Younger v. Harris Jr. Appellant's Supplemental Brief on Re-Argument
Public Court Documents
October 6, 1969

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Brief Collection, LDF Court Filings. Younger v. Harris Jr. Appellant's Supplemental Brief on Re-Argument, 1969. e00910c8-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b493cbf3-07d1-41c9-a8b3-c9ada12cee1d/younger-v-harris-jr-appellants-supplemental-brief-on-re-argument. Accessed April 22, 2025.
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3n % $itpmn? (Court OF THE Intfrfc i>tatrs October Term, 1969 No. 4 Evelle J. Y ounger, Appellant, vs. J ohn H arris, J r., et al., Appellees. APPELLANT’S SUPPLEMENTAL BRIEF ON REARGUMENT T homas C. Lynch , Attorney General of the State of California, A lbert W. H arris, J r., Assistant Attorney General of the State of California, Clifford K. T hompson, Jr., Deputy Attorney General of the State of California, 6000 State Building, San Francisco, California 94102, Telephone: (415) 557-0204, Attorneys for Appellant. P E R N A U - W A L B H PRINTINC3 D O. , BAN F R A N C I S C O Subject Index Page Summary of argument ................................. 1 Argument ......................................... . ........................................... 3 Dombrowski v. Pfister does not authorize federal inter vention in this ease ......................................................... 3 A. Absence of an actual case or controversy............ 3 B. Abstention is proper absent bad faith enforce ment of a statute challenged as unconstitutionally vague ........................................................................... 5 C. Dombrowski does not authorize federal invalida tion of California’s Syndicalism Act because it is susceptible of a limiting construction readily to be anticipated as a result of the pending prose cution ......................... ............................. . ................. 11 Conclusion ...................................................................................... 14 Table of Authorities Cited Cases Pages Albertson v. Millard, 345 U.S. 242 (1953)............................. 12 American Civil Liberties Union v. Board of Education, 59 Cal.2d 203, 379 P.2d 4 (1963).............................................. 12 Ashwander v. TVA, 297 U.S. 288 (1936)............................. 5 Baggett v. Bullitt, 377 U.S. 360 (1964)................................. 9 Brandenburg v. Ohio, 395 U.S. 444 (1969).............................. 11,12 Brooks v. Briley, 274 F.Supp. 538 (M.D. Tenn. 1967), aff’d mem., 391 U.S. 361 (1968).................................................... 2,10 Cameron v. Johnson, 381 U.S. 741 (1965)............................. 8 Cameron v. Johnson, 390 U.S. 611 (1968)....................2 ,9 ,10 ,14 Carmichael v. Allen, 267 F.Supp. 985 (N.D. Ga. 1966) . . . . 8 Cunningham v. A.J. Aberman, Inc., 252 F.Supp. 602 (W.D. Pa. 1965), aff’d per curiam, 358 F.2d 747 (3d Cir. 1967) ........................ .................................................... . 7 Danskin v. San Diego Unified School Dist., 28 Cal.2d 536, 171 P.2d 885 (1946)...................................................... . .5, 12,13 Dawkins v. Green, 285 F.Supp. 772 (N.D. Fla. 1968)........ 4 1 1 Table oe Authorities Cited Pages Delta Book. Distributors, Inc. v. Cronvich, 304 F.Supp. 662 (E.D. La. 1969)......................................................................... 4 Dombrowski v. Pfister, 380 U.S. 479 (1965)........................passim Buncombe v. State of New York, 267 F.Supp. 103 (S.D. N.Y. 1967) ............ ......... ........................................................ 11 Golden v. Zwieker, 394 U.S. 103 (1969)............................... 2,4,6 Harris v. Younger, 281 F.Supp. 507 (C.D. Cal. 1968 ) . . . . . 5,13 Harrison v. N.A.A.C.P., 360 U.S. 167 (1959)....................... 10 People v. Bpton, 281 N.Y.S.2d 9, 227 N.E.2d 829 (1967), cert, denied, 390 U.S. 29 (1968)......................................... 5,13 People v. Flanagan, 65 Cal.App, 268, 223 Pae, 1014 (1924) 13 People v. Malley, 49 Cal.App. 597, 194 Pae. 48 (1920) . . . . 13 Turner v. Labelle, 251 F.Supp. 443 (D.C. Conn. 1966) . . . . 11 Vogel v. County of Los Angeles, 68 Cal.2d 18 (1967)........... 5 Wells v. Hand, 238 F.Supp, 779 (M.D. Ga. 1965)................. 