Golden v. Zwickler, 370
Citation | 89 S.Ct. 956,394 U.S. 103,22 L.Ed.2d 113 |
Decision Date | 04 March 1969 |
Docket Number | No. 370,370 |
Parties | Elliott GOLDEN, as District Attorney of the County of Kings, Appellant, v. Sanford ZWICKLER |
Court | U.S. Supreme Court |
Samuel A. Hirshowitz, New York City, for appellant.
Emanuel Redfield, New York City, for appellee.
This case was here before as Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). We there held that the three-judge District Court for the Eastern District of New York erred in abstaining from deciding whether Zwickler, appellee in the instant case, was entitled to a declaratory judgment respecting the constitutionality of New York Penal Law, McKinney's Consol. Laws, c. 40, § 781—b, now New York Election Law, McKinney's Consol.Laws, c. 17, § 457, and we remanded to the District Court for a determination of that question. Section 781—b made it a crime to distribute anonymous literature in connection with an election campaign.1 Zwickler had been convicted of violating this provision by distributing anonymous handbills in connection with the 1964 congressional election. That conviction was reversed, on state law grounds, by the New York Supreme Court, Appellate Term. The New York Court of Appeals affirmed in 1965 and filed a memorandum which stated that constitutional questions had not been reached. People v. Zwickler, 16 N.Y.2d 1069, 266 N.Y.S.2d 140, 213 N.E.2d 467. A few months thereafter, on April 22, 1966, Zwickler brought this suit.
The complaint sets forth the facts regarding the prosecution and its termination. A Congressman standing for re-election in 1964 was criticized in the anonymous handbill for opposing two amendments to the 1964 Foreign Aid bill.2 The complaint alleged that the Congressman 'will become a candidate in 1966 for reelection * * * and has been a political figure and public official for many years,' and that Zwickler 'desires and intends to distribute * * * at the place where he had previously done so and at various places in said (Kings) County, the anonymous leaflet herein described * * * and similar anonymous leaflets * * * at any time during the election campaign of 1966 and in subsequent election campaigns or in connection with any election of party officials, nomination for public office and party position that may occur subsequent to said election campaign of 1966.'
It was disclosed on the argument of Zwickler v. Koota in this Court that the Congressman had left the House of Representatives for a place on the Supreme Court of New York. We deemed this development relevant to the question whether the prerequisites for the issuance of a declaratory judgment were present. We noted, however, that, probably because of the decision to abstain, the parties had not addressed themselves to, and the District Court had not adjudicated, that question. 389 U.S., at 244, n. 3, 88 S.Ct., at 393. Therefore, we directed that on the remand 'appellant (Zwickler) must establish the elements governing the issuance of a declaratory judgment.' Id., at 252, n. 15, 88 S.Ct. at 398; see also Id., at 252—253, n. 16, 88 S.Ct., at 398.
The District Court hearing on the remand was limited largely to the oral argument of counsel, and no testimony was taken concerning the existence of the elements governing the issuance of a declaratory judgment. The three-judge court held that the prerequisites of a declaratory judgment had been establis ed by the facts alleged in the complaint, and that the fact that the Congressman who was the original target of the handbills would not again stand for re-election did not affect the question. The court said:
290 F.Supp. 244, 248, 249 (1968).
We noted probable jurisdiction sub nom. Koota v. Zwickler, 393 U.S. 818, 89 S.Ct. 136, 21 L.Ed.2d 91 (1968). We reverse.
The District Court erred in holding that Zwickler was entitled to declaratory relief if the elements essential to that relief existed '(w)hen this action was initiated.' The proper inquiry was whether a 'controversy' requisite to relief under the Declaratory Judgment Act existed at the time of the hearing on the remand.3 We now undertake that inquiry.
'(T)he federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues United Public Workers of American (C.I.O.) v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 564, 91 L.Ed. 754 (1947). Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).
We think that under all the circumstances of the case the fact that it was most unlikely that the Congressman would again be a candidate for Congress precluded a finding that there was 'sufficient immediacy and reality' here. 4 The allegations of the complaint focus upon the then forthcoming 1966 election when, it was alleged, the Congressman would again stand for re-election. The anonymous handbills which the complaint identified as to be distributed in the 1966 and subsequent elections were the 1964 handbill and 'similar anonymous leaflets.' On the record therefore the only supportable conclusion was that Zwickler's sol concern was literature relating to the Congressman and his record.5 Since the New York statute's prohibition of anonymous handbills applies only to handbills directly pertaining to election compaigns, and the prospect was neither real nor immediate of a campaign involving the Congressman, it was wholly conjectural that another occasion might arise when Zwickler might be prosecuted for distributing the handbills referred to in the complaint. His assertion in his brief that the former Congressman can be 'a...
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