Fuller v. Scott

• Decision Date: 21 June 1971
• Docket Number: No. C-249-D-69.,C-249-D-69.
• Citation: 328 F. Supp. 842
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Howard FULLER et al., Plaintiffs, v. Robert SCOTT, Governor of the State of North Carolina, et al., Defendants.

328 F. Supp. 842

Howard FULLER et al., Plaintiffs, v. Robert SCOTT, Governor of the State of North Carolina, et al., Defendants.

No. C-249-D-69.

United States District Court, M. D. North Carolina, Durham Division.

Heard May 21, 1971.

Decided June 21, 1971.

W. G. Pearson, II, and C. C. Malone, Jr., of Pearson, Malone, Johnson & DeJarmon, Durham, N. C., for plaintiffs.

Burley B. Mitchell, Jr., and Charles A. Lloyd, Raleigh, N. C., for defendants.

Before CRAVEN, Circuit Judge, and JONES and GORDON, District Judges.

PER CURIAM.

A divided Court (Jones, D. J., dissenting) on February 23, 1971, entered a declaratory judgment and opinion (see Appendix) in this case holding unconstitutional portions of Article 36A, Chapter 14 of the North Carolina General Statutes, entitled Riots and Civil Disorders (the Act). Injunctive relief was not awarded. Following the entry of the judgment and opinion in this case, opinions of the Supreme Court of the United States were distributed in the following cases:¹ Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed. 2d 701 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971).

The defendants, on March 3, 1971, filed a motion, including a brief citing the foregoing decisions, to amend the judgment of February 23, 1971, and for stay of the judgment. The plaintiffs timely filed a response to the defendants' motion and a brief in support of the response. Even though the parties stipulated that the Court might decide the motion on briefs without oral argument, the Court deemed it advisable to have the parties present oral argument. The hearing on the motion was held on May 21, 1971.

It is against the background of Younger v. Harris, supra, and the other cases decided on the same day by the Supreme Court that we must now consider the defendants' motion to amend the judgment of this Court entered February 23, 1971. As stated in Fuller et al. v. Scott et al. (See Appendix), this Court was of the opinion that Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); and Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968), reh. den. 391 U.S. 971, 88 S.Ct. 2029, 20 L.Ed.2d 887, gave full dimension to the concept of federal review of state penal statutes attacked on their face as abridging freedom of speech.

As we interpreted Dombrowski, Zwickler and Cameron, abstention was improper when (1) from the complaint it appeared that the state statute was facially so vague or overbroad that its application unduly hindered rights of free speech and the statute did not reasonably appear susceptible of a limiting state court construction, or (2) the state statute, though constitutional on its face, was alleged to have been applied arbitrarily or in bad faith in such manner as to accomplish the same result.

Upon considering the complaint, stipulations and contentions of the parties in the subject case, we arrived at the conclusion that certain sections of the statutes complained about were unconstitutionally vague and overbroad; that these sections involved first amendment rights; and that the questioned sections, in part, did not reasonably appear susceptible of a limiting state court construction. We refused to abstain or to consider the questions moot. The opinion and judgment more specifically develop the majority and minority views in this respect. Younger and the companion cases decided by the Court on February 23, 1971, as we interpret them, suggest a different result, that is, that abstention was demanded under the facts before us.

A major portion of the Court's opinion in Younger, written by Justice Black, deals with the comity doctrine and he admonishes that it is best to adhere to the concept 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." Justice Black cites Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926), for language restricting the rule expressed in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L. Ed. 714 (1908). He went on to say:

"In Fenner v. Boykin (cite omitted) suit had been brought in the Federal District Court seeking to enjoin state prosecutions under a recently enacted state law that allegedly interfered with the free flow of interestate commerce. The Court, in a unanimous opinion made clear that such a suit, even with respect to state criminal proceedings not yet formally instituted, could be proper only under very special circumstances:

"`Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, and following cases have established the doctrine that when absolutely necessary for the protection of constitutional rights courts of the United States have power to enjoin state officers from instituting criminal actions. But this may not be done except under extraordinary circumstances where the danger of irreparable loss is both great and immediate. Ordinarily, there should be no interference with such officers; primarily, they are charged with the duty of prosecuting offenders against the laws of the State and must decide when and how this is to be done. The accused should first set up and rely on his defense in the state courts, even though this involves a challenge to the validity of some statute, unless it plainly appears that this course would not afford adequate protection.' Id., at 243-244, 46 S.Ct. 493.