8 Wells v. Reynolds, 382 U.S, 39 (1965).................................. 2,8 Whitney v. California, 274 U.S. 357 (1927)......................... 12 Winters v. New York, 333 U.S, 507 (1948)............................ 12 Zwieker v. Boll, 270 F.Supp. 131 (W.D. Wis. 1967)............ 11 Zwickler v. Koota, 389 U.S. 241 (1967)................................. 6,8,9 Codes Penal.Code Section 11401(3)..................................................... 3,11 Constitutions United States Constitution, Art. I ll , Sec. 2 ..........................1,2,4 Statutes 28 U.S.C. 2283 ............................................................................. 7,13 42 U.S.C. 1983 (Civil Rights A c t ) ................................... ... 3 Texts 69 ColL.Rev. 808, 812, n. 32 (1969)..................................... 4 69 Col.L.Rev. 808, 816 (1969)..................... .......................... 9 75 Yale L .j; 1007, 1037 (comment) (1966).......................... 7 Jtt tl|c ^upmur (Eourt OF T H E Intteii t̂atea October Term, 1969 No. 4 Evelle J. Y ounger, Appellant, vs. J ohn H arris, J r., et al., Appellees. APPELLANT’S SUPPLEMENTAL BRIEF ON REARQUMENT SUM M ARY OF ARGUMENT Dombrotvski v. Pfister, 380 U.S. 479 (1965), does niot authorize federal intervention in this ease. Appel lees Dan, Hirsich, and Broslawsky, the district court found, stand in no danger of prosecution under the California Criminal Syndicalism Act;. The mere ex istence of an arguably vague and overbroad state statute regulating expression or association does not create an actual ease or controversy within the mean ing of Article III , section 2 of the United States 2 Constitution. Golden v. Zwickler, 394 U.S, 103 (1969). The district court, therefore, exceeded its jurisdiction in reviewing separate and severable sections of the Syndicalism Act not involved in the prosecution of appellee Harris. The district court erred in declining to abstain from declaring unconstitutional that provision of the Syn dicalism Act under which Harris is charged. Absten tion, or nonintervention, must be the rule where, as here, (1) statutory overbreadth results from vague ness, and (2) there is no showing of bad faith en forcement of the challenged statute. By clarifying an allegedly vague enactment, state courts may narrow the law SO' as to eliminate overbreadth, thereby allow ing federal courts to* avoid adjudicating the most delicate constitutional question: the extent of federal limitations on state power. Where state officials do not take advantage of vague language in a. statute so as to expand its scope to include constitutionally pro tected conduct, the statute does not produce the in tolerable “ chilling effect” which demands federal intervention. Bad faith enforcement of the challenged statute is equally relevant to determining the pro priety of federal declaratory and injunctive relief. Dombrowski did not hold otherwise. Wells v. Reyn olds, 382 U.S. 39 (1965) ; Cameron v. Johnson, 390 U.S. 611 (1968) ; Brooks v. Briley, 274 F.Supp. 538 (M.D. Tenn. 1967), aff’d mem,, 391 U.S. 361 (1968). Finally, because the Criminal Syndicalism Act is susceptible of a limiting construction readily to he anticipated as a result of the prosecution pending 3 against Hands, Dombroswki prohibited the district court from declaring it invalid. ARGUMENT DOMBROWSKI V. PF1STER DOES NOT AUTHORIZE FEDERAL INTERVENTION IN THIS CASE. A. Absence of an Actual Case or Controversy. Appellees Harris, Dan, Hirsch, and Broslawsky complained under the Civil Rights Act, 42 U.S.C. § 1983, attacking the California, Criminal Syndicalism Act as unconstitutionally vague and overbroad and seeking an injunction against its enforcement. Harris was under indictment for violating a single provision of the Act, Penal Code section 11401(3). Dan, Hirsch, and Broslawsky were not accused of violating the Act, nor had the State engaged in any overt acts directed toward their conduct. Acknowledging that “ our decision in no way stems from any apprehension of our own that plaintiffs Dan, Hirsch or Broslawsky stand in any danger of prosecution . . . because of the activities that they ascribed to themselves in the com plaint . . .,” the three-judge federal court, acting upon the authority o f Dombrowski