Cummings, Pell and Stevens, Circuit Judges. Pell, Circuit Judge (dissenting).
At the conclusion of oral argument on June 29, 1972, this court entered an order vacating the injunction issued by the district court on June 9, 1972. This memorandum will briefly summarize the proceedings and the basis for our conclusion that the injunction had been improvidently entered.
This litigation was commenced on May 3, 1972, when plaintiffs, to whom we will sometimes refer as "Cousins, et al.," filed their complaint in the United States District Court for the Northern District of Illinois. The material facts are as follows:
On April 18, 1972, the Secretary of State of the State of Illinois proclaimed that defendant Wigoda and certain other persons (hereinafter sometimes referred to as "Wigoda, et al.") had been duly elected as delegates to the 1972 Democratic Convention. The complaint alleged that Wigoda represented a class of delegates and alternates from eight specific Illinois congressional districts.
Cousins, et al., are residents of Cook County, who on March 31, 1972, filed with the Credentials Committee of the Convention a notice of intent to challenge the seating of Wigoda, et al., at the Convention. On April 6, 1972, plaintiffs filed a statement of grounds for the challenge alleging, in substance, that defendant Wigoda and members of his group had been selected as delegates in violation of the Rules of the National Democratic Party. Neither the challenge nor the complaint before us charged that there had been any violation of the Illinois Election Code or that any question as to the eligibility of Wigoda, et al., had been raised before the election was conducted.
On April 19, 1972, the day after the Secretary of State certified the results of the Illinois election, defendant Wigoda filed a complaint for injunction and other relief and a motion for preliminary injunction in the Circuit Court of Cook County. That complaint (hereinafter "the state complaint") alleged in detail that Wigoda, et al., had complied with the various provisions of the Illinois Election Code pertaining to the election of delegates to the Convention, described the filing of the challenges and statement of grounds with the Credentials Committee of the Convention, and alleged that the challenge, if successful, would interfere with Wigoda's right to serve as a delegate and undermine the results of an election lawfully conducted in compliance with Illinois law. The state complaint prayed for a judgment declaring that Wigoda, et al., had been duly elected and were therefore entitled to be seated at the Convention and to fully participate therein. The state complaint further prayed: "That defendants be enjoined from taking any action, the purpose, intent or effect of which would be to interfere with or impede the functioning of plaintiff and the delegates and alternates in their duly elected office." After filing the state complaint on April 19, Wigoda's counsel notified Cousins, et al., that a motion for a preliminary injunction would be presented before Judge O'Brien on April 21 at 10:00 o'clock A.M.
On April 20 the Cousins group removed the state litigation to the federal court. Wigoda then moved in the federal court for an order remanding the case to the Circuit Court of Cook County. That motion was taken under advisement and finally granted on May 18, 1972. However, on that date the district judge stayed the remand for ten days to permit review by this court. We extended the stay in order to receive briefs from the parties; on June 7 we terminated the stay, finding that "the probability of a successful appeal is minimal."
Meanwhile, as already noted, the federal complaint was filed on May 3, 1972. In that complaint Cousins, et al., described the challenge which they had filed with the Credentials Committee of the Democratic Convention and the state complaint filed on behalf of Wigoda, et al. They further alleged that they were preparing to hold political meetings and caucuses within the City of Chicago to select persons, pursuant to the Rules of the Democratic Party, to represent Democrats from the City of Chicago at the 1972 Convention; that the state complaint was "frivolous as a matter of law," but nevertheless the threat of a circuit court injunction "discourages persons from participating in the political meetings and processes" which are being carried on for the purpose of challenging the elected delegates and selecting substitutes.
On May 25, 1972, Judge McGarr entered a temporary restraining order. He found that to the extent that the state complaint sought to prevent the Cousins group from going forward with their challenges under the Democratic Party Rules or from speaking, meeting, or preparing to seek recognition of an alternate slate of delegates, it sought an unsupportable interference with Cousins, et al.'s constitutionally protected rights, and must be construed to be on its face indicative of sufficient bad faith and harassment to warrant the intervention of the federal court.
On June 9, 1972, the court conducted a hearing on the Cousins motion for preliminary injunction. The plaintiffs presented three witnesses: Witness Bode described the development of certain socalled "reform rules" of the Democratic National Convention. Witness Singer described the progress of the challenge before the Credentials Committee and the adverse effect of a possible injunction. Witness Barbara Hillman testified that her husband had expressed concern about her and her sister's involvement because of a possible injunction. The district court then reaffirmed the findings which it had made on May 25, 1972, in support of the temporary restraining order, and stated that the evidence heard on June 9 established that the pendency of a prayer for injunctive relief in the state complaint "does have something of a chilling effect on the caucusing and other described activities of the plaintiffs in connection with their challenge to the elected delegates." He found that to the extent that the state complaint sought injunctive relief it was brought "in bad faith," although he expressly disclaimed any intent to accuse counsel for Wigoda of improper conduct. The conclusion was predicated on the court's opinion that the state complaint's request for injunctive relief was "unsupportable" and had "no likelihood of success."
In his injunction order the district judge expressly allowed Wigoda, et al., to pursue that aspect of the state case requesting a declaratory judgment, but the court restrained Wigoda from interfering with the challenge or the selection of an alternative set of delegates and alternates.
It is that order from which Wigoda, et al., have appealed and which we have vacated.
Although a federal court has power to grant an injunction to stay litigation in a state court, Mitchum v. Foster, 407 U.S. 225, 92 S. Ct. 2151, 32 L. Ed. 2d 705 (1972), "principles of equity, comity, and federalism" dictate restraint in the responsible exercise of that power. Id. at 243, 92 S. Ct. at 2162. The underlying policy was described by Mr. Justice Black in Younger v. Harris, as "a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." 401 U.S. 37, 44, 91 S. Ct. 746, 750, 27 L. Ed. 2d 669.
Although those considerations may be less compelling when the state litigation is civil rather than criminal, see Younger v. Harris, 401 U.S. at 55, note 2, 91 S. Ct. 746, 91 S. Ct. 746, 27 L. Ed. 2d 669 (Mr. Justice Stewart concurring), they require special respect for the state judicial process if federal jurisdiction is not invoked until after state litigation is commenced. Cases such as Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515, in which no state litigation had ...