"These principles made clear in the Fenner case have been repeatedly followed and reaffirmed in other cases involving threatened prosecutions." (cites omitted) 401 U.S. at 45-46, 91 S.Ct. 751. (Emphasis added.)

The opinion in Younger cites with approval the decision in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), but emphasizes that in Dombrowski there were substantial allegations and offers of proof of threats made without expectation of securing valid convictions, planned arrests and seizures to harrass the plaintiffs, the use at public meetings of photocopies of records illegally seized and threats to use other copies for obtaining grand jury indictments. Taking issue with the District Court's decision in Younger, enjoining further prosecution of Harris, Justice Black wrote:

"The District Court, however, thought that the Dombrowski decision substantially broadened the availability of injunctions against state criminal prosecutions and that under that decision the federal courts may give equitable relief, without regard to any showing of bad faith or harassment, whenever a statute is found `on its face' to be vague or overly broad, in violation of the First Amendment." 401 U.S. at 50, 91 S.Ct. at 753. (Emphasis supplied)

He says that the broad statements in Dombrowski which seem to extend the rule were unnecessary to the decision in that case, and to the extent that the lower court relied upon those statements, it was in error. Thus, it appears that in addition to facial unconstitutionality of a statute, not susceptable of a limiting state court construction, involving fundamental constitutional rights, federal courts must abstain unless there is a showing of bad faith or harrassment. Further, there must be a showing that the enforcement of the statute will result in irreparable harm that is both great and immediate. A "chilling effect" on first amendment rights, referred to in Dombrowski, will not by itself justify intervention.

Our judgment of February 23, 1971, granted only declaratory relief. The complaint did, however, ask for injunctive relief. Samuels v. Mackell, supra, holds that interference with criminal prosecutions by declaratory judgments is subject to the same restrictions curbing federal interference by injunction.

Plaintiffs, Fuller, Greyson, and Behcler, were charged in warrants issued November 26, 1969, with violating §§ 14-288.2, 14-288.4 and 14-288.5 of the Act in controversy. No warrant was issued for plaintiff Dobbins or Lee. Officials of the University of North Carolina, by complaint filed November 26, 1969, sought and secured injunctive relief in state court against all the plaintiffs in this suit and others. The injunctive relief in general prohibited the defendants therein named from disrupting the operation of the University. At the February 23, 1971, Term of the Superior Court of Orange County, a voluntary dismissal of the state court action awarding the injunctive relief was entered, and subsequently the criminal proceedings were resolved in favor of Fuller, Greyson, and Behcler.²

Neither by the evidence nor in argument of counsel is there any showing of a bad faith use of the Act or that it has been used in a threatening or harassing manner against these plaintiffs or anyone else. Indeed, a voluntary dismissal was taken in the state court suit for injunctive relief, which relief had been granted pursuant to § 14-288.1 of the Act. There is no evidence that any of the plaintiffs have been arrested or threatened since the charges on November 26, 1969, or for that matter prior to on or about November 26, 1969, when they were charged with violating the Act. If the plaintiffs had alleged that they had been prosecuted in bad faith under the Act or that through the provisions of the Act they had been subjected to harassment, and the Court could so find these allegations true, then there would be merit to their contentions. We find an insufficient showing in the record that the plaintiffs have suffered or will suffer irreparable harm that is "both great and immediate" if relief by this Court is not granted. Hence, we must vacate the judgment of February 23, 1971, and dismiss the...