v. Pfister, 380 U.S. 479 (1965), nevertheless declared unconstitutional on their face all sections of the Syndicalism Act, Brief for Appellant, 6-8. The decision below, therefore, stands for the prop osition that the mere existence of an arguably vague and overbroad state statute regulating expression or 4 association authorizes a federal court to declare it invalid. Anyone may seek federal equitable relief, as everyone has standing-. Contra, Dawkins v. Green, 285 F.Supp, 772, 775 (NJD. Fla. 1968). The District Court’s opinion has been understood to mean that “ an injunction should issue whenever a statute might possibly infringe on first amendment freedoms de spite the chance that it could possibly be interpreted in one state proceeding with ‘ requisite narrow specifi city.’ ” Note, 69 Col.L.Rev. 808, 812 n.32 (1969). Dombrowski v. Pfister, however, does not. authorize federal courts to strike down arguably vague state statutes simply because they exist. Federal interven tion is appropriate only if the State has engaged in overt acts of enforcement resulting in irreparable in jury, or “ chilling effect.” In Dombrowski all plain tiffs had been indicted and had been otherwise aggrieved by the systematic and abusive enforcement of the challenged state law. The case or controversy requirement of Article III , section 2 of the United States Constitution marks a boundary beyond which the holding of Dombrowski may not be extended. We have previously urged that appellees Dan, Hirsch, and Broslawsky present no justiciable controversy. Therefore, the District Court exceeded its jurisdiction in reviewing separate and severable sections of the Syndicalism Act not involved in the prosecution against Harris. Brief for Appel lant, 26-30. Delta Book Distributors, Inc. v. Cromrich, 304 F.Supp. 662 (E.D. La. 1969). Golden v. Zwickler, 394 U.S. 103 (1969), confirms our view. B. Abstention is Proper Absent Bad Faith Enforcement of a Statute Challenged as Unconstitutionally Vague. Appellee Harris presents an actual controversy. He alleged that the Syndicalism Act was on its face unconstitutionally vague and overbroad. The District Court interpreted Dombrowski as forbidding absten tion. Harris v. Younger, 281 F.Supp. 507, 510-11 (C.D. Cal. 1968). We urge that Harris does not pre sent; a proper case for federal intervention in a state criminal prosecution. Abstention, or nonintervention, must be the rule where (1) statutory overbreadth results from vague ness, and (2) there is no showing of bad faith enforcement of the challenged statute. In such a case abstention permits state courts to invalidate challenged statutes, thereby eliminating a direct federal affront to state sovereignty. See, e.g., Vogel v. County of Los Angeles, 68 Cal.2d 18 (1967). Alternatively, state courts may clarify an allegedly vague enactment, thereby narrowing the law so as to eliminate overbreadth. See, e.g., Danskin v. San Diego Unified School Dist., 28 Cal.2d 536, 171 P.2d 885 (1946) ; People v. Epton, 281 N.Y.S.2d 9, 227 N.E.2d 829 (1967), cert, denied, 390 H.S. 29 (1968). In the latter event, federal courts avoid a most delicate con stitutional question;: the extent; of federal limitations on state power. Cf. Ashwander v. TV A, 297 U.S. 288, 346-48 (1936). Abstention confers other benefits which may be enjoyed without chilling free expression: it avoids long delays in state criminal prosecutions ; it reduces 6 the burden on federal district courts and on this Court,: it encourages state courts to assume full re sponsibility for protecting federally guaranteed rights; it recognizes state courts as the ultimate arbiters o f state law. Dombrowshi decided that a “ chilling effect” upon First Amendment freedoms was an unacceptable price for the benefits of abstention. Mr. Justice Harlan has characterized the “ chilling effect” doctrine as “ amor phous,” “ slippery,” and “ ubiquitous.” Zwickler v. Koota, 389 U.S. 241, 255, 256 n.2 (concurring opin ion) (1967). Certainly, the concept is an amiable fiction deserving of scrutiny. Golden v. Ztvickler, 394 U.S. 103 (1969), decided that the mere existence of an arguably unconstitutional statute regulating con duct in the First Amendment area did not produce an intolerable in terrorem or “ chilling” effect. Nor does the good