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Bad faith prosecution without the hope of getting a valid conviction

Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A. .S. 932, 14 A!.Ann.Ca". 7#4 $U.S.%&nn.,%ar 23, 1908' It would seem to be clear that the attorney general, under his power existing at common law, and by virtue of these various statutes, had a general duty imposed upon him, which includes the right and the power to enforce the statutes of the state, including, of course, the act in question, if it were constitutional . His power by virtue of his office sufficiently connected him with the duty of enforcement to make him a proper party to a suit of the nature of the one now before the United States circuit court. It is further ob ected !and the ob ection really forms part of the contention that the state cannot be sued" that a court of equity has no urisdiction to en oin criminal proceedings, by indictment or otherwise, under the state law. #his, as a general rule, is true. $$%ut there are exceptions. &hen such indictment or proceeding is brought to enforce an alleged unconstitutional statute, which is the sub ect'matter of inquiry in a suit already pending in a (ederal court, the latter court, having first obtained urisdiction over the sub ect'matter, has (1#2 the right, in both civil and criminal cases, to hold and ((455 maintain such urisdiction, to the exclusion of all other courts, until its duty is fully performed. )rout v. Starr, *++ U. S. ,-.',/0',//, /. 1. ed. ,+/',+2, ,+., 0- Sup. 3t. 4ep. -5+. %ut the (ederal court cannot, of course, interfere in a case where the proceedings were already pending in a state court. #aylor v. #aintor, *2 &all. -22'-.6, 0* 1. ed. 0+.'0567 Harkrader v. &adley, *.0 U. S. */+, /- 1. ed. -55, *5 Sup. 3t. 4ep. **5. &here one commences a criminal proceeding who is already party to a suit then pending in a court of equity, if the criminal proceedings are brought to enforce the same right that is in issue before that court, the latter may en oin such criminal proceedings. 8avis 9 (. :fg. 3o. v. 1os ;ngeles, *+5 U. S. 06., /. 1. ed. ..+, 0- Sup. 3t. 4ep. /5+. In 8obbins v. 1os ;ngeles, *5, U. S. 00-'0/*, /5 1. ed. *25'*.., 0, Sup. 3t. 4ep. *+, it is remarked by :r. <ustice 8ay, in delivering the opinion of the court, that =it is well settled that where property rights will be destroyed, unlawful interference by criminal proceedings under a void law or ordinance may be reached and controlled by a decree of a court of equity.> Smyth v. ;mes, *25 U. S. /22, /0 1. ed. +*5, *+ Sup. 3t. 4ep. /*+, distinctly en oined the proceedings by indictment to compel obedience to the rate act. #hese cases show that a court of equity is not always precluded from granting an in unction to stay proceedings in criminal cases, and we have no doubt the principle applies in a case such as the present. 4e Sawyer, *0/ U. S. 066, 0**, -* 1. ed. /60, /62, + Sup. 3t. 4ep. /+0, is not to the contrary. #hat case holds that, in general, a court of equity has no urisdiction of a bill to stay criminal proceedings, but it expressly states an exception, =unless they are instituted by a party to the suit already pending before it, and to try the same right that is in issue there.> ?arious authorities are cited to sustain the exception. #he criminal proceedings here that could be commenced by the state authorities would be under the statutes relating to passenger or freight rates, and their validity is the very question involved in the suit in the United States circuit court. #he right to restrain proceedings by mandamus is based upon the same foundation and governed by the same principles. (1#3 It is proper to add that the right to en oin an individual, even though a state official, from commencing suits under circumstances already stated, does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature, nor does it include power to prevent any investigation or action by a grand ury. #he latter body is part of the machinery of a criminal court, and an in unction against a state court would be a violation of the whole scheme of our government. If an in unction against an individual is disobeyed, and he commences proceedings before a grand ury or in a court, such disobedience is personal only, and the court or ury can proceed without incurring any penalty on that account. #he difference between the power to en oin an individual from doing certain things, and the power to en oin courts from proceeding in their own way to exercise urisdiction, is plain, and no power to do the latter exists because of a

power to do the former. It is further ob ected that there is a plain and adequate remedy at law open to the complainants, and that a court of equity, therefore, has no urisdiction in such case. It has been suggested that the proper way to test the constitutionality of the act is to disobey it, at least once, after which the company might obey the act pending subsequent proceedings to test its validity. %ut in the event of a single violation the prosecutor might not avail himself of the opportunity to make the test, as obedience to the law was thereafter continued, and he might think it unnecessary to start an inquiry. If, however, he should do so while the company was thereafter obeying the law, several years might elapse before there was a final determination of the question, and, if it should be determined that the law was invalid, the property of the company would have been taken during that time without due process of law, and there would be no possibility of its recovery. ;nother obstacle to making the test on the part of the company might be to find an agent or employee who would disobey (1#4 the law, with a possible fine and imprisonment staring him in the face if the act should be held valid. #ake the passenger'rate act, for instance@ ; sale of a single ticket above the price mentioned in that act might sub ect the ticket agent to a charge of felony, and, upon conviction, to a fine of A,,666 and imprisonment for five years. It is true the company might pay the fine, but the imprisonment the agent would have to suffer personally. It would not be wonderful if, under such circumstances, there would not be a crowd of agents offering to disobey the law. #he wonder would be that a single agent should be found ready to take the risk. If, however, one should be found, and the prosecutor should elect to proceed against him, the defense that the act was invalid, because the rates established by it were too low, would require a long and difficult examination ((45# of quite complicated facts upon which the validity of the act depended. Such investigation it would be almost impossible to make before a ury, as such body could not intelligently pass upon the matter. Buestions of the cost of transportation of passengers and freight, the net earnings of the road, the separation of the cost and earnings within the state from those arising beyond its boundaries, all depending upon the testimony of experts and the examination of figures relating to these sub ects, as well, possibly, as the expenses attending the building and proper cost of the road, would necessarily form the chief matter of inquiry, and intelligent answers could only be given after a careful and prolonged examination of the whole evidence, and the making of calculations based thereon. ;ll material evidence having been taken upon these issues, it has been held that it ought to be referred to the most competent and reliable master to make all needed computations, and to find therefrom the necessary facts upon which a udgment might be rendered that might be reviewed by this court. 3hicago, :. 9 St. ). 4. 3o. v. #ompkins, *.2 U. S. *2., // 1. ed. /*., 06 Sup. 3t. 4ep. --2. (rom all these considerations it is plain that this is not a proper suit for investigation by a ury. Suits for penalties, or indictment (1#5 or other criminal proceedings for a violation of the act, would therefore furnish no reasonable or adequate opportunity for the presentation of a defense founded upon the assertion that the rates were too low and therefore the act invalid. &e do not say the company could not interpose this defense in an action to recover penalties or upon the trial of an indictment ! St. 1ouis 9 S. (. 4. 3o. v. Cill, *,2 U. S. 2/5, -5 1. ed. ,2., *, Sup. 3t. 4ep. /+/", but the facility of proving it in either case falls so far below that which would obtain in a court of equity that comparison is scarcely possible. #o await proceedings against the company in a state court, grounded upon a disobedience of the act, and then, if necessary, obtain a review in this court by writ of error to the highest state court, would place the company in peril of large loss and its agents in great risk of fines and imprisonment if it should be finally determined that the act was valid. #his risk the company ought not to be required to take. Dver eleven thousand millions of dollars, it is estimated, are invested in railroad property, owned by many thousands of people, who are scattered over the whole country, from ocean to ocean, and they are entitled to equal protection from the laws and from the courts, with the owners of all other kinds of property,'no more, no less. #he courts having urisdiction, (ederal or state, should, at all times, be opened to them as well as to others, for the purpose of protecting their property and their legal rights.

;ll the ob ections to a remedy at law as being plainly inadequate are obviated by a suit in equity, making all who are directly interested parties to the suit, and en oining the enforcement of the act until the decision of the court upon the legal question. ;n act of the legislature fixing rates, either for passengers or freight, is to be regarded as prima facie valid, and the onus rests upon the company to prove its assertion to the contrary. Under such circumstances it was stated by :r. <ustice :iller, (1## in his concurring opinion in 3hicago, :. 9 St. ). 4. 3o. v. :innesota, *-/ U. S. /*+'/26, -- 1. ed. 5.6'5+0, - Inters. 3om. 4ep. 065, *6 Sup. 3t. 4ep. /20, .60, that the proper, if not the only, mode of udicial relief against the tariff of rates established by the legislature or by its commission is by a bill in chancery, asserting its unreasonable character7 and that until the decree of the court in such equity suit was obtained, it was not competent for each individual having dealings with a carrier, or for the carrier in regard to each individual who demands its services, to raise a contest in the courts over the questions which ought to be settled in this general and conclusive manner. #his remedy by bill in equity is referred to and approved by :r. <ustice Shiras, in delivering the opinion of the court in St. 1ouis 9 S. (. 4. 3o. v. Cill, *,2 U. S. 2/5, 2,5, 222, -5 1. ed. ,2., ,.6, ,.-, *, Sup. 3t. 4ep. /+/, although that question was not then directly before the court. Such remedy is undoubtedly the most convenient, the most comprehensive, and the most orderly way in which the rights of all parties can be properly, fairly, and adequately passed upon. It cannot be to the real interest of anyone to in ure or cripple the resources of the railroad companies of the country, because the prosperity of both the railroads and the country is most intimately connected. #he question of sufficiency of rates is important and controlling7 and, being of a udicial nature, it ought to be settled at the earliest moment by some court, and when a (ederal court first obtains urisdiction it ought, on general principles of urisprudence, to be permitted to finish the inquiry and make a conclusive udgment, to the exclusion of all other courts. #his is all that is claimed, and this, we think, must be admitted. (inally, it is ob ected that the necessary result of upholding this suit in the circuit court will be to draw to the lower (ederal courts a great flood of litigation of this character, where one (ederal udge would ((457 have it in his power to en oin proceedings by state officials to enforce the legislative acts of the state, either by criminal or civil actions. #o this it may be answered, in the first place, that no in unction ought to be granted unless in a case reasonably free from doubt. &e (1#7 think such rule is, and will be, followed by all the udges of the (ederal courts. ;nd, again, it must be remembered that urisdiction of this general character has, in fact, been exercised by (ederal courts from the time of Dsborn v. %ank of United States up to the present7 the only difference in regard to the case of Dsborn and the case in hand being that in this case the in ury complained of is the threatened commencement of suits, civil or criminal, to enforce the act, instead of, as in the Dsborn 3ase, an actual and direct trespass upon or interference with tangible property. ; bill filed to prevent the commencement of suits to enforce an unconstitutional act, under the circumstances already mentioned, is no new invention, as we have already seen. #he difference between an actual and direct interference with tangible property and the en oining of state officers from enforcing an unconstitutional act, is not of a radical nature, and does not extend, in truth, the urisdiction of the courts over the sub ect'matter. $$In the case of the interference with property, the person en oined is assuming to act in his capacity as an official of the state, and ustification for his interference is claimed by reason of his position as a state official . Such official cannot so ustify when acting under an unconstitutional enactment of the legislature . So, where the state official, instead of directly interfering with tangible property, is about to commence suits which have for their ob ect the enforcement of an act which violates the (ederal 3onstitution, to the great and irreparable in ury of the complainants, he is seeking the same ustification from the authority of the state as in other cases. #he sovereignty of the state is, in reality, no more involved in one case than in the other. #he state cannot, in either case, impart to the official immunity from responsibility to the supreme authority of the United States. See 4e ;yers, *0- U. S. ,6., -* 1. ed. 0-6, + Sup. 3t. 4ep. *2/. #his supreme authority, which arises from the specific provisions of the 3onstitution itself, is nowhere more fully illustrated than in the series of decisions under the (ederal habeas (1#8 corpus statute !E .,-, U. S. 4ev. Stat. U. S. 3omp. Stat. *56*, p. ,50", in some of which cases persons in the custody of state officers for alleged crimes against the state have been taken from that custody and discharged by a (ederal court or udge, because the imprisonment

