Sandra Lee Becker, Etc., Richard Guy Steffel v. John R. Thompson, Etc. , 459 F.2d 919 ( 1972 )

DYER, Circuit Judge:

In this appeal we must meet the issue explicitly reserved in Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L. Ed.2d 688, that is, the propriety of granting declaratory relief when no state criminal proceeding is pending at the time the federal suit is begun. Finding no bad faith enforcement or harassment by the state, the district court denied declaratory relief and entered judgment in favor of the defendants, 334 F.Supp. 1386. We affirm.

The facts are undisputed. The action takes place at the North DeKalb Shopping Center. It is a large, modern, retail shopping area located in a partially residential, partially small business area of unincorporated North DeKalb County, Georgia. It contains a large parking lot and a totally covered air conditioned building complex housing more than sixty retail tenants surrounded by a wide exterior sidewalk.

Since its opening in 1965 the Center has enforced its regulations against handbilling because it desired to maintain an attractive place for its customers to shop without interference or irritation. The Boy Scouts and local garden clubs are permitted to use the booths inside the Mall for bake sales and to give information concerning their activities.

On October 8, 1970, plaintiffs Steffel, Becker and others stood on the exterior sidewalk of the Center and distributed hand bills informing passersby of a meeting protesting the war in Indochina. The plaintiffs were soon instructed by a Center private security guard that they could not distribute the hand bills and were ordered to leave. When they refused the DeKalb County Police were called. When the police arrived plaintiffs were informed that, if they did not stop distribution of hand bills, they would be arrested. The plaintiffs left and no arrests were made.

On October 10, 1970, an attorney for the plaintiffs asked the manager of the Center to permit them to distribute anti-war handbills. Permission was refused. Nevertheless, Steffel and Becker returned to the Center and again, in an orderly fashion, distributed handbills from the exterior sidewalk while other members of the group made photographs. Steffel and Becker were again advised by the security guard and the Center’s manager that they could not distribute the handbills and that, if they persisted in doing so, they would be arrested. Ultimately the DeKalb County police arrived and told Becker and Stef-fel to discontinue their activity or they would be arrested. Steffel left to avoid arrest. Becker continued to distribute the handbills and was arrested on a charge of criminal trespass, pursuant to the provisions of Ga.Code § 26-1503.¹ Becker was released on bond. Subsequently a preliminary hearing was held and she was arraigned.²

In the court below Steffel testified that he had not returned to the Center to handbill since the time of Becker’s arrest because he did not “want to be arrested that badly.”

Becker and Steffel filed this civil class action for declaratory and injunc-tive relief against Hudgins, the owner of the Center, Reynolds, his agent, Solicitor Thompson and Police Chief Hand of DeKalb County attacking the constitutionality of the Georgia criminal trespass statute as applied to them and their class in the distribution of hand bills at the Center, relying on Amalgamated Food Employees Union v. Logan Valley Plaza, Inc., 1968, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 and Marsh v. Alabama, 1946, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265.

The district court denied Becker’s prayer for injunctive relief on the basis of Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and for declaratory relief, on the basis of Samuels v. Mackell, supra, because of the pending state criminal prosecution against her. No appeal has been taken by Becker.

The district court also denied both the injunctive and declaratory relief sought by Steffel, against whom no state criminal prosecution was pending.

Steffel’s argument on brief points up the narrow issue presented on appeal as follows:

The District Court was correct in applying this “bad faith/harassment” test to appellant Steffel’s request for injunctive relief against future threatened state court criminal prosecutions. See for example, Younger v. Harris, 401 U.S. at 44-45 [91 S.Ct. 746] where the Court stated that “These principles made clear in the Fenner case [Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927] [great and immediate irreparable loss required to justify enjoining a state prosecution] have been repeatedly followed and reaffirmed in other cases involving threatened prosecutions, (citing cases including Douglas v. City of Jeannette, 319 U.S. 157, [63 S.Ct. 877, 87 L.Ed. 1324] (1943).

The District Court erred, however, in applying this same stringent test to Appellants’ request for declaratory relief. * * * [A] different balance is to be struck concerning questions of federal-state comity where federal declaratory relief is sought and no state prosecution is pending against the plaintiff.

Stated another way, is the propriety of granting a declaratory judgment concerning threatened future criminal prosecution determined by the same test as the propriety of granting injunctive relief, i. e., bad faith harassment? Younger v. Harris, supra. May we transpose to this case, where no state prosecution was pending, what was said about declaratory relief in Samuels v. Mackell, supra, where a state prosecution was pending:

[T]he same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and * * * where an injunction would be impermissible under these principles, declaratory reliel should ordinarily be denied as well.

Id. 401 U.S. at 73, 91 S.Ct. at 768.

In limine we note that it was emphasized in the “Supreme Court’s February sextet” ³ that the resolution of the problems involved when a federal court is asked to give injunctive or declaratory relief from future state criminal prosecution was left to a later day. Thus the court clearly did not determine the propriety of federal declaratory relief against threatened criminal prosecution.

While the question was reserved, Younger made it clear beyond peradventure that irreparable injury must be measured by bad faith harassment⁴ and such test must be applied to a request for injunctive relief against threatened state court criminal prosecution. In fact, as we pointed out, Steffel concedes that this principle was viable even before Younger and was reiterated in it by the Court’s reliance on Fenner v. Boykin, 1926, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927, and Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324. These cases underscore that “the determination of questions of criminal liability under state law by a federal court of equity, are to be supported only on a showing of danger of irreparable injury.” Douglas at 163, 164, 63 S.Ct. at 881.