faith enforcement of such a law unac ceptably inhibit free expression. Indeed, appellees here emphasize that publications appended to our opening brief are dated after Harris’ indictment. Appellees’ Supplemental Brief on Reargument, 17 n.19. The inadequate allegations of Dan, Hirsch, and Broslawsky reflect Harris’ difficulties in discovering other plaintiffs actually inhibited by the Syndicalism Act, or by Harris’ prosecution. An unacceptable restraint on free expression may result where state officials take advantage of vague language in a, statute so as to expand its scope to include constitutionally protected conduct. This oc curred in Dombrowshi; it did not happen here. Such 7 enforcement has the same effect as the enforcement of an overbroad statute. Given systematic and abusive enforcement of a vague statute, abstention may be improper. Absent a showing of bad faith enforce ment, the balance falls in favor of nonintervention, in favor o f permitting state courts to uphold state laws by construing them in a manner consistent with the requirements of the Constitution. W e view the absence of bad faith enforcement as equally relevant on the separate questions of declara tory and injunctive relief. We do not regard a judg ment declaring a state statute unconstitutional to be a substantially lesser interference with a state’s good faith administration of criminal justice than an ini- junction against future enforcement. Nor do we regard a declaratory judgment to be a permissible circumvention of the federal anti-injunction statute, 28 U.S.C. § 2283. Cunningham v. A. J. Abet •man, Inc., 252 F.Supp. 602 (W.D. Pa. 1965), aff’d per curiam, 358 F.2d 747 (3d Cir. 1967). The same criteria should apply in determining the propriety of declaratory judgments and injunctions. “ Statutory vagueness should be eliminated as an independent ground for intervention. The bad faith standard should be broadened to require consideration of the general pattern o f police conduct toward the complaining group.” Com ment, 75 Yale L.J. 1007, 1037 (1966). W e do not ask that Dombrowski be abandoned, only that its limitations, recognized elsewhere, be acknowl edged here. The abstention, or nonintervention, prin 8 ciple we urge is consistent with this Court’s decisions following Donibrowski. Federal intervention was de manded there because of bad faith enforcement of a statute both vague and overbroad. Arrests, seizures of records, and threats of continued prosecutions oc curred despite efforts by the plaintiffs to vindicate their rights in successful state court actions. In Cameron v. Johnson, 381 U.S. 741, 742 (1965), Justices Black, Harlan, and Stewart, dissenting, ex pressed their opinion that federal intervention was justified only when a, vague and overbroad statute was enforced in bad faith. Id. at 748. Plaintiffs in Wells v. Hand, 238 F.Supp. 779 (M.D. G-a. 1965), attacked the constitutionality o f a Georgia statute forbidding the circulation of insurrectionary papers. Bad faith enforcement was alleged but not shown. Id. at 784. The District Court, being of the opinion that the statute was capable of a narrowing construction, refused to declare it unconstitutional on its face or to enjoin its enforcement.1 This Court, per curiam, affirmed the decision of the District Court. Wells v. Reynolds, 382 U.S. 39 (1965). Our case differs from Wells only in that here bad faith en forcement is not alleged much less shown. The impact of Donibrowski was next considered in Zwickler v. Koota, 389 U.S. 241 (1967). Zwiekler at tacked a New York statute exclusively on grounds of overbreadth, asserting that it punished conduct pro tected by the First Amendment, This Court held that 1Th.e same statute later was declared unconstitutional on its face. Carmichael v. Allen, 267 F.Supp. 985 (N.D. Ga. 1966). 