was ad udged to be in violation of the (ederal 3onstitution. #he right to so discharge has not been doubted by this court, and it has never been supposed there was any suit against the state by reason of serving the writ upon one of the officers of the state in whose custody the person was found. In some of the cases the writ has been refused as matter of discretion7 but in others it has been granted, while the power has been fully recogniFed in all. Gx parte 4oyall, **. U. S. 0/*, 05 1. ed. +2+, 2 Sup. 3t. 4ep. .-/7 4e 1oney !#homas v. 1oney" *-/ U. S. -.0, -- 1. ed. 5/5, *6 Sup. 3t. 4ep. ,+/7 4e Heagle !3unningham v. Heagle" *-, U. S. *, -/ 1. ed. ,,, *6 Sup. 3t. 4ep. 2,+7 %aker v. Crice, *25 U. S. 0+/, /0 1. ed. ./+, *+ Sup. 3t. 4ep. -0-7 Dhio v. #homas, *.- U. S. 0.2, /- 1. ed. 255, *5 Sup. 3t. 4ep. /,-7 :innesota v. %rundage, *+6 U. S. /55, ,60, /, 1. ed. 2-5, 2/6, 0* Sup. 3t. 4ep. /,,7 4eid v. <ones, *+. U. S. *,-, /. 1. ed. **2, 0- Sup. 3t. 4ep. +57 United States ex rel. 8rury v. 1ewis, 066 U. S. *, ,6 1. ed. -/-, 02 Sup. 3t. 4ep. 0057 4e 1incoln, 060 U. S. *.+, ,6 1. ed. 5+/, 02 Sup. 3t. 4ep. 260. It is somewhat difficult to appreciate the distinction which, while admitting that the taking of such a person from the custody of the state by virtue of service of the writ on the state officer in whose custody he is found is not a suit against the state, and yet service of a writ on the attorney general, to prevent his enforcing an unconstitutional enactment of a state legislature, is a suit against the state. #here is nothing in the case before us that ought properly to breed hostility to the customary operation of (ederal courts of ustice in cases of this character. #he rule to show cause is discharged and the petition for writs of habeas corpus and certiorari is dismissed. S)a* +. ,arr&"on, 4#7 -.2d 113 $5t) C&r.$La.',.u/ 31, 1972' 8efendant in a pending state criminal prosecution brought action to en oin state prosecutor from further prosecution of the case. #he United States 8istrict 3ourt for the Gastern 8istrict of 1ouisiana, 3hristenberry, <., ordered issuance of permanent in unction, -0+ (.Supp. -56, and the state prosecutor appealed. #he 3ourt of ;ppeals, &isdom, 3ircuit <udge, held that upon showing that the per ury prosecution was brought in bad faith and for purposes of harassment after defendant in that prosecution took the stand and was acquitted in conspiracy prosecution, further prosecution of the per ury action was properly en oined7 and that it was not necessary that irreparable in ury be independently established. ;ffirmed. &est Headnotes 011 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases 3ivil rights statute created exception to statute prohibiting in unction against pending state court prosecutions . 0+ U.S.3.;. E 00+-7 /0 U.S.3.;. E *5+-. 021 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction

*62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases $$Showing of bad faith or harassment in the institution of a state criminal prosecution is equivalent to a showing of great and immediate Iirreparable in uryJ for purposes of comity restraints on issuance of federal in unctions against pending state criminal prosecutions7 $$irreparable in ury need not be independently established. 031 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases #here is a Ifederal rightJ to be free from bad faith state prosecutions. 041 -edera/ Court" 1702 858

*.6% (ederal 3ourts *.6%?III 3ourts of ;ppeals *.6%?III!K" Scope, Standards, and Gxtent *.6%?III!K", Buestions of (act, ?erdicts and (indings *.6%k+,, )articular ;ctions and )roceedings, ?erdicts and (indings *.6%k+,+ k. 3ivil 4ights 3ases. :ost 3ited 3ases !(ormerly *62k/62.-!*-"" In action under civil rights statutes to en oin pending state per ury prosecution, finding that bringing of per ury charge against plaintiff after he took the stand and was acquitted in a conspiracy prosecution in which sole state witness offered to show plaintiffLs presence at conspiratorial meeting was unable to identify him as having been present was in bad faith and for purpose of harassment was not clearly erroneous in light of evidence, inter alia, that at the time the per ury charge was filed there were no new witnesses available against plaintiff. /0 U.S.3.;. EE *5+-, *5+,7 (ed.4ules 3iv.)roc. rule ,0!a", 0+ U.S.3.;. 051 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases &hile showing of a threat of repeated prosecutions is an alternative path to federal in unctive relief against pending state criminal prosecution, $$such showing is not necessary where bad faith or harassment is established. 0#1 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt

*62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases &here state per ury prosecution was instituted in bad faith by state prosecutor and for purposes of harassment after defendant in the state prosecution had taken the stand and been acquitted in a conspiracy prosecution, federal district court properly en oined state prosecutor from further prosecution of the action. (114 &IS8D:, 3ircuit <udge@ In this case the district court found that <im Carrison, 8istrict ;ttorney for the )arish of Drleans, 1ouisiana, in bad faith and for purposes of harassment brought a criminal prosecution for per ury against 3lay Shaw. -0+ (.Supp. -56 !*5.*". #he court found that the prosecution would cause great and irreparable in ury to Shaw and en oined the district attorney and his staff Ifrom further prosecution of the pending criminal actionJ. -0+ (.Supp. at /6/. &e affirm@ the findings were not clearly erroneous7 they meet the Ispecial circumstancesJ requirements of younger v. Harris, *5.*, /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225. M*N #he district court held also that #itle /0 U.S.3. E *5+- was an express exception to the anti'in unction statute, 0+ U.S.3. E 00+-. #he Supreme 3ourt has now confirmed the correctness of this view. :itchum v. (oster, /6. U.S. 00,, 50 S.3t. 0*,*, -0 1.Gd.0d .6,, *5.0. I. #he (acts 3lay Shaw was active in business and civic affairs in Hew Drleans and for twenty years was :anaging 8irector of the International #rade :art, an organiFation for the promotion of business and cultural activities between Hew Drleans and foreign countries. #he prosecution for per ury grew out of the StateLs unsuccessful attempt to convict Shaw of conspiracy to assassinate )resident <ohn (. Kennedy. #he State charged that Shaw, who took the stand in his own defense, per ured himself when he denied having known either 1ee Harvey Dswald or 8avid (errie, the alleged co'conspirators in the assassination plot. #he plaintiff relies, in part, on the fear of multiple prosecutions, that is, the first was for conspiracy to assassinate )resident Kennedy7 the second was for per ury7 a third and fourth may be in store for him. #he district court agreed with the plaintiff. (H* %ased on the facts showing the district attorneyLs relentless harassment of Shaw, the trial udge could fairly infer that Shaw ran the risk of additional prosecutions. &e feel, however, that it is unnecessary to go beyond the bad faith nature of the per ury prosecution to affirm the udgment. In reaching that conclusion we cannot ignore the first prosecution7 that prosecution is an inseparable part of the factual (115 context within which the second prosecution should be considered. #he per ury charge was based on ShawLs testimony in the conspiracy trial. CarrisonLs theory of the assassination and the trial itself were widely publiciFed. &hatever ambitions he may have had as the man who solved the Kennedy assassination crumbled to bits when the ury came in with a verdict of Inot guiltyJ. (H*. #he district court found@ #his court is not dealing with a single good'faith criminal prosecution wherein allegations of unconstitutional procedures are made. #his court is dealing with a case of continuing harassment and multiple prosecutions, with the likelihood that such harassment and prosecution will continue in the future, unless abated by direct federal court intervention. Herein lies the unique nature of this case and the resulting impotency of traditional avenues of relief. If plaintiff is forced to stand trial for per ury, takes the stand and is acquitted, this court has no doubt but that plaintiff will be charged anew on the basis of statements made by him from the witness stand. ; request for relief in this subsequent prosecution would be met with the same arguments put forth by the defendant in the instant proceeding and so on ad infinitum. Surely at some point plaintiffLs precious constitutional rights must be vindicated. -0+ (.Supp. at /6-. Shaw testified@ Driginally when I was charged, as you know, you, as my attorney, counseled me that I need not take the

stand and that no inference would be drawn from the fact that I did not take the stand, but I knew I was not guilty of this charge, so I did take the stand, and then of course I was found not guilty, and then I found myself facing per ury charges arising out of my testimony given at the conspiracy trial. If I had not taken the stand, I would not be charged with per ury today, yet I took the stand in my own defense because I knew I was innocent. Oet I was charged with per ury because of the very truthful testimony that I gave, and I see no reason to believe that if I take the stand in the new proceedings in my own defense and testify again truthfully as I did in the conspiracy trial the 8istrict ;ttorney will not have me reindicted for per ury for this testimony that I will give. Dn Hovember 00, *52-, )resident <ohn (. Kennedy was assassinated. 1ess than forty'eight hours later, <ack 4uby shot and killed the accused assassin, 1ee Harvey Dswald. Dswald had spent the summer of *52- in Hew Drleans. 1earning of this, the district attorney for Drleans )arish conducted an investigation of DswaldLs activities in Hew Drleans. ;s a result of this investigation, 8avid (errie, allegedly an acquaintance of DswaldLs, was arrested and turned over to the (.%.I. for questioning.(H0 (errie died in (ebruary, *52.. (H0. In his book, Heritage of Stone, an exhibit, Carrison states that his office had been informed that Dswald and (errie were Iassociated together in the 3ivil ;ir )atrolJ in Hew Drleans. Hot until Hovember *522 did Carrison resume his investigation of the Kennedy assassination. #he resumption apparently was triggered by the release of the &arren 3ommissionLs report on the assassination. Carrison testified at the hearing below that Ithe (ederal Covernment had not been looking into it Mthe assassinationN honestly, and that it had been a fake investigation . . .J Carrison first interviewed Shaw in connection with the investigation in 8ecember *522. In his testimony in the district court Carrison offered no explanation for the initial interrogation of Shaw. Dn :arch *, *52., Shaw was arrested and charged with conspiracy to assassinate )resident Kennedy. ;t the time of ShawLs arrest, according to <ames 1. ;lcock, CarrisonLs chief prosecuting attorney, the StateLs only witness against Shaw was )erry 4aymond 4usso. Carrison learned about 4usso, and found him in %aton 4ouge, 1ouisiana, as the result of a newspaper article in which 4usso was quoted as having made several statements concerning 8avid (errie. ;fter ;ssistant 8istrict ;ttorney Sciambra interviewed 4usso in %aton 4ouge, Carrison had 4usso brought to Hew Drleans where he was given sodium pentothal, sub ected to hypnosis, and again interrogated. #wo days later, Shaw was arrested. Dn :arch *, *525, a unanimous state court ury, after fifty'five minutes of deliberation, found Shaw not guilty of the charge that he conspired to assassinate )resident Kennedy. #he verdict culminated a forty'day trial. Dn :arch -, *525, the next working day, Carrison signed an information charging Shaw with the crime of per ury. #he information charged that Shaw per ured himself when, in testimony at the conspiracy trial, he denied having known 8avid (errie or 1ee Harvey Dswald. II. #he )roceedings %elow Dn <anuary *+, *5.*, the date of the state court per ury trial, Shaw applied to the United States 8istrict 3ourt for the Gastern 8istrict of 1ouisiana for a temporary restraining order en oining Carrison from prosecuting the per ury charge. Shaw invoked urisdiction under 0+ U.S.3. EE *-/-!-" and *-/-!/" for a cause of action based on /0 U.S.3. EE *5+- and *5+, and Iunder the 3onstitution of the United StatesJ. Shaw alleged that he suffered and will continue to suffer Igrave and irreparable in uryJ as the result of the state per ury prosecution brought in Ibad faith J and Iin furtherance of CarrisonLs scheme of harassment and intimidation of MShawNJ. #he district court refused to issue a temporary restraining order, and Shaw applied to this 3ourt for emergency relief. #his 3ourt ordered the district

