Wulp v. Corcoran, No. 71-1214.

Decision Date11 January 1972
Docket NumberNo. 71-1214.
Citation454 F.2d 826
PartiesDavid WULP et al., Plaintiffs-Appellants, v. John H. CORCORAN, City Manager, City of Cambridge, Massachusetts, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — First Circuit


Francis John Stolarz, Cambridge, Mass., with whom Matthew H. Feinberg, Boston, Mass., was on brief, for appellants.

Michael J. Lack, Cambridge, Mass., with whom Philip M. Cronin and Withington, Cross, Park & Groden, Boston, Mass., were on brief, for appellees.

Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

Plaintiffs brought this action in the district court pursuant to 42 U.S.C. § 1983 to challenge the constitutionality of City of Cambridge General Ordinances, Chap. 22, Sec. 2, which requires anyone who wishes to sell newspapers and certain other articles on the streets of Cambridge to first obtain a permit and badge from the board of license commissioners.1 Plaintiffs Wulp, Singer and Ullman sue individually and on behalf of the Socialist Workers Party of Massachusetts; plaintiff O'Kelly sues on his own behalf. Defendants are the appropriate city officials. According to the complaint and affidavits filed in connection with the district court proceedings, plaintiff Wulp asserts that fear of arrest and other forms of harassment by the defendants have kept him from attempting to distribute newspapers, leaflets or magazines in Cambridge. Plaintiffs Singer, Ullman and O'Kelly each allege that he or she has been prevented by unidentified Cambridge police officers on one or more occasions from distributing leaflets or newspapers due to lack of a permit and Singer has also been threatened with arrest under the ordinance.2 Plaintiff O'Kelly further alleges that he attempted to obtain the required permit but that his application was denied because of a prior criminal record.3 All of the plaintiffs have said that they desire to distribute printed material on the streets of Cambridge and would do so if freed from fear of arrest or harassment by the defendants acting under color of the challenged statute. After a hearing, the district court denied plaintiffs' motion for summary judgment and dismissed the complaint, relying chiefly on Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971). Plaintiffs appeal. Appellees do not dispute any facts alleged in the pleadings or affidavits but say simply that we should abstain from reaching a decision on the merits. Were it not for Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L. Ed.2d 669 (1971), and associated cases, see n. 4 infra, both we and the district court would have summarily granted the requested relief on the squarely applicable precedent of Strasser v. Doorley, 432 F.2d 567 (1st Cir. 1970). As it is, we reexamine the propriety of our reaching the merits with perhaps an overabundance of caution.

A. Standing

The traditional test of standing, of course, is whether there is a sufficient nexus between the status of the individual plaintiffs and the deprivations allegedly flowing from the existence of the regulation being challenged. Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The defendants convinced the district court that even conceding plaintiffs' standing in this traditional sense, a proper exercise of the discretion inherent in the federal judiciary's equity jurisdiction required dismissal of plaintiffs' complaint. The defendants' argument, based on their interpretation of the Supreme Court's holding in Boyle v. Landry, supra, is that in the absence of a showing of immediate irreparable injury the City of Cambridge should be permitted to enforce the ordinance in question in the normal manner with the expectation that whatever constitutional rights plaintiffs possess will be fully and adequately vindicated in any eventual prosecution under the ordinance. We agree that Boyle v. Landry is relevant to proper resolution of the issue now before us, but we derive somewhat different lessons from the case than those advanced by defendants and accepted below.

The Supreme Court in Boyle v. Landry reacted against what appeared from the record to have been a search by plaintiffs through state statute books and city ordinances with a view to picking out those which might sometime in the future be used improperly against them. None of the plaintiffs had ever been threatened with arrest or actually arrested, charged or prosecuted under the particular intimidation statute held by the three-judge court to contain a constitutionally impermissible provision. These circumstances, the Court concluded, amounting to little more than "speculation about the future", did not provide a sufficiently compelling predicate to federal intrusion into the state criminal process. 401 U.S. at 81, 91 S.Ct. 758.