9 abstention from a declaratory judgment was inap propriate because the state law was not susceptible of a narrowing construction by state courts. Id. at 249-52, 256-57. This followed the holding of Baggett v. Bullitt, 377 U.S. 360 (1964), wherein the Court declined to abstain from passing on the constitution ality o f a 1931 Washington loyalty oath because : “ W e doubt, in the first place, that a construction of the oath provisions, in light of the vagueness challenge, would avoid or fundamentally alter the constitutional issue raised in this litigation.” Id. at 375-76. Unlike Koota and Baggett, the question o f over- breadth ini our case may be resolved by a narrowing interpretation by California, courts. Indeed, it is our position that such a, limiting construction has been placed upon the Syndicalism Act. Brief for Appel lant, 15-26. Later, in Cameron v. Johnson, 390 U.S. 611 (1968), this Court said “ W e viewed Dombrowski to be a case presenting a situation o f the ‘ impropriety o f [state officials] invoking the statute in bad faith to impose continuing harassment in order to discourage appel lants’ activities, . . ” 390 U.'S. at 619. Some saw in this a step away from Dombrowski: “ It must ble assumed . . . that in Cameron vL Johnson I I the Court retreated from its position in Dombrowski that the mere existence of a law unconstitutional on its face provides a basis for attacking it.” Note, 69 Col.L.Rev. 808, 816 (1969). In fact, Dombrowski did not hold that the mere exist ence o f a statute warranted federal review. 10 On the authority o f Cameron II, the Court then affirmed the decision of the District Court in Brooks v. Briley, 274 F.Supp. 538 (M.D. Term. 1967), aff’d mem., 391 U.S. 361 (1968). Brooks held abstention appropriate where a state statute was attacked as vague and overbroad, absent a showing' of bad faith enforcement. “ While the Dombrowski opinion contains lan guage which may be susceptible of the interpreta tion! that abstention is never appropriate where statutes regulating expression are properly chal lenged for facial vagueness or overbreadth, we do not believe that the Supreme Court has com mitted itself to such a doctrinaire position where, as here, there is no predicate for finding a bad faith invocation or use of criminal laws, or chilling effects or irreparable injury if state criminal proceedings are allowed to continue. This would appear to be indicated by the Su preme Court’s affirmance, after its Dombrowski decision, of Wells v. Hand. . . Brooks v. Briley, 274 F.Supp. at 550. The principle to be distilled from the Court’s deci sions is this: abstention is proper where in a, pending case a state court may, by clarifying a vague statute, eliminate overbreadth; provided that state officials have not exploited the uncertainty of the law by ap- ^ ^ without hope of conviction so as to discour- Y / age the exercise of protected freedoms. Dombrowski did not wholly discard the teaching of Harrison v. N.A.A.C.P., 360 U.S. 167, 176-177 (1959), that fed- eral courts should not adjudicate the constitutionality.Ar (\ v 5" of state statutes fairly open to interpretation until A '• J v -w, •X Y 11 state courts have been afforded a proper opportunity to pass upon them.2 Accord, Turner v, Labette, 251 P.Supp. 443 (D.C. Conn. 1966); Buncombe v. State of New York, 267 P.Supp. 103 (S.D. N.Y. 1967); Zwicker v. Boll, 270 P.Supp. 131 (W.D. Wis. 1967). C. Dombrowski Does Not Authorize Federal Invalidation of California’s Syndicalism Act Because It Is Susceptible of a Limiting Construction Readily to be Anticipated as a Result of the Pending Prosecution. W e have pointed out that in reviewing the Syndi calism Act, the District Court completely ignored sev eral decisions by California appellate courts clarify ing and limiting the terms of the statute. Brief for Appellant, 15-26. Words used by a state supreme coprt in construing a statute are as much a part of the statute as if the Legislature had put them there. 2The entire Syndicalism Act was no more placed before the state courts by Harris than before the federal district court by all of the appellees. The state trial court was never afforded an opportunity to narrow the meaning of the Penal Code section 11401(3) by limiting instructions. Cf. Brandenburg v. Ohio, 395 U.S. 444, 448 (1969). The state appellate courts did not pass upon the- merits of the- con stitutional challenge in denying Harris a writ of prohibition, for the writ is discretionary. Harris complains that the state courts allowed his prosecution to proceed without requiring a showing that his conduct created a clear and present danger that a change in indiistrial ownership or political reform would result, a showing that his conduct consti tuted