, defaces, defiles
  or defies, tramples or casts contempt upon, whether
  by words or act, any such flag [the flag of the
  United States or the State of Illinois] standard,
  color or ensign shall be punished by a fine of not
  less than $1,000 nor more than $5,000 or by
  imprisonment in the penitentiary from one to 5 years
  or both."

One of the plaintiffs, Roxana Margurite Schultz, moved to dismiss the indictment in the state court and said motion was denied on July 23, 1970. The defendant advised this court that he would not proceed with the pending prosecution until a decision in this cause was made, so no injunction pendente lite was considered.

It is apparent that the constitutionality of the statute is the vital issue of law on the pending motion. After receiving briefs from counsel and oral argument on January 15, 1971, several substantial questions are before the court for decision.

I.

The first question that this court must decide is whether this cause presents a proper situation for the application of the abstention doctrine.*fn1 The defendant has urged this court, both in his brief and in oral argument, to apply the abstention doctrine and thereby to abstain from ruling on the merits of the plaintiffs' federal claims in order to give the state courts an opportunity to vindicate them. The application of the abstention doctrine would involve a discretionary exercise of the court's equity powers. Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). Nevertheless, it is clear that the abstention doctrine should not be exercised in this case.

Here, the plaintiffs are attacking the statute on its face, alleging that it is violative of the First Amendment to the Constitution of the United States as applied to the states through the Fourteenth Amendment. The plaintiffs allege that the statute is void on its face because it is overbroad, making various types of conduct illegal which may not be made illegal. The Supreme Court in the recent case of Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), has made it abundantly clear that where the plaintiffs are asserting that a state statute is violative of the First Amendment on its face for overbreadth and where they are requesting declaratory relief as well as injunctive relief, district courts should not abstain from deciding the case on the merits. The Court in Zwickler, speaking through Mr. Justice Brennan, noted that following the Civil War "nationalism dominated political thought" and Congress greatly increased the powers of the federal judiciary. Zwickler v. Koota, supra at 246-247, 88 S.Ct. 391. The Court then stated at 248, 88 S.Ct. at 395:

  "In thus expanding federal judicial power, Congress
  imposed the duty upon all levels of the federal
  judiciary to give due respect to a suitor's choice of
  federal forum for the hearing and decision of his
  federal constitutional claims."

The Court, in Zwickler, did point out, however, that under "special circumstances," as where the state statute is susceptible to a "construction by the state courts that would avoid or modify the constitutional question," a district court might properly abstain. Zwickler v. Koota, supra at 249, 88 S.Ct. at 396; see also Baggett v. Bullitt, 377 U.S. 360, 375-379, 84 S.Ct. 1316 (1964). In view of the broad language of the statute involved in this case, it seems clear that no state court construction is possible that would avoid or render unnecessary the plaintiffs' constitutional challenge of the statute on its face. Furthermore, the court sees no other "special circumstances" which might warrant its abstention herein. The plaintiffs' choice of forum should be respected. This court decides, therefore, that this cause does not present a proper situation for invoking the abstention doctrine and that it will decide the issues presented on their merits.

II.

The second question before the court is whether the statutory provision challenged here is unconstitutional as applied to the three plaintiffs in the state court proceedings. As stated above, the plaintiffs are charged in the state indictment with the "offense of PUBLICLY MUTILATING A FLAG OF THE UNITED STATES, in that they did * * * knowingly and publicly mutilate a flag of the United States by burning it." The statute under which the indictment was returned provided for the punishment of "[a]ny person who publicly mutilates" the flag of the United States. The issue then becomes whether a ...


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