Although at several points in the Court's opinion in Boyle v. Landry Justice Black emphasized the absence of an "irreparable injury" to the constitutional rights of plaintiffs, the dispositive aspects of the decision related to plaintiffs' lack of standing or, perhaps more precisely, to the absence of the requisite "case or controversy". The "irreparability of injury" language in the opinion was used to highlight that failing. In Younger v. Harris, supra, to which Justice Black explicitly referred in Boyle v. Landry for a fuller explanation of the basis of the latter decision, the Court reaffirmed the importance of resolving only "concrete disputes brought before the courts for decision. . . ." 401 U.S. at 52, 91 S.Ct. at 754. Applying this requirement to the plaintiffs in Younger led the Court to decide that three of the plaintiffs there had not alleged facts sufficient to confer standing. The Court noted that feelings of "inhibition", without any claim of a threat of prosecution, or that a prosecution was likely or even remotely possible, are entirely too "imaginary or speculative" to establish standing. 401 U.S. at 42, 91 S.Ct. 746. Since the plaintiffs in Boyle v. Landry were nearly indistinguishable from those who had been found to lack standing in Younger v. Harris, identical disposition of the two cases was clearly appropriate.

The present case is readily distinguishable. At least three of the plaintiffs here, Singer, Ullman and O'Kelly, have been prevented by defendants or their agents from distributing printed materials on the streets of Cambridge because they did not have a permit; defendants have denied plaintiff O'Kelly a permit; and Singer has been threatened with arrest under the ordinance if she continues to distribute material without a permit. Although none of the plaintiffs has been actually arrested or prosecuted under the challenged ordinance, that fact is not dispositive. See, e. g., Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). We know of no principle of federal constitutional law which requires persons in the position of plaintiffs to actually violate a statute or ordinance, with the risks that such a course necessarily entails, before being allowed to assert fundamental constitutional rights. See, e. g., Perez v. Ledesma, 401 U.S. 82, 102-103, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (Brennan concurring in part and dissenting in part); Epperson v. Arkansas, supra, 393 U.S. at 101-102, 89 S.Ct. 266; Pierce v. Society of the Sisters, etc., 268 U.S. 510, 535-536, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Anderson v. Vaughn, 327 F.Supp. 101, 103 (D.Conn. 1971) (three-judge court). Cf. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-156, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). In short, we are satisfied that at least some of the plaintiffs here have standing, especially since their challenge involves facial unconstitutionality without the possibility of a limiting construction that would allow the core of the ordinance to be upheld as constitutional. See, e. g., Epperson v. Arkansas, supra; Strasser v. Doorley, supra, 432 F.2d at 568, and cases cited therein.

B. Equity Jurisdiction

This is not an end to the inquiry. The Younger family of cases specifically and repeatedly reserved the question whether the same standards governing abstention would apply in cases in which there is no pending state prosecution.4 While it might be sufficient in the instant case merely to adhere to prior law, still intact, in preference to trying to anticipate future directions, we deem it useful to reexamine the significance of the pendency of a state prosecution as a factor bearing on a federal court's abstention.5

One set of circumstances lending significance to the fact that a federal action has been instituted subsequent to a state prosecution is of a highly demonstrable and pragmatic nature. The undisputed costs of stopping an ongoing state proceeding and reinstituting the action in the federal courts—measured, for example, by duplication of efforts and in time lost—necessarily result in the clear expression of a lack of confidence by federal courts in the capacity or the willingness of state courts to vindicate federal constitutional rights. This gratuitous indictment of state processes and the extra expenses are not involved when an action is pending in neither system and the federal courts merely consent to hear federal constitutional claims in advance of a state hearing on those claims.

A second basis for attributing significance to the fact that a state prosecution is or is not pending when the federal action is filed is less demonstrable but no less important. It is that the possible sources of injury to fundamental constitutional rights are less identifiable and correctable before the state has actually geared up its prosecutorial processes. From the point of view of the applicant for federal relief, the pendency of a criminal prosecution is graphic proof of the priority given the case within the state system. Cf. Younger v. Harris, supra, 401 U.S. at 55 n. 2, 91 S.Ct. 746 ...

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