court to hold a hearing on ShawLs request for in unctive relief. :eanwhile, the state case was continued until <anuary 06, *5.*. Dn remand, the district(11# court issued a temporary restraining order pending a hearing on the preliminary in unction set for <anuary 0,, *5.*. #he hearing lasted three days. #he district court received fifty'five exhibits and heard eighteen witnesses on behalf of Shaw. Carrison offered no proof. (H(H-. ;s to CarrisonLs failure to offer proof, the district court said@ #he burden of proof is, of course, upon the plaintiff Shaw to prove by a preponderance of the evidence the existence of exceptional and unusual circumstances that would ustify this courtLs intervention. . . . &hen the plaintiffLs evidence constitutes a prima facie case, the burden is on the defendant of going forward with any evidence to rebut the plaintiffLs case. . . . In this case the defendant Carrison offered no proof, apparently relying on the supposed inability of Shaw to sustain his burden and that even if Shaw did, he would not be entitled to any relief by this court. In those instances where the plaintiff proved certain facts by a preponderance of the credible evidence, and the defendant failed to rebut those facts either on cross' examination or by offering contrary evidence, this court has accepted those facts as true. -0+ (.Supp. at -5,. III. #he 4uling %elow Dn :ay 0., *5.*, the district court issued a permanent in unction Irestraining <im Carrison, 8istrict ;ttorney for the )arish of Drleans, his assistants, employees, agents and all persons in active concert and participation with him from further prosecution of the pending criminal action entitled I=State of 1ouisiana v. 3lay 1. Shaw,> Ho. 06+' 026J. -0+ (.Supp. at /6/. In a thoroughly considered opinion the experienced district udge made detailed findings of fact and conclusions of law. 3haracteriFing the facts as Iunique and biFarreJ, the court held@ IM #Nhe per ury charge was brought in bad faith and for purposes of harassment . . . such bad faith constitutes irreparable in ury which is great and immediateJ. -0+ (.Supp. at /66. #hus, the court concluded that the I=special circumstancesL requirements of OoungerJ(H/ were met and that Shaw was entitled to relief. -0+ (.Supp. at -5-. (H/. Oounger v. Harris, /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225 !*5.*"7 Samuels v. :ackell, /6* U.S. 22, 5* S.3t. .2/, 0. 1.Gd.0d 2++ !*5.*"7 %oyle v. 1andry, /6* U.S. .., 5* S.3t. .,+, 0. 1.Gd.0d 252 !*5.*"7 %yrne v. Karalexis, /6* U.S. 0*2, 5* S.3t. ..., 0. 1.Gd.0d .50 !*5.*"7 )ereF v. 1edesma, /6* U.S. +0, 5* S.3t. 2./, 0. 1.Gd.0d .6* !*5.*"7 8yson v. Stein, *5.*, /6* U.S. 066, 5* S.3t. .25, 0. 1.Gd.0d .+*. ;s to CarrisonLs prosecution of Shaw for conspiracy, the district court found bad faith and harassment on the following facts@ $$!*" #he court found a Iserious question concerning the basis for CarrisonLs decisionJ to investigate the assassination of )resident Kennedy. ;pparently, his urisdiction was based on DswaldLs activities in Hew Drleans in the summer of *52-. However, it is strange indeed that, nearly three years after the assassination, Carrison would decide to undertake an investigation of such gravity merely because he disagreed with the findings of the &arren 3ommission and Dswald had spent some time in Hew Drleans. -0+ (.Supp. at -5/. &illiam ;. Curvich, an experienced investigator and Gxecutive 8irector of an established detective agency in Hew Drleans, testified that Carrison solicited his help in conducting the investigation. He worked on this pro ect for about six months. Curvich testified that he resigned because he believed the investigation to be a Ifraudulent, criminal actJ.

!0" #here was no basis for CarrisonLs initial interrogation of Shaw. I<ust how MShawN . . . was first selected to be interviewed by MCarrisonN . . . when he was not a suspect is (117 another unanswered question in this case. MCarrisonN . . . offered no evidence to show any basis or cause for his officeLs interrogation of MShawN . . . concerning such a shocking crimeJ. -0+ (.Supp. at -5/. !-" #he extreme measures the state resorted to in extracting information from )erry 4aymond 4usso and the use of his testimony at the trial were incompatible with the ;merican System of <ustice. 4usso was given sodium pentothal and sub ected to hypnosis to Iobtain a degree of corroborationJ of what 4usso had allegedly related to CarrisonLs assistant about a conspiratorial meeting. Oet the report of CarrisonLs assistant, Sciambra, who interviewed 4usso, made no mention of any conspiratorial meeting involving Shaw. #he district court stated@ It should be borne in mind that the memorandum which MCarrisonLs assistantN . . . wrote on his return from %aton 4ouge did not mention any such meeting . . . MSNubstantial doubts are raised regarding the validity and ob ectivity of the stateLs case when a prosecuting attorney resorts to the use of such extraordinary tactics as were employed by Carrison on 4usso. ; fair inference to be drawn is that these ex parte procedures were used to implant into 4ussoLs mind a story implicating the plaintiff in an alleged conspiracy plot. #his could have been accomplished by post' hypnotic suggestion. #his inference is supported by the fact that Carrison immediately moved to arrest and charge Shaw based solely on 4ussoLs questionable, vague story. Such hasty action on the part of the defendant without submitting the matter, at that time, to the grand ury demonstrates ulterior motives. -0+ (.Supp. at -5,. 4ussoLs testimony at trial was significantly different from the testimony he gave at the preliminary hearing. (or instance, at the preliminary hearing 4usso stated unequivocally that Shaw was present at a conspiratorial meeting7 in the trial 4usso was unable to identify Shaw as having been present at the alleged meeting.(H, In the trial in the district court 4usso invoked his (ifth ;mendment privilege when asked the precise questions he had previously answered in state court proceedings. #he district court concluded@ (H,. 1ieutenant DL8onnell a member of the Hew Drleans )olice 8epartment for nineteen years testified that he attempted to give 4usso a lie detector test . . . . . . It was not successful. However, DL8onnell stated he took the machineLs attachment from 4ussoLs body and continued on with the interview. ;ccording to DL8onnell, 4usso told him that he did not know if Shaw was at 8avid (errieLs apartment the night of the alleged meeting to plot the assassination. 4usso stated that if he were pressed for an answer, he would have to say that Shaw was not present. He further stated to DL8onnell that Ihe was under a great deal of pressure and that he was sorry that he ever got involved in this messJ. DL8onnell testified that he gave Carrison both an oral and written account of his interview with 4usso. #he written report was filed into evidence in this case by the plaintiff. DL8onnell said Carrison became enraged when he made his report and insinuated that DL8onnell had Isold out to the press or $ $ $ to someoneJ. #he defendant Carrison did not make available to the plaintiffLs counsel the report of 1t. DL8onnell. Instead, he withheld it despite the fact that its sub ect matter pertained directly to statements that were pertinent to the credibility of 4usso, the only witness upon whose story Shaw had been arrested. -0+ (.Supp. at -5,'-52. Hormally no inference can be drawn when one invokes a right secured to him by the 3onstitution. However, in the circumstances of this case the court believes that it can and it does draw the narrow inference from 4ussoLs action, that even today, he at least has substantial doubts as to the truthfulness of the testimony he gave in state court. -0+ (.Supp. at -52.

!/" Carrison used funds received from private sources to pursue his investigation of Shaw. ; group known as (118 I#ruth or 3onsequencesJ was formed in (ebruary *52. to solicit and contribute funds to CarrisonLs investigation. I#he evidence is overwhelming that these funds were used in preparation for ShawLs conspiracy trialJ. -0+ (.Supp. at -5.. #he group, all friends of Carrison, made it clear that they expected results. Carrison gave them results in the form of the prosecution of 3lay Shaw'for conspiracy and for per ury. !," #he manner of ShawLs arrest is described by the district court as follows@ Carrison carefully set the stage for ShawLs arrest, which took place at approximately ,@-6 ).:., four and a half hours after Shaw voluntarily appeared in CarrisonLs office. 8uring this time, a representative of 1ife :agaFine photographed Shaw through a two'way mirror unbeknownst to him. #he hallway outside the defendantLs office on the second floor of the Hew Drleans 3riminal 3ourts %uilding had mysteriously become congested with newsmen, photographers, television camera crews, and members of the general public. Shaw was led handcuffed into the hallway, where he was shoved and pushed through the crowd to reach an elevator leading to the basement of the building and then to 3entral 1ockup. ;ll of this appeared on television. Shaw could have been taken down in a private elevator located in CarrisonLs office, but this would not have afforded the publicity Carrison was obviously seeking. ShawLs arrest and the manner in which it was effected was outrageous and inexcusable. #he only conclusion that can be drawn from CarrisonLs actions is that he intentionally used the arrest for his own purposes, with complete disregard for the rights of 3lay Shaw. -0+ (.Supp. at -55. !2" CarrisonLs pretrial conduct showed a Itotal disregard of ShawLs rightsJ. -0+ (.Supp. at -55. He held press conferences and issued press releases during the pretrial period. Carrison even released information to the press that he had refused to give to Shaw. IM#Nhe action of Carrison in releasing information to the press while denying it to Shaw clearly reveals that . . . M CarrisonN was not prosecuting Shaw in good faithJ. -0+ (.Supp. at -55. #he district court also found bad faith and harassment in the events relating to the per ury prosecution. !*" Ho witness who testified at the hearing before the district court, including Carrison, could recall an instance where a defendant who took the stand and was acquitted was later charged with per ury. !0" Ho per ury charges were filed against State witnesses although their testimony at the conspiracy trial contradicted their testimony previously given. !-" #he chief prosecuting attorney at the state conspiracy trial testified that Iat the time the per ury charge was filed there were no witnesses available other than those who were available at the conspiracy trialJ. -0+ (.Supp. at /66. !/" Carrison has a Isignificant financial interest in the continued prosecution of 3lay ShawJ@ CarrisonLs book, Heritage of Stone, concerns his investigation of )resident KennedyLs assassination. 8efendant also has a contract to write three additional books. It is obvious that the sale of defendantLs book may be promoted by the publicity resulting from the continued prosecution of 3lay Shaw. $$It provides a means whereby defendant himself may profit, and also repay the substantial obligations owed to one of his financial backers. #he court finds that this desire for financial gain is among the motives which prompt the continued prosecution of 3lay Shaw. -0+ (.Supp. at /66. #he StateLs case against Shaw for conspiracy to assassinate )resident Kennedy turned on the testimony of )erry (119 4usso. Ho one knew better than Carrison how unreliable 4usso was. If he had ever any faith in 4ussoLs credibility, it must have vanished when he heard 4usso testify. 4usso was equally important in the StateLs case against Shaw for per ury. ;nd any hope of winning that case vanished when 4usso, asserting his (ifth ;mendment privilege, declined to answer any questions when put on the stand in the trial in the district court. In view of the

extreme lengths Carrison went in the first place to IpersuadeJ 4usso to corroborate the alleged conspiracy theory, it is a fair inference that he knew 4usso would be as ineffective in the second trial as he was in the first. :oreover, considering also the extreme lengths to which Carrison went for the purpose of IprovingJ his case, it is a fair inference that he well knew that 4usso would take the (ifth. Hobbs v. #hompson, , 3ir. *5.*, //+ (.0d /,2, /2,. In Younger, the Supreme 3ourt defined the prerequisites'Ispecial circumstancesJ'which must be present before a federal court will issue an in unction against a pending state criminal proceeding. 4eviewing the prior cases, the 3ourt concluded@ $$In all of these case the 3ourt stressed the importance of showing irreparable in ury the traditional prerequisite to obtaining an in unction. In addition, however, the 3ourt also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable in ury is insufficient unless it is Iboth great and immediateJ. /6* U.S. at /2, 5* S.3t. at .,*. M0NM-N In the present case we are asked to clarify the meaning of Iirreparable in uryJ. Shaw argues that a (120 showing of bad faith prosecution or prosecution for the purpose of harassment establishes the requisite irreparable in ury. Carrison, on the other hand, contends that a showing of bad faith or harassment is insufficient7 he argues that irreparable in ury must be independently established. $$&e hold, as the language of Younger makes clear, that a showing of bad faith or harassment is equivalent to a showing of irreparable in ury for purposes of the comity restraints defined in Younger, because there is a federal right to be free from bad faith prosecutions .(H. Irreparable in ury need not be independently established. (H.. Irreparable in ury is not merely inferred7 irreparable in ury for the purposes of Younger is conclusively shown by a showing of bad faith or harassment. In Younger, the 3ourt repeatedly spoke of Igood faithJ and Ibad faithJ prosecution in such a manner as to indicate that a showing of bad faith was sufficient, although not necessary, (H+ to establish irreparable in ury. Buoting from &atson v. %uck, *5/*, -*- U.S. -+., /66, 2* S.3t. 520, +, 1.Gd. */*2, */0-, citing %eal v. :issouri )acific 4ailroad 3orp., *5/*, -*0 U.S. /,, 2* S.3t. /*+, +, 1.Gd. ,.., ,.5, the 3ourt said, I=Ho citiFen or member of the community is immune from prosecution, in good faith, for his alleged criminal actsL.J /6* U.S. at /2, 5* S.3t. at .,*, 0. 1.Gd.0d 225 !emphasis supplied". Similarly, quoting from 8ouglas v. 3ity of <eannette, *5/-, -*5 U.S. *,., *2/, 2- S.3t. +.., +. 1.Gd. *-0/, *--6, the 3ourt stated, I=It does not appear from the record that petitioners have been threatened with any in ury other than that incidental to every criminal proceeding brought lawfully and in good faith . . .J> /6* U.S. at /., 5* S.3t. at .,0 !emphasis supplied". ;lso, in speaking of 8ombrowski v. )fister, *52,, -+6 U.S. /.5, +, S.3t. ***2, */ 1.Gd.0d 00, the 3ourt said that the circumstances presented in that case Ias viewed by the 3ourt sufficiently establish the kind of irreparable in ury, above and beyond that associated with the defense of a single prosecution brought in good faith, that had always been considered sufficient to ustify federal interventionJ. /6* U.S. at /+, 5* S.3t. at .,0 !emphasis supplied". (H+. #here may, of course, be extraordinary circumstances in which the necessary irreparable in ury can be shown even in the absence of the usual prerequisites of bad faith and harassment. (or example, as long ago as the Buck case, supra, M&atson v. %uck, *5/*, -*- U.S. -+., 2* S.3t. 520, +, 1.Gd. */*2N we indicated@ IIt is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.J -*- U.S., at /60, 2* S.3t., at 52.. Dther unusual situations calling for federal intervention might also arise, but there is no point in our attempting now to specify what they might be. /6* U.S. at ,-, 5* S.3t. at .,,. See also Oounger v. Harris, supra, /6* U.S. at ,/, 5* S.3t. ./2 !Stewart <., with whom Harlan, <. oined, concurring".

$$%ad'faith harassment can, of course, take many forms, including arrests and prosecutions under valid statutes where there is no reasonable hope of obtaining conviction, see e. g., 3ameron v. <ohnson, supra, -56 U.S. M2**N at 20*, ++ S.3t. M*--,N at *-/6, 06 1.Gd.0d *+0, and a pattern of discriminatory enforcement designed to inhibit the exercise of federal rights, see, e. g., %ailey v. )atterson, -0- (.0d 06* !3; , *52-"J. )ereF v. 1edesma, supra, /6* U.S. at **+, 5* S.3t. at 25-, 0. 1.Gd.0d .6* !%rennan, <., with whom &hite, <. and :arshall, <. oined, concurring in part and dissenting in part". In 8yson v. Stein, the 3ourt stressed that the existence of such irreparable in ury was a matter to be determined carefully under the facts of each case. /6* U.S. at 06-, 5* S.3t. .25, 0. 1.Gd.0d .+*.

Cameron v. Johnson, 390 U.S. 611, 88 S. Ct. 1335, 20 L. Ed. 2d 182, 1968 U.S. LEXIS 1879 1968!
;ction for udgment declaring :ississippi antipicketing law to be void on its face and for permanent in unction against enforcement of the statute. ; three' udge 8istrict 3ourt, 0// (.Supp. +/2, dismissed the complaint. #he United States Supreme 3ourt, -+* U.S. ./*, +, S.3t. *.,*, */ 1.Gd.0d .*,, vacated the udgment and remanded for reconsideration. #he three' udge 8istrict 3ourt, 020 (.Supp. +.-, then dismissed the complaint with pre udice, and plaintiffs appealed. #he Supreme 3ourt, :r. <ustice %rennan, held that the law was not void for vagueness or over' breadth, and that federal in unction against enforcement was properly denied where it appeared that there was no $$harassment, $$intimidation, or $$oppression of accused, but that they had been arrested and were being prosecuted in good faith for their deliberate violation of statute. ;ffirmed. 011 3&"order/4 Condu5t 129 101

*05 8isorderly 3onduct *05k*6* k. 3onstitutional and Statutory )rovisions. :ost 3ited 3ases !(ormerly *05k*, **6k*-.*!-", **6k*-" 3&"order/4 Condu5t 129 111

*05 8isorderly 3onduct *05k*** k. )arades, 8emonstrations, and )icketing in Ceneral. :ost 3ited 3ases !(ormerly *05k*, **6k*-.*!-", **6k*-" :ississippi antipicketing law prohibiting picketing which obstructs or unreasonably interferes with free ingress or egress to and from public buildings and property is not void for vagueness. 3ode :iss.*5/0, E 0-*+.,. 021 Con"t&tut&ona/ La* 92 1178

50 3onstitutional 1aw 50P (irst ;mendment in Ceneral 50P!%" )articular Issues and ;pplications 50k**.+ k. Covernment )roperty or (acilities. :ost 3ited 3ases !(ormerly 50k5*" Con"t&tut&ona/ La* 92 50 3onstitutional 1aw 2085

50P?III (reedom of Speech, Gxpression, and )ress 50P?III!?" <udicial )roceedings 50P?III!?"* In Ceneral 50k06+, k. In Ceneral. :ost 3ited 3ases !(ormerly 50k56.*!-", 50k56" )rohibition of conduct which obstructs or unreasonably interferes with ingress or egress to or from courthouse does not abridge constitutional liberty since such activity bears no necessary relation to freedom to distribute information or opinion. 3&"order/4 Condu5t 129 101

*05 8isorderly 3onduct *05k*6* k. 3onstitutional and Statutory )rovisions. :ost 3ited 3ases !(ormerly *05k*, **6k*-.*!-", **6k*-" 3&"order/4 Condu5t 129 111

*05 8isorderly 3onduct *05k*** k. )arades, 8emonstrations, and )icketing in Ceneral. :ost 3ited 3ases !(ormerly *05k*, **6k*-.*!-", **6k*-" :ississippi antipicketing law, prohibiting picketing which obstructs or unreasonably interferes with free ingress or egress to or from public buildings or property is not void as overbroad. 3ode :iss.*5/0, E 0-*+.,. 0#1 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases (ederal in unction against enforcement of :ississippi antipicketing law was properly denied where statute was not void on its face and it appeared that there was no harassment, intimidation, or oppression of accused, but that they had been arrested and were being prosecuted in good faith for their deliberate violation of statute. 3ode :iss.*5/0, E 0-*+.,. 081 Court" 10# 508$7' *62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases $$4ecord in proceeding to en oin enforcement of :ississippi antipicketing law did not support contention that prosecutions were bad faith attempts to harass accusedsL exercise of protected expression with no intention of pressing charges or $$obtaining convictions, despite claims that accused had been entrapped by failure to make arrests on other occasions, that the evidence was insufficient to secure convictions, and that parades had been permitted. 3ode :iss.*5/0, E 0-*+.,. 0101 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases :ere possibility of erroneous application of state criminal statute does not amount to irreparable in ury necessary to ustify federal in unction7 issue of guilt or innocence is for state court at criminal trial and state need not prove accused guilty in federal proceeding to escape finding that state had no expectation of securing valid convictions. M/NM,N 8ombrowski recogniFed, -+6 U.S., at /+-'/+,, +, S.3t., at ***5'**06, the continuing validity of the maxim that a federal district court should be slow to act =where its powers are invoked to interfere by in unction with threatened criminal prosecutions in a state court.> 8ouglas v. 3ity of <eannette, -*5 U.S. *,., *20, 2- S.3t. +.., ++6, +. 1.Gd. *-0/7 see Qwickler v. Koota, supra, -+5 U.S., at 0,-, ++ S.3t., at -5+. (ederal interference with a StateLs good'faith administration of its criminal laws =is peculiarly inconsistent with our federal framework> and a showing of =special circumstancesL beyond the in ury incidental to every proceeding brought lawfully and in good faith is requisite to a finding of irreparable in ury sufficient to ustify the extraordinary remedy of an in unction. -+6 U.S., at /+/, +, S.3t., at ***5, **06. &e found such =special circumstancesL in 8ombrowski. #he prosecutions there begun and threatened were not, as here, for violation of a statute narrowly regulating conduct which is intertwined with expression, but for alleged violations of various sections of excessively broad 1ouisiana statutes regulating expression itself'the 1ouisiana Subversive ;ctivities and 3ommunist 3ontrol 1aw and the 3ommunist )ropaganda 3ontrol 1aw. #hese statutes were challenged as overly broad and vague regulations of expression. 8espite state court actions quashing arrest warrants and suppressing evidence purportedly seiFed in enforcing them, 1ouisiana officials continued to threaten prosecutions of 8ombrowski and his co'appellants under them. In that context, we held that a case of =the threat of irreparable in ury required by traditional doctrines of equity> was made (#19 out. -+6 U.S., at /56, +, S.3t., at **0-. &e held further that the sections of the Subversive ;ctivities and 3ommunist 3ontrol 1aw !for alleged violations of which indictments had been obtained while the case was pending in the federal court" were patently unconstitutional on their face, and remanded with direction to frame an appropriate in unction restraining prosecution of the indictments. M2N In short, we viewed 8ombrowski to be a case presenting a situation of the =impropriety of !state officials" invoking the statute in bad faith to impose ((1340 continuing harassment in order to discourage appellantsL activities $ $ $.> -+6 U.S., at /56, +, S.3t., at **0-. In contrast, the 8istrict 3ourt expressly found in this case =that there was no harassment, intimidation, or oppression of these complainants in their efforts to exercise their constitutional rights, but they were arrested and they are being prosecuted in good faith for their deliberate violation of that part of the statute which denounces interference with the orderly use of courthouse facilities by all citiFens alike.> 020 (.Supp., at +.2, see also 0// (.Supp., at +/+'+/5. &e cannot say from our independent examination of the record that the 8istrict 3ourt erred in denying in unctive relief. M.NM+N ;ny chilling effect on the picketing as a form of protest and expression that flows from good'faith enforcement of this valid statute would not, of course, constitute that enforcement an impermissible invasion of protected freedoms. 3ox v. State of 1ouisiana, supra, -.5 U.S. at ,2/, +, S.3t. at /+6. ;ppellantsL case that there are =special circumstancesL establishing irreparable in ury sufficient to ustify federal intervention must therefore come down to the proposition that the statute was enforced against them, not because the :ississippi officials in good faith regarded the picketing as violating the statute, $$but in bad faith as harassing appellantsL exercise of protected expression with no intention of pressing the charges or $$with no expectation of obtaining(#20 convictions, knowing that appellantsL conduct did not violate the statute. &e agree with the 8istrict 3ourt that the record does not establish the bad faith charged. #his is therefore not a case in which >$ $ $ a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford !appellants" any protection which they could not secure by prompt trial and appeal pursued to this 3ourt.L 8ouglas v. 3ity of <eannette, supra, -*5 U.S. at *2/, 2-

S.3t. at ++*. $$&e have not hesitated on direct review to strike down applications of constitutional statutes which we have found to be unconstitutionally applied to suppress protected freedoms. See 3ox v. State of 1ouisiana, supra7 &right v. State of Ceorgia, -.- U.S. 0+/, +- S.3t. *0/6, *6 1.Gd.0d -/57 Gdwards v. State of South 3arolina, supra. M5N ;ppellants argue that the adoption of the statute in the context of the picketing at the courthouse, and its immediate enforcement by the arrests on ;pril *6 and **, provide compelling evidence that the statute was conceived and enforced solely to bring a halt to the picketing. ;ppellants buttress their argument by characteriFing as =indefensible entrapment> the enforcement of the statute on ;pril *6 against picketing conduct which county officials had permitted for almost three months along the =march route> marked out by the officials themselves . #his argument necessarily implies the suggestion that had the statute been law when the picketing started in <anuary it would not have been enforced. #here is no support whatever in the record for that proposition. #he more reasonable inference is that the authorities believed that until enactment of the statute on ;pril + they had no choice but to allow the picketing. In any event, upon the adoption of the law, it became the duty of the authorities in good faith to enforce it, and to prosecute for picketing that violated that law. Similarly, insofar as appellants argue that selective enforcement was shown by the failure to arrest (#21 those who were picketing from ;pril ** to :ay *+ , the short answer is that it is at least as reasonable to infer from the record that the authorities did not regard their conduct in that period as violating the statute. Indeed, the fact that no arrests were made over that five'week period is itself some support for the 8istrict 3ourtLs re ection of appellantsL primary contention that appellees used the statute in bad faith to discourage the pickets ((1341 from picketing to foster increased voter registration of Hegro citiFens. M*6N Hor are we persuaded by the argument that, because the evidence adduced at the hearing of the picketsL conduct throughout the period would not be sufficient, in the view of appellants, to sustain conviction on a criminal trial, it was demonstrated that the State had no expectation of securing valid convictions. 8ombrowski v. )fister, supra, -+6 U.S. at /56, +, S.3t. at **00. #his argument mistakenly supposes that =special circumstancesL ustifying in unctive relief appear if it is not shown that the statute was in fact violated. %ut the question for the 8istrict 3ourt was not the guilt or innocence of the persons charged7 $$the question was whether the statute was enforced against them with no expectation of convictions but only to discourage exercise of protected rights. #he mere possibility of erroneous application of the statute does not amount =to the irreparable in ury necessary to ustify a disruption of orderly state proceedings.> 8ombrowski v. )fister, supra, -+6 U.S. at /+,, +, S.3t. at **06. #he issue of guilt or innocence is for the state court at the criminal trial7 the State was not required to prove appellants guilty in the federal proceeding to escape the finding that the State had no expectation of securing valid convictions.(H** ;ppellants say that the picketing was nonobstructive,(#22 but the State claims quite the contrary, and $$the record is not totally devoid of support for the StateLs claim. (H**. See 0// (.Supp., at +/5@ =!#"his 3ourt indicates nothing as to the guilt or innocence of the plaintiffs $ $ $>7 020 (.Supp., at +.2@ =&e do not sit in this proceeding to determine the guilt or innocence of the plaintiffs $ $ $.> ;ppellants argue that selective enforcement was shown by the evidence that subsequent to the arrests of the pickets parades were held in Hattiesburg during which the streets of the downtown area, including the locale of the courthouse, were cordoned off during daytime business hours and the sidewalks were obstructed by crowds of spectators during the parades. %ut this statute is not aimed at obstructions resulting from parades on the city streets. ;ll that it prohibits is the obstruction of or unreasonable interference with ingress and egress to and from public buildings, including courthouses, and with traffic on the streets or sidewalks ad acent to those buildings. #here was no evidence of conduct of that nature at any other place which would have brought the statute into play, let alone evidence that the authorities allowed such conduct without enforcing the statute. ;ffirmed. Cox +. State o6 La., 379 U.S. 559, 85 S.Ct. 47#, 13 L.Ed.2d 487 $U.S.La., .an 18, 19#5'

8efendant was convicted of violating 1ouisiana statute punishing picketing near a courthouse. #he Hineteenth <udicial 8istrict 3ourt of the )arish of Gast %aton 4ouge entered udgment, and the defendant appealed. #he 1ouisiana Supreme 3ourt, 0/, 1a. -6-, *,+ So.0d *.0, affirmed the udgment, and the defendant appealed. #he United States Supreme 3ourt, :r. <ustice Coldberg, held that where highest police officials of city, in presence of sheriff and mayor, in effect told demonstrators led by defendant that they could meet across street from courthouse, *6* feet from courthouse steps, but could not meet closer to courthouse, due process did not permit conviction of defendant under statute punishing picketing near courthouse. <udgment of 1ouisiana Supreme 3ourt reversed. :r. <ustice %lack, :r. <ustice 3lark, :r. <ustice &hite and :r. <ustice Harlan dissented. 0121 Con"t&tut&ona/ La* 92 4525

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!H" 3riminal 1aw 50PP?II!H"- 1aw Gnforcement 50k/,0* 3onduct of )olice and )rosecutors in Ceneral 50k/,0, k. 4eliance on Dfficial ;ssurance as to 1egality of 3onduct. :ost 3ited 3ases !(ormerly 50k0,." &here highest police officials of city, in presence of sheriff and mayor, in effect told demonstrators led by defendant that they could meet across street from courthouse, *6* feet from courthouse steps, but could not meet closer to courthouse, due process did not permit conviction of defendant under statute punishing picketing near courthouse. 1S;'4.S. */@/6*. 0131 78"tru5t&ng .u"t&5e 282 #

0+0 Dbstructing <ustice 0+0k2 k. Dbstructing or Interfering with <udicial )roceedings. :ost 3ited 3ases &here highest police officials of city, in presence of sheriff and mayor, in effect told demonstrators led by defendant that they could meet across street from courthouse, sheriffLs subsequent order to defendant to leave, because officials erroneously concluded that defendant had threatened a breach of the peace, did not remove prior grant of permission to meet and did not ustify conviction of defendant, who refused to leave, for violating statute punishing picketing near courthouse. 1S;'4.S. */@/6*7 U.S.3.;.3onst. ;mends. *, */. 0141 Con"t&tut&ona/ La* 92 1430

50 3onstitutional 1aw 50PI? 4ight of ;ssembly 50k*/-6 k. In Ceneral. :ost 3ited 3ases !(ormerly 50k56.*!0", 50k56" Con"t&tut&ona/ La* 92 1845

50 3onstitutional 1aw 50P?III (reedom of Speech, Gxpression, and )ress 50P?III!K" )rotests and 8emonstrations in Ceneral 50P?III!K"* In Ceneral

50k*+/, k. In Ceneral. :ost 3ited 3ases !(ormerly 50k56.*!0", 50k56" 3onstitutional command of free speech and assembly is basic and fundamental and encompasses peaceful social protest. U.S.3.;.3onst. ;mends. *, */. :r. <ustice CD18%G4C delivered the opinion of the 3ourt. ;ppellant was convicted of violating a 1ouisiana statute which provides@ =&hoever, with the intent of interfering with, obstructing, or impeding the administration of ustice, or with the intent of influencing any udge, uror, witness, or court officer, in the discharge of his duty pickets or parades in or near a building housing a court of the State of 1ouisiana $ $ $ shall be fined not more than five thousand dollars or imprisoned not more than one year, or both.> 1S;'4ev.Stat. s */@/6* !3um.Supp.*520". #his charge was based upon the same set of facts as the =disturbing the peace> and =obstructing a public passage> charges ((479 involved and set forth in +, S.3t. /,-, ante, and was tried along with those offenses. ;ppellant was convicted on this charge also and was sentenced to the maximum penalty under the statute of one year in ail and a A,,666 fine, which penalty was cumulative with those in Ho. 0/. #hese convictions were affirmed by the 1ouisiana Supreme 3ourt, 0/, 1a. -6-, *,+ So.0d *.0. ;ppellant appealed to this 3ourt contending that the statute was unconstitutional on its face and as applied to him. &e noted probable urisdiction, -.. U.S. 50*, +/ S.3t. *000, *0 1.Gd.0d 0*/. I. &e shall first consider appellantLs contention that this statute must be declared invalid on its face as an un ustified restriction upon freedoms guaranteed by the (irst and (ourteenth ;mendments to the United States 3onstitution.

9r&g)t +. State o6 ,a., 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 $U.S.,a., %a4 20, 19#3' )rosecution for breach of the peace. #he 3ity 3ourt of Savannah entered udgments of conviction and the defendants brought error. #he Supreme 3ourt of Ceorgia, 0*. Ca. /,-, *00 S.G.0d .-., affirmed and certiorari was granted. #he Supreme 3ourt, :r. 3hief <ustice &arren, held that there was no showing that Hegro defendants, ordered to leave municipally owned park and thereafter charged with breach of the peace, had adequate notice that their conduct in peacefully playing basketball at park was prohibited by breach of peace statute. 4eversed. 051 78"tru5t&ng .u"t&5e 282 7

0+0 Dbstructing <ustice 0+0k. k. Dbstructing or Interfering with )erformance of 8uties of :inisterial Dfficers. :ost 3ited 3ases Dne cannot be punished for failing to obey command of police officer if that command is itself violative of 3onstitution. 0#1 Con"t&tut&ona/ La* 92 50 3onstitutional 1aw 50PP?I Gqual )rotection 32#7

50PP?I!%" )articular 3lasses 50PP?I!%"+ 4ace, Hational Drigin, or Gthnicity 50k-020 Covernment )roperty, (acilities, and (unds 50k-02. k. 4ecreation and Gntertainment (acilities. :ost 3ited 3ases !(ormerly 50k0*.!*", 50k0*5" )olice officerLs command, given with intent to enforce racial discrimination in park, that Hegro defendants should leave city owned park violated Gqual )rotection 3lause of the (ourteenth ;mendment. U.S.3.;.3onst. ;mend. */. 071 Con"t&tut&ona/ La* 92 3297

50 3onstitutional 1aw 50PP?I Gqual )rotection 50PP?I!%" )articular 3lasses 50PP?I!%"+ 4ace, Hational Drigin, or Gthnicity 50k-052 3riminal 1aw 50k-05. k. In Ceneral. :ost 3ited 3ases !(ormerly 50k00-, 50k0,6" Hegro defendants could not constitutionally be convicted of violation of breach of the peace statute for refusal to leave municipally owned park where police officersL order to leave was violative of defendantsL rights under the Gqual )rotection 3lause. 3ode Ca., E 02',-6*7 U.S.3.;.3onst. ;mend. */. 081 Cr&!&na/ La* 110 13.1

**6 3riminal 1aw **6I Hature and Glements of 3rime **6k*0 Statutory )rovisions **6k*-.* k. 3ertainty and 8efiniteness. :ost 3ited 3ases !(ormerly **6k*-.*!0.,", **6k*-.*!0", **6k*-" Cenerally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to extent that it fails to give adequate warning of boundary between constitutionally permissible and constitutionally impermissible applications of statute. 091 Con"t&tut&ona/ La* 92 3521