In Samuels v. Mackell, supra, it was made unequivocally clear that “ordinarily a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the long standing policy limiting injunctions was designed to avoid.” Id. 401 U.S. at 72, 91 S.Ct. at 767. This is so, of course, because the declaratory judgment may serve as the basis for a subsequent injunction and “even if the declaratory judgment is not used as a basis for actually issuing an injunction, the declaratory relief alone has virtually the same practical impact as a formal injunction would.” Id. Again the Court reserved the question concerning threatened as opposed to pending state prosecutions.

If the practical effects of injunctive and declaratory judgment remedies are identical because they result in the disruption of a state’s enforcement of its criminal statutes when a criminal prosecution is pending, and therefore bad faith harassment must be shown before either remedy may issue, and if, as we have seen, the same test of bad faith harassment is prerequisite to injunctive relief in a threatened criminal prosecution, it follows that a like showing must be made for declaratory relief in a threatened prosecution. Although “The holdings of Younger and Samuels are narrow [and] limited to the propriety of declaratory or injunctive relief while state criminal proceedings are pending * * * Justice Black’s discussion of Dombrowski [Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22] has much broader implications, suggesting that even when state proceedings have not yet begun, injunctive relief — as authorized by Dombrowski — or declaratory relief — as authorized by Zwickler v. Koota, [389 U.S. 241, 88 S. Ct. 391, 19 L.Ed.2d 444] a 1967 case relying heavily on Dombrowski — may be conditioned on the same bad faith requirements. * * * In short, the reasoning in Younger would appear to ignore any distinction between pending and threatened proceedings, and make denial of federal relief obligatory in both situations unless bad faith enforcement can be shown.” (footnotes omitted) 85 Harv.L.Rev. 304, November, 1971.

In Wulp v. Corcoran, 1 Cir. 1972, 454 F.2d 826, the Court, in a threatened state criminal prosecution case, held that declaratory relief was available without a showing of bad faith harassment. It reasoned that there were significant differences in the appropriateness of in-junctive and declaratory relief between pending and preprosecution contests. In other words,' Wulp cannot be read in any way but that it construed the Younger sextet to mean that bad faith harassment had to be shown for injunctive or declaratory relief in pending prosecutions, but is not required to be shown for either remedy when the prosecution is threatened but not pending.

In our view this not only effectively overrules Ex parte Young, 1908, 209 U. S. 123, 28 S.Ct. 441, 52 L.Ed. 714; Fen-ner v. Boykin, 1926, 271 U.S. 240, 46 S. Ct. 492, 70 L.Ed. 927; Spielman Motor Sales Co. v. Dodge, 1935, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322; Beal v. Missouri Pa. R. Co., 1941, 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577; Watson v. Buck, 1941, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416; Williams v. Miller, 1942, 317 U.S. 599, 63 S.Ct. 258, 87 L.Ed. 489; and Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 but also revives the misconception concerning the broad sweep of Dombrowski that Younger took pains to point out and disapprove.

It is, of course, self-evident that where state prosecutions were pending Younger and Samuels established a limitation on the use of the Declaratory Judgment Act, 28 U.S.C.A. § 2201, to those cases where bad faith harassment was shown. The same limitation on the use of the Act necessarily applies in pre-prosecution cases. It is here that we part company with Wulp, supra, and Mr. Justice Brennan’s views in Perez v. Le-desma, 401 U.S. 82, 93, et seq., 91 S.Ct. 674, 27 L.Ed.2d 701 (the majority of the Court not having considered this issue).

Younger laid great stress upon Buck, supra, that:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. “No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity Which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid.” Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45, 49 [61 S.Ct. 418, 420, 85 L.Ed. 577].

There is, of course, no suggestion that the principles enunciated in Buck are not still viable.

If “the propriety of declaratory and injunctive relief should be judged by essentially the same standards”, then in preprosecution cases there must be a showing of bad faith harassment for the granting of declaratory as well as in-junctive relief. Cooley v. Endictor, 5 Cir. 1972, 458 F.2d 513.

We conclude that under the circumstances of this case, even though no state prosecution was pending against Steffel, since there was no showing of bad faith harassment, he was not entitled to a declaratory judgment.

The judgment of the district court is Affirmed.

1 . Ga.Code § 26-1503 provides:

Criminal trespass * * *

(b) A person commits criminal trespass when lie knowingly and without authority:

(3) Remains upon the land or premises of another person, or * * * after receiving notice from the owner or rightful occupant to depart.

(c) A person convicted of criminal trespass shall be punished as for a misdemeanor. (Acts 1968, pp. 1249, 1285; 1969, pp. 857, 859.)

2 . At oral argument the Court was informed that Becker’s trial had been indefinitely continued, presumably awaiting the disposition of this appeal.

3 . LeFlore et al. v. Robinson et. al., 5 Cir, 1971, 446 F.2d 715 (Judge Goldberg;’ specially concurring opinion).

4 . “There may, of course, be extraordinary circumstances in which the necessary ir-’ reparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment.” Younger v. Harris, supra, 401 U.S. at 53-54, 91 S.Ct. at 755. We do not find any extraordinary circumstances present here.