Golden v. Zwickler, No. 370

• Court: United States Supreme Court
• Writing for the Court: BRENNAN
• Citation: 89 S.Ct. 956,394 U.S. 103,22 L.Ed.2d 113
• Docket Number: No. 370
• Decision Date: 04 March 1969
• Parties: Elliott GOLDEN, as District Attorney of the County of Kings, Appellant, v. Sanford ZWICKLER

394 U.S. 103 89 S.Ct. 956 22 L.Ed.2d 113 Elliott GOLDEN, as District Attorney of the County of Kings, Appellant,

v.

Sanford ZWICKLER.

No. 370. Argued Jan. 16, 1969. Decided March 4, 1969.

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Samuel A. Hirshowitz, New York City, for appellant.

Emanuel Redfield, New York City, for appellee.

Mr. Justice BRENNAN delivered the opinion of the Court.

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

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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

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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

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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:

'The attempt of defendant to moot the controversy and thus to abort a declaration of constitutional invalidity by citing the circumstance that the Congressman concerning whom the Zwickler handbill was published has since become a New York State Supreme Court Justice must fail. When this action was initiated the controversy was genuine, substantial and immediate, even though the date of the election to which the literature was pertinent had already passed.

'* * * The fortuitous circumstance that the candidate in relation to whose bid for office the anonymous handbill was circulated had, while vindication inched tediously forward, removed himself from the role of target of the 1964 handbill does not moot the plaintiff's further and far broader right to a general adjudication of unconstitutionality his complaint prays for. We see no reason to question Zwickler's assertion that the challenged statute currently impinges upon his freedom of speech by deterring him from again distributing anonymous handbills. His own interest as well as that of others who would with like anonymity practise free speech in a

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political environment persuade us to the justice of his plea.' 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...