50 3onstitutional 1aw 50PP?I Gqual )rotection 50PP?I!G" )articular Issues and ;pplications 50PP?I!G"/ Covernment )roperty, (acilities, and (unds 50k-,0* k. 3ontrol and Use in Ceneral. :ost 3ited 3ases !(ormerly 50k0*0" )ossibility of disorder by others cannot ustify exclusion of persons from place if they otherwise have constitutional right, founded upon Gqual )rotection 3lause, to be present. U.S.3.;.3onst. ;mend. */. 0101 3&"order/4 Condu5t 129 *05 8isorderly 3onduct 132

*05k*05 3hallenges and 4esistance to ;uthority *05k*-0 k. 8isobedience in Ceneral7 (ailure to 8isperse. :ost 3ited 3ases !(ormerly 20k+ %reach of the )eace" Gvidence was insufficient to show that Hegro defendants, who were asked to leave municipally owned park, were guilty of breach of peace because their peacefully playing there was likely to cause breach of peace by others. U.S.3.;.3onst. ;mend. */7 3ode Ca., E 02',-6*. 0111 3&"order/4 Condu5t 129 132

*05 8isorderly 3onduct *05k*05 3hallenges and 4esistance to ;uthority *05k*-0 k. 8isobedience in Ceneral7 (ailure to 8isperse. :ost 3ited 3ases !(ormerly 20k+ %reach of the )eace" Gvidence was insufficient to show that Hegro defendants, ordered to leave municipally owned park, had been guilty of breach of peace because park rule reserved playground for use of younger people at that time where neither existence nor posting of such rule had been proved. U.S.3.;.3onst. ;mend. */7 3ode Ca., E 02',-6*. 0121 3&"order/4 Condu5t 129 101

*05 8isorderly 3onduct *05k*6* k. 3onstitutional and Statutory )rovisions. :ost 3ited 3ases !(ormerly 20k+ %reach of the )eace" 3&"order/4 Condu5t 129 132

*05 8isorderly 3onduct *05k*05 3hallenges and 4esistance to ;uthority *05k*-0 k. 8isobedience in Ceneral7 (ailure to 8isperse. :ost 3ited 3ases !(ormerly 20k+ %reach of the )eace" 3&"order/4 Condu5t 129 140

*05 8isorderly 3onduct *05k*/6 k. Dther )articular 3onduct. :ost 3ited 3ases !(ormerly 20k+ %reach of the )eace" #here was no showing that Hegro defendants, ordered to leave municipally owned park and thereafter charged with breach of the peace, had adequate notice that their conduct in peacefully playing basketball at park was prohibited by breach of peace statute. U.S.3.;.3onst. ;mend. */7 3ode Ca. E 02',-6*. 0131 Con"t&tut&ona/ La* 92 4505

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!H" 3riminal 1aw 50PP?II!H"0 Hature and Glements of 3rime 50k/,60 3reation and 8efinition of Dffense 50k/,6, k. 3ertainty and 8efiniteness in Ceneral. :ost 3ited 3ases !(ormerly 50k0,+!0", 50k0,+"

3onviction under criminal enactment which does not give adequate notice that conduct charged is prohibited is violative of due process. U.S.3.;.3onst. ;mend. */. :r. 3hief <ustice &;44GH delivered the opinion of the 3ourt. )etitioners, six young Hegroes, were convicted of breach of the peace for peacefully playing basketball in a public park in Savannah, Ceorgia, on the early afternoon of :onday, <anuay 0-, *52*. #he record is devoid of evidence of any activity which a breach of the peace statute might be thought to punish . (inding that there is no adequate state ground to bar review by this 3ourt and that the convictions are violative of due process of law secured by the (ourteenth ;mendment, we hold that the udgments below must be reversed. Dnly four witnesses testified at petitionersL trial@ the two arresting officers, the city recreational superintendent, and a sergeant of police. ;ll were prosecution witnesses. Ho witness contradicted any testimony given by any other witnesses. Dn the day in question the petitioners were playing in a basketball court at 8affin )ark, Savannah, Ceorgia. #he park is owned and operated by the city for recreational purposes, is about ,6 acres in area, and is customarily used only by whites. ; white woman notified the two police officer witnesses of the presence of petitioners in the park. #hey investigated, according to (28# one officer, =because some colored people were playing in the park. I did not ask this white lady how old these people were. ;s soon as I found out these were colored people I immediately went there.> #he officer also conceded that =I have never made previous arrests in 8affin )ark because people played basketball there $ $ $. I arrested these people for playing basketball in 8affin )ark. Dne reason was because they were negroes. I observed the conduct of these people, when they were on the basketball 3ourt and they were doing nothing besides playing basketball, they were ust normally playing basketball, and none of the children from the schools were there at that particular time.> #he other officer admitted that petitioners =were not necessarily creating any disorder, they were ust =shooting at the goal,> thatLs all they were doing, they wasnLt disturbing anything.L )etitioners were neat and well dressed. Hevertheless, the officers ordered the petitioners to leave the park. Dne petitioner asked one of the officers =by what authority> he asked them to leave7 the officer responded that he =didnLt need any orders to come out there $ $ $.> %ut he admitted that =it is !not" unusual for one to inquire =why> they are being arrested.L &hen arrested the petitioners obeyed the police orders and without disturbance entered the cruiser to be transported to police headquarters. Ho crowd assembled. #he recreational superintendentLs testimony was confused and contradictory. In essence he testified that school children had preference in the use of the parkLs playground facilities but that there was no ob ection to use by older persons if children were not there at the time. Ho children were present at this time. #he arrests were made at about 0 p.m. #he schools released their students at 0@-6 and, according to one officer, it would have been at least -6 minutes before any children could have reached the playground. #he officer also stated that he (287 did not know whether the basketball court was reserved for a particular age group and did not know the rules of the 3ity 4ecreational 8epartment. It was conceded at the trial that no signs were posted in the park indicating what areas, if any, were reserved for younger children at particular hours. In oral argument before this 3ourt it was conceded that the regulations of the park were not printed. ((1243 #he accusation charged petitioners with assembling =for the purpose of disturbing the public peace $ $ $.> and not dispersing at the command of the officers. #he ury was charged, with respect to the offense itself, only in terms of the accusation and the statute. (H* Upon conviction five petitioners were sentenced to pay a fine of A*66 or to serve five months in prison. )etitioner &right was sentenced to pay a fine of A*0, or to serve six months in prison. (H*. #he statute, Ca.3ode ;nn., *5,-, s 02',-6*, provides@ =Unlawful assemblies.';ny two or more persons who shall assemble for the purpose of disturbing the public peace or committing any unlawful act, and shall not disperse on being commanded to do so by a udge, ustice, sheriff, constable, coroner, or other peace officer, shall be guilty of a misdemeanor.>

M*NM0N )etitionersL principal contention in this 3ourt is that the breach of the peace statute did not give adequate warning that their conduct violated that enactment in derogation of their rights under the 8ue )rocess 3lause of the (ourteenth ;mendment of the 3onstitution of the United States. #his contention was plainly raised at the trial, both in a demurrer to the accusation and in motions for a new trial, and was pressed on appeal to the Ceorgia Supreme 3ourt. %oth the demurrer and new trial motions raised a number of other issues. #he Ceorgia Supreme 3ourt held that error in the denial of the motions for a new trial could not be considered because it was not properly briefed on the appeal. %ut the court nevertheless (288 seemed to pass upon the claim because it had been raised in the demurrer,(H0 and affirmed the convictions. 0*. Ca. /,-, *00 S.G.0d .-.. 3ertiorari was granted. -.6 U.S. 5-,, +0 S.3t. *,+6, + 1.Gd.0d +62. (H0. #he Ceorgia court refused to consider two of the constitutional claims asserted in the demurrer. %ut these allegations charged only unconstitutional administration of the statute. It is well settled in Ceorgia that the constitutionality of the statute upon which the charge is based may be attacked by demurrer. #he Ceorgia Supreme 3ourt, over 2, years ago, held that =!u"nder the general demurrer !to the accusation" the constitutionality of the law under which the accused was arraigned is brought in question.> Hewman v. State, *6* Ca. ,-/, ,-2, 0+ S.G. *66, !*+5.". #his rule was later qualified to require the defendant to set out the ground of his attack with particularity in the demurrer. See, e.g., Henderson v. Ceorgia, *0- Ca. /2,, /22, ,* S.G. -+,, -+2. In numerous cases it has been assumed that a constitutional ob ection on the ground of vagueness may properly be made by demurrer. #eague v. Keith, 0*/ Ca. +,-, *6+ S.G.0d /+57 Harris v. State, *5* Ca. 0/-, *0 S.G.0d 2/7 3arr v. State, *.2 Ca. ./., *25 S.G. 06*7 8alton v. State, *.2 Ca. 2/,, *25 S.G. *5+7 3arr v. State, *.2 Ca. ,,, *22 S.G. +0., *2. S.G. *6-7 Hughes v. State %oard of :edical Gxaminers, *20 Ca. 0/2, *-/ S.G. /0. See also Henderson v. State, **- Ca. **/+, -5 S.G. //2. In other cases the Ceorgia Supreme 3ourt has held that certain procedures, other than a demurrer, do not constitute the proper method to attack the constitutionality of the statute upon which the charge or claim was based. In each of these cases the Ceorgia court specifically stated that a demurrer would constitute a proper procedural device. Gaves v. State, **- Ca. ./5, .,+, -5 S.G. -*+, -0*7 %oswell v. State, **/ Ca. /6, /*, -5 S.G. +5.7 Hendry v. State, */. Ca. 026, 02,, 5- S.G. /*-, /*,7 Starling v. State, */5 Ca. *.0, 55 S.G. 2*57 Savannah Glec. 3o. v. #homas, *,/ Ca. 0,+, **- S.G. +627 :oore v. State, *5/ Ca. 2.0, 00 S.G.0d ,*67 Stone v. State, 060 Ca. 06-, /0 S.G.0d .0.7 1oomis v. State, 06- Ca. -5/, /6,, /. S.G.0d ,+, 2/7 (lynt v. 8umas, 06, Ca. .60, ,/ S.G.0d /057 3orbin v. State, 0*0 Ca. 0-*, 5* S.G.0d .2/7 4enfroe v. &allace, 0*/ Ca. 2+,, *6. S.G.0d 00,. 4espondent does not argue that an adequate state ground exists insofar as petitionersL claim of vagueness was raised in the demurrer. Since there is some question as to whether the Ceorgia Supreme 3ourt considered petitionersL claim of vagueness (289 to have been properly raised in the demurrer, (H- we prefer to rest our urisdiction upon a firmer foundation. &e hold, ((1244 for the reasons set forth hereinafter, that there was no adequate state ground for the Ceorgia courtLs refusal to consider error in the denial of petitionersL motions for a new trial.