incitement to imminent lawless action, and a showing of specific intent to accomplish immediate political or economic change. Appellees’ Supplemental Brief on Reargument, 7-15. First, since the Act proscribes advocacy of violent acts for the purpose of achieving political or economic change, the state is obliged to show that a defendant’s conduct gave rise to a clear and present danger of violent acts, not to a likelihood of social change. Second, the clear and present danger test is judicially imposed after the facts surrounding the charged offense have been developed at trial. Similarly, intent to incite others to imminent lawless action and conduct having the effect of incitement are factual matters to be shown at trial. 12 Winters v. New York, 333 U.S. 507, 514 (1948); Albertson v. Millard, 345 U.S. 242, 244 (1953). Nev ertheless, the District Court overlooked Danskin v. San Diego Unified School Dist., 28 Cal.2d 536, 545, 171 P.2d 885, 891 (1946), wherein Justice Traynor wrote that: “ The Criminal Syndicalism Act can . . . be applied only when there is imminent danger that the advocacy of the doctrine it seeks to prohibit will give rise to the evils that the state may prevent.” Danskin thus narrowed the definition of advocacy proscribed under the Act to conform with the require ments of Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). W e adhere to our position that, as construed by our state courts, the Syndicalism Act is consti tutional. As we did not rely upon Whitney v. Cali fornia, 274 U.S. 357 (1927), holding that the statute is constitutional as enacted, the overruling o f Whit ney in Brandenburg does not affect our submission. Appellees argue that the recited language in Dan- skin is dictum. Appellees’ Supplemental Brief on K('argument. 14 n,15. Our disagreement on this point, however, is insignificant for the quoted statement by Justice Traynor surely cannot be authoritative or nonauthoritative according to a lawyer’s esoteric dis tinction between dictum and holding.3 Danskin and other state appellate decisions allay all reasonable sAppellees’ suggestion that the declaration in Danskin is nullified by American Civil Liberties Union v. Board of Education, 59 Cal.2d 203, 379 P.2d 4 (1963), is utterly devoid of merit. Appellees’ Sup plemental Brief on Reargument, 14 n.15. 13 fears that the Act can be applied to constitutionally protected conduct. Assuming, however, that had the District Court considered relevant state court decisions, it could properly have concluded that they failed authorita tively to cure vagueness and overbreadth, it should have found reason in those decisions to abstain from declaring the statute unconstitutional. i, , Kp Dombrowski expressly states that abstention is ^ . proper where “ a readily apparent construction sug- prpY gests itself as a Vehicle for rehabilitating the statutes / ‘ ,u^ in a single prosecution. . . . ” Id. at 491. Danskin People v. Malley, 49 Cal.App. 597, 1194 Pac. 48 ^ ^ (1920), People v. Flanagan, 65 Cal.App, 268, 276, 223 c' ' . \ Phc. 1014, 1017 (1924), and other state decisions supply a rehabilitating construction. California */' " courts, which “ regularly have shown full alertness to accept and be governed by the constitutional inter pretations that are enunciated by the Supreme Court,” should have been permitted to supply that construction in the Harris prosecution. Harris v. Younger, 281 RSupp. at 510. Com,pare People v. Epton, 281 N.Y;S.2d 9, 227 N.E.2d 829 (1967), cert, denied, 390 U.S. 29 (1968). Instead, contrary to the inhibition of 28 U.S.C. § 2283, the prosecution pend ing against Harris was enjoined. 14 CONCLUSION The District Court administered an overdose of the “ strong medicine”4 prescribed by Dombrowski v. Pfister. The decision o f the District Court declaring the Syndicalism Act unconstitutional should be re versed. The injunction against appellant Younger should be dissolved. Dated, February 20, 1970. Thomas C. L ynch, Attorney General of the State of California, A lbert W . H arris, Jr., Assistant Attorney General of the State of California, Clifford K. T hompson, Jr., Deputy Attorney General of the State of California, Attorneys for Appellant. iCam,eron v. Johnson, 390 U.S. 611, 622, 623 (dissenting opinion of Mr. Justice Fortas) (1968).