At p.289,
In this case the Ceorgia Supreme 3ourt held that error in the denial of the motions for a new trial could not be considered because =!t"here was no argument, citation of authority, or statement that !the grounds for reversal stated in the new trial motions" $ $ $ were still relied upon.> #he court found =the applicable rule, as laid (290 down in Henderson v. 1ott, *2- Ca. -02 !0", *-2 S.G. /6-, !to be" $ $ $@ =;ssignments of error, not insisted upon by counsel in their briefs or otherwise, will be treated by this court as abandoned. ; mere recital in briefs of the existence of an assignment of error, without argument or citation of authorities in its support, and without a statement that it is insisted upon by counsel, is insufficient to save it from being treated as abandoned .== 0*. Ca., at /,/'/,,, *00 S.G.0d, at ./6. )resumably the court was restating the requirements of s 2'*-6+ of the Ceorgia ;nnotated 3ode of

*5-,. #hat section provides@ =;ll questions raised in the motion for new trial shall be considered by the appellate court except where questions so raised are expressly or impliedly abandoned by counsel either in the brief or upon oral argument. ; general insistence upon all the grounds of the motion shall be held to be sufficient.> M/N #o ascertain the precise holding of the Ceorgia court we must examine the brief which the petitioners submitted in connection with their appeal. It specifically assigned as error the overruling of their motions for a new trial. ;nd in the section of the brief devoted to argument it was stated@ =)laintiffs'in'Grror had assembled for the purpose of playing basketball and were in fact only playing basketball in a municipally owned park, according to the StateLs own evidence. Hevertheless, they were arrested and convicted under the said statute which prohibited assemblies for the purpose of =disturbing the public peace or committing any unlawful act.> &here a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained. :urray &inters v. Hew Oork, --- U.S. ,6. !2+ S.3t. 22,, 50 1.Gd. +/6". $ $ $ )laintiffs'in'Grror((1245 could not possibly have predetermined from the wording of (291 the statute that it would have punished as a misdemeanor an assembly for the purpose of playing basketball.L Dbviously petitioners did in fact argue the point which they press in this 3ourt. #hus the holding of the Ceorgia court must not have been that the petitioners abandoned their argument but rather that the argument could not be considered because it was not explicitly identified in the brief with the motions for a new trial. In short the Ceorgia court would require the petitioners to say something like the following at the end of the paragraph quoted above@ =; fortiori it was error for the trial court to overrule the motions for a new trial.> ;s was said in a similar case coming to us from the Ceorgia courts, this =would be to force resort to an arid ritual of meaningless form.> Staub v. 3ity of %axley, supra, -,, U.S. at -06, .+ S.3t. at 0+*. #he State may not do that here any more than it could in Staub. Here, as in Staub, the state ground is inadequate. Its inadequacy is especially apparent because no prior Ceorgia case which respondent has cited nor which we have found gives notice of the existence of any requirement that an argument in a brief be specifically identified with a motion made in the trial court. =!;" local procedural rule, although it may now appear in retrospect to form part of a consistent pattern of procedures $ $ $, cannot avail the State here, because petitioner!s" could not fairly be deemed to have been apprised of its existence. Hovelty in procedural requirements cannot be permitted to thwart review in this 3ourt $ $ $.> H.;.;.3.). v. ;labama ex rel. )atterson, supra, -,. U.S. at /,., .+ S.3t. at **25. &e proceed to a consideration of the merits of petitionersL constitutional claim. II. M,NM2NM.NM+N #hree possible bases for petitionersL convictions are suggested. (irst, it is said that failure to obey the command of a police officer constitutes a traditional form of breach of the peace. Dbviously, however, one cannot be punished(292 for failing to obey the command of an officer if that command is itself violative of the 3onstitution. #he command of the officers in this case was doubly a violation of petitionersL constitutional rights . It was obviously based, according to the testimony of the arresting officers themselves, upon their intention to enforce racial discrimination in the park. (or this reason the order violated the Gqual )rotection 3lause of the (ourteenth ;mendment. See Hew Drleans 3ity )ark Improvement ;ssLn v. 8etiege, -,+ U.S. ,/, .5 S.3t. 55, - 1.Gd.0d /2, affirming , 3ir., 0,0 (.0d *00. #he command was also violative of petitionersL rights because, as will be seen, the other asserted basis for the order'the possibility of disorder by others'could not ustify exclusion of the petitioners from the park. #hus petitioners could not constitutionally be convicted for refusing to obey the officers . If petitioners were held guilty of violating the Ceorgia statute because they disobeyed the officers , this case falls within the rule that a generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute. 3f. &inters v. Hew Oork, --- U.S. ,6., 2+ S.3t. 22,, 50 1.Gd. +/67 Stromberg v. 3alifornia, 0+- U.S. -,5, ,* S.3t. ,-0, ., 1.Gd. ***.7 see also 3ole v. ;rkansas, --- U.S. *52, 2+ S.3t. ,*/, 50 1.Gd. 2//. M5NM*6N Second, it is argued that petitioners were guilty of a breach of the peace because their activity was likely

to cause a breach of the peace by others. #he only evidence to support this contention is testimony of one of the police officers that =#he purpose of asking them to leave was to keep down trouble, which ((124# looked like to me might start'there were five or six cars driving around the park at the time, white people.> %ut that officer also stated that this =was !not" unusual traffic for that time of day.> ;nd the park was ,6 acres in area. 4espondent (293 contends the petitioners were forewarned that their conduct would be held to violate the statute. See Samuels v. State, *6- Ca.;pp. 22, **+ S.G.0d 0-*. %ut it is sufficient to say again that a generally worded statute, when construed to punish conduct which cannot be constitutionally punished, is unconstitutionally vague. ;nd the possibility of disorder by others cannot ustify exclusion of persons from a place if they otherwise have a constitutional right !founded upon the Gqual )rotection 3lause" to be present. #aylor v. 1ouisiana, -.6 U.S. *,/, +0 S.3t. **++, + 1.Gd.0d -5,7 Carner v. 1ouisiana, -2+ U.S. *,., *./, +0 S.3t. 0/+, 0,., . 1.Gd.0d 06.7 see also %uchanan v. &arley, 0/, U.S. 26, +6'+*, -+ S.3t. *2, 06, 20 1.Gd. */5. M**N #hird, it is said that the petitioners were guilty of a breach of the peace because a park rule reserved the playground for the use of younger people at the time. However, neither the existence nor the posting of any such rule has been proved. 3f. 1ambert v. 3alifornia, -,, U.S. 00,, 00+, .+ S.3t. 0/6, 0/0, 0 1.Gd.0d 00+. #he police officers did not inform them of it because they had no knowledge of any such rule themselves. (urthermore, it is conceded that there was no sign or printed regulation which would give notice of any such rule. M*0NM*-N Under any view of the facts alleged to constitute the violation it cannot be maintained that petitioners had adequate notice that their conduct was prohibited by the breach of the peace statute. It is well established that a conviction under a criminal enactment which does not give adequate notice that the conduct charged is prohibited is violative of due process. 1anFetta v. Hew <ersey, -62 U.S. /,*, ,5 S.3t. 2*+, +- 1.Gd. +++7 3onnally v. Ceneral 3onstruction 3o., 025 U.S. -+,, /2 S.3t. *02, .6 1.Gd. -007 United States v. 1. 3ohen Crocery 3o., 0,, U.S. +*, /* S.3t. 05+, 2, 1.Gd. ,*27 see also United States v. Hational 8airy )roducts 3orp., -.0 U.S. 05, +- S.3t. ,5/, 5 1.Gd.0d ,2*. 4eversed. U.S.Ca. *52-. **-* 3omment Hote.''3onviction of criminal offense without evidence as denial of due process of law, +6 ;.1.4.0d *-20 !*52*" -,023omment Hote.''Impeachment of witness by evidence or inquiry as to arrest, accusation, or prosecution, 06 ;.1.4.0d */0* !*5,*"

Ed*ard" +. Sout) Caro/&na, 372 U.S. 229, 83 S.Ct. #80, 9 L.Ed.2d #97 $U.S.S.C., -e8 25, 19#3' )rosecution of group of Hegroes for breach of the peace. (rom an adverse udgment of the Ceneral Sessions 3ourt of 4ichland 3ounty, South 3arolina, the defendants appealed. #he Supreme 3ourt of South 3arolina, 0-5 S.3. --5, *0- S.G.0d 0/., affirmed, and certiorari was granted. #he United States Supreme 3ourt, :r. <ustice Stewart, held that arrest, conviction and punishment of group of Hegroes for breach of the peace by marching peacefully on sidewalk around State House grounds to publiciFe their dissatisfaction with discriminatory actions against Hegroes infringed their constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances. 4eversed. :r. <ustice 3lark dissented.

021 3&"order/4 Condu5t 129

111

*05 8isorderly 3onduct *05k*** k. )arades, 8emonstrations, and )icketing in Ceneral. :ost 3ited 3ases !(ormerly 20k*!." %reach of the )eace, 50k0./.*!,"" Con"t&tut&ona/ La* 92 1431

50 3onstitutional 1aw 50PI? 4ight of ;ssembly 50k*/-* k. Covernment )roperty. :ost 3ited 3ases !(ormerly 50k0./.*!,"" Con"t&tut&ona/ La* 92 1435

50 3onstitutional 1aw 50P? 4ight to )etition for 4edress of Crievances 50k*/-, k. In Ceneral. :ost 3ited 3ases !(ormerly 50k0./.*!,"" Con"t&tut&ona/ La* 92 1813

50 3onstitutional 1aw 50P?III (reedom of Speech, Gxpression, and )ress 50P?III!H" 1aw Gnforcement7 3riminal 3onduct 50k*+*- k. %reach of the )eace7 Unlawful ;ssembly. :ost 3ited 3ases !(ormerly 50k0./.*!,"" ;rrest, conviction, and punishment of group of Hegroes for breach of the peace by marching peacefully on sidewalk around State House grounds to publiciFe their dissatisfaction with discriminatory actions against Hegroes infringed their constitutionally protected rights of $$free speech, $$free assembly, and $$freedom to petition for redress of their grievances. U.S.3.;.3onst. ;mends. *, */. 031 Con"t&tut&ona/ La* 92 3851

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!;" In Ceneral 50k-+/+ 4elationship to Dther 3onstitutional )rovisions7 Incorporation 50k-+,* k. (irst ;mendment. :ost 3ited 3ases !(ormerly 50k0./.*!*", 50k0./!*", 50k0" #he freedoms given by the (irst ;mendment are protected by the (ourteenth ;mendment from invasion by the states. U.S.3.;.3onst. ;mends. *, */. 041 Con"t&tut&ona/ La* 92 1800

50 3onstitutional 1aw 50P?III (reedom of Speech, Gxpression, and )ress

50P?III!H" 1aw Gnforcement7 3riminal 3onduct 50k*+66 k. In Ceneral. :ost 3ited 3ases !(ormerly 50k0./.*!*"" ; state cannot make criminal the peaceful expression of unpopular views. U.S.3.;.3onst. ;mend. */. 051 Con"t&tut&ona/ La* 92 4034

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!C" )articular Issues and ;pplications 50PP?II!C"* In Ceneral 50k/6-/ k. Speech, )ress, ;ssembly, and )etition. :ost 3ited 3ases !(ormerly 50k0./.*!*"" ; statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit punishment of political discussion is repugnant to guaranty of liberty contained in the (ourteenth ;mendment. U.S.3.;.3onst. ;mend. */. )rosecution of group of Hegroes for breach of the peace. (rom an adverse udgment of the Ceneral Sessions 3ourt of 4ichland 3ounty, South 3arolina, the defendants appealed. #he Supreme 3ourt of South 3arolina, 0-5 S.3. --5, *0- S.G.0d 0/., affirmed, and certiorari was granted. #he United States Supreme 3ourt, :r. <ustice Stewart, held that arrest, conviction and punishment of group of Hegroes for breach of the peace by marching peacefully on sidewalk around State House grounds to publiciFe their dissatisfaction with discriminatory actions against Hegroes infringed their constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances. 4eversed. :r. <ustice 3lark dissented. 021 3&"order/4 Condu5t 129 111

*05 8isorderly 3onduct *05k*** k. )arades, 8emonstrations, and )icketing in Ceneral. :ost 3ited 3ases !(ormerly 20k*!." %reach of the )eace, 50k0./.*!,"" Con"t&tut&ona/ La* 92 1431

50 3onstitutional 1aw 50PI? 4ight of ;ssembly 50k*/-* k. Covernment )roperty. :ost 3ited 3ases !(ormerly 50k0./.*!,"" Con"t&tut&ona/ La* 92 1435

50 3onstitutional 1aw 50P? 4ight to )etition for 4edress of Crievances 50k*/-, k. In Ceneral. :ost 3ited 3ases !(ormerly 50k0./.*!,""

Con"t&tut&ona/ La* 92

1813

50 3onstitutional 1aw 50P?III (reedom of Speech, Gxpression, and )ress 50P?III!H" 1aw Gnforcement7 3riminal 3onduct 50k*+*- k. %reach of the )eace7 Unlawful ;ssembly. :ost 3ited 3ases !(ormerly 50k0./.*!,"" ;rrest, conviction, and punishment of group of Hegroes for breach of the peace by marching peacefully on sidewalk around State House grounds to publiciFe their dissatisfaction with discriminatory actions against Hegroes infringed their constitutionally protected rights of $$free speech, $$free assembly, and $$freedom to petition for redress of their grievances. U.S.3.;.3onst. ;mends. *, */. 031 Con"t&tut&ona/ La* 92 3851

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!;" In Ceneral 50k-+/+ 4elationship to Dther 3onstitutional )rovisions7 Incorporation 50k-+,* k. (irst ;mendment. :ost 3ited 3ases !(ormerly 50k0./.*!*", 50k0./!*", 50k0" #he freedoms given by the (irst ;mendment are protected by the (ourteenth ;mendment from invasion by the states. U.S.3.;.3onst. ;mends. *, */. 041 Con"t&tut&ona/ La* 92 1800

50 3onstitutional 1aw 50P?III (reedom of Speech, Gxpression, and )ress 50P?III!H" 1aw Gnforcement7 3riminal 3onduct 50k*+66 k. In Ceneral. :ost 3ited 3ases !(ormerly 50k0./.*!*"" ; state cannot make criminal the peaceful expression of unpopular views. U.S.3.;.3onst. ;mend. */. 051 Con"t&tut&ona/ La* 92 4034

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!C" )articular Issues and ;pplications 50PP?II!C"* In Ceneral 50k/6-/ k. Speech, )ress, ;ssembly, and )etition. :ost 3ited 3ases !(ormerly 50k0./.*!*"" ; statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit punishment of political discussion is repugnant to guaranty of liberty contained in the (ourteenth ;mendment. U.S.3.;.3onst. ;mend. */. :r. <ustice S#G&;4# delivered the opinion of the 3ourt. #he petitioners, *+. in number, were convicted in a magistrateLs court in 3olumbia, South 3arolina, of the (230 commonlaw crime of breach of the peace. #heir convictions were ultimately affirmed by the South 3arolina

Supreme 3ourt, 0-5 S.3. --5, *0- S.G. id 0/.. &e granted certiorari, -25 U.S. +.6, +0 S.3t. **/*, + 1.Gd.0d 0./, to consider the claim that these convictions cannot be squared with the (ourteenth ;mendment of the United States 3onstitution. #here was no substantial conflict in the trial evidence. (H* 1ate in the morning of :arch 0, *52*, the petitioners, high school and college students of the Hegro race, met at the Qion %aptist 3hurch in 3olumbia . (rom there, at ((#81 about noon, they walked in separate groups of about *, to the South 3arolina State House grounds , an area of two city blocks open to the general public. #heir purpose was =to submit a protest to the citiFens of South 3arolina, along with the 1egislative %odies of South 3arolina, our feelings and our dissatisfaction with the present condition of discriminatory actions against Hegroes, in general, and to let them know that we were dissatisfied and that we would like for the laws which prohibited Hegro privileges in this State to be removed.> (H*. #he petitioners were tried in groups, at four separate trials. It was stipulated that the appeals be treated as one case. ;lready on the State House grounds when the petitioners arrived were -6 or more law enforcement officers, who had advance knowledge that the petitioners were coming.(H0 Gach group of petitioners entered the grounds through a driveway and parking area known in the record as the =horseshoe.> ;s they entered, they were told by the law enforcement officials that =they had a right, as a citiFen, to go through the State House grounds, as any other citiFen has, as long as they were peaceful.> 8uring(231 the next half hour or /, minutes, the petitioners, in the same small groups, walked single file or two abreast in an orderly way (H- through the grounds, each group carrying placards bearing such messages as =I am proud to be a Hegro> and =8own with segregation.>

At p. 233,
In the situation and under the circumstances thus described, the police authorities advised the petitioners that they would be arrested if they did not disperse within *, minutes.(H+ Instead of dispersing, the petitioners engaged in what the 3ity :anager described as =boisterous,> =loud,> and =flamboyant> conduct, which, as his later testimony made clear, consisted of listening to a =religious harangue> by one of their leaders, and loudly singing =#he Star Spangled %anner> and other patriotic and religious songs, while stamping their feet and clapping their hands . ;fter *, minutes had passed, the police arrested the petitioners and marched them off to ail. (H5 (H+. #he 3ity :anager testified@ =B. :r. :cHayr, what action did you takeR =;. I instructed 8ave 3arter to tell each of these groups, to call them up and tell each of the groups and the group leaders that they must disperse, they must disperse in the manner which I have already described, that I would give them fifteen minutes from the time of my conversation with him to have them dispersed and, if they were not dispersed, I would direct my 3hief of )olice to place them under arrest.> (H5. #he 3ity :anager testified@ =B. Oou have already testified, :r. :cHayr, I believe, that you did order these students dispersed within fifteen minutesR =;. Oes. =B. 8id they disperse in accordance with your orderR =;. #hey did not.

=B. &hat then occurredR =;. I then asked 3hief of )olice 3ampbell to direct his men to line up the students and march them or place them under arrest and march them to the 3ity <ail and the 3ounty <ail. =B. #hey were placed under arrestR =;. #hey were placed under arrest.> (234 Upon this evidence the state trial court convicted the petitioners of breach of the peace, and imposed sentences ranging from a A*6 fine or five days in ail, to a A*66 fine or -6 days in ail. In affirming the udgments, the Supreme 3ourt of South 3arolina said that under the law of that State the offense of breach of the ((#83 peace =is not susceptible of exact definition,> but that the =general definition of the offense> is as follows@ =In general terms, a breach of the peace is a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence $ $ $, it includes any violation of any law enacted to preserve peace and good order. It may consist of an act of violence or an act likely to produce violence. It is not necessary that the peace be actually broken to lay the foundation for a prosecution for this offense. If what is done is un ustifiable and unlawful, tending with sufficient directness to break the peace, no more is required. Hor is actual personal violence an essential element in the offense. $ $ $ =%y =peace,> as used in the law in this connection, is meant the tranquility en oyed by citiFens of a municipality or community where good order reigns among its members, which is the natural right of all persons in political society.L 0-5 S.3., at -/-'-//, *0- S.G.0d, at 0/5. M*NM0N #he petitioners contend that there was a complete absence of any evidence of the commission of this offense, and that they were thus denied one of the most basic elements (235 of due process of law. #hompson v. 1ouisville, -20 U.S. *55, +6 S.3t. 20/, / 1.Gd.0d 2,/7 see Carner v. 1ouisiana, -2+ U.S. *,., +0 S.3t. 0/+, . 1.Gd.0d 06.7 #aylor v. 1ouisiana, -.6 U.S. *,/, +0 S.3t. **++, + 1.Gd.0d -5,. &hatever the merits of this contention, we need not pass upon it in the present case. #he state courts have held that the petitionersL conduct constituted breach of the peace under state law, and we may accept their decision as binding upon us to that extent. %ut it nevertheless remains our duty in a case such as this to make an independent examination of the whole record. %lackburn v. ;labama, -2* U.S. *55, 06,, n. ,, +6 S.3t. 0./, 0.5, / 1.Gd.0d 0/07 )ennekamp v. (lorida, -0+ U.S. --*, --,, 22 S.3t. *605, *6-*, 56 1.Gd. *05,7 (iske v. Kansas, 0./ U.S. -+6, -+,'-+2, /. S.3t. 2,,, 2,2'2,., .* 1.Gd. **6+. ;nd it is clear to us that in arresting, convicting, and punishing the petitioners under the circumstances disclosed by this record, South 3arolina infringed the petitionersL constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances. M-N It has long been established that these (irst ;mendment freedoms are protected by the (ourteenth ;mendment from invasion by the States. Citlow v. Hew Oork, 02+ U.S. 2,0, /, S.3t. 20,, 25 1.Gd. **-+7 &hitney v. 3alifornia, 0./ U.S. -,., /. S.3t. 2/*, .* 1.Gd. *65,7 Stromberg v. 3alifornia, 0+- U.S. -,5, ,* S.3t. ,-0, ., 1.Gd. ***.7 8e <onge v. Dregon, 055 U.S. -,-, ,. S.3t. 0,,, +* 1.Gd. 0.+7 3antwell v. 3onnecticut, -*6 U.S. 052, 26 S.3t. 566, +/ 1.Gd. *0*-. #he circumstances in this case reflect an exercise of these basic constitutional rights in their most pristine and classic form. #he petitioners felt aggrieved by laws of South 3arolina which allegedly =prohibited Hegro privileges in this State.> #hey peaceably assembled at the site of the State Covernment (H*6 and there peaceably expressed their grievances =to the citiFens of South 3arolina, along with the 1egislative %odies of South 3arolina.> (23# Hot until they were told by police officials that they must disperse on pain of arrest did they do more. Gven then, they but sang patriotic and religious songs after one of their leaders had delivered a =religious harangue.> ((#84 #here was no violence or threat of violence on their part, or on the part of any member of the crowd watching them. )olice protection was =ample.>

(H*6. It was stipulated at trial =that the State House grounds are occupied by the Gxecutive %ranch of the South 3arolina government, the 1egislative %ranch and the <udicial %ranch, and that, during the period covered in the warrant in this matter, to wit@ :arch the 0nd, the 1egislature of South 3arolina was in session.> #his, therefore, was a far cry from the situation in (einer v. Hew Oork, -/6 U.S. -*,, .* S.3t. -6-, 5, 1.Gd. 05,, where two policemen were faced with a crowd which was =pushing, shoving and milling around,> id., at -*., .* S.3t. at -6,, where at least one member of the crowd =threatened violence if the police did not act,> id., at -*., .* S.3t. at -6,, where =the crowd was pressing closer around petitioner and the officer,> id., at -*+, .* S.3t. at -6,, and where =the speaker passes the bounds of argument or persuasion and undertakes incitement to riot.> Id., at -0*, .* S.3t. at -62. ;nd the record is barren of any evidence of =fighting words.> See 3haplinsky v. Hew Hampshire, -*, U.S. ,2+, 20 S.3t. .22, +2 1.Gd. *6-*. &e do not review in this case criminal convictions resulting from the evenhanded application of a precise and narrowly drawn regulatory statute evincing a legislative udgment that certain specific conduct be limited or proscribed. If, for example, the petitioners had been convicted upon evidence that they had violated a law regulating traffic, or had disobeyed a law reasonably limiting the periods during which the State House grounds were open to the public, this would be a different case. (H** (237 See 3antwell v. 3onnecticut, -*6 U.S. 052, -6.'-6+, 26 S.3t. 566, 56/'56,, +/ 1.Gd. *0*-7 Carner v. 1ouisiana, -2+ U.S. *,., 060, +0 S.3t. 0/+, 0.*, . 1.Gd.0d 06. !concurring opinion". #hese petitioners were convicted of an offense so generaliFed as to be, in the words of the South 3arolina Supreme 3ourt, =not susceptible of exact definition.> ;nd they were convicted upon evidence which showed no more than that the opinions which they were peaceably expressing were sufficiently opposed to the views of the ma ority of the community to attract a crowd and necessitate police protection. (H**. Section *'/*. of the *5,0 3ode of 1aws of South 3arolina !3um.Supp.*526" provides as follows@ =It shall be unlawful for any person@ =!*" Gxcept State officers and employees and persons having lawful business in the buildings, to use any of the driveways, alleys or parking spaces upon any of the property of the State, bounded by ;ssembly, Cervais, %ull and )endleton Streets in 3olumbia upon any regular weekday, Saturdays and holidays excepted, between the hours of +@-6 a.m. and ,@-6 p.m., whenever the buildings are open for business7 or =!0" #o park any vehicle except in the spaces and manner marked and designated by the State %udget and 3ontrol %oard, in cooperation with the Highway 8epartment, or to block or impede traffic through the alleys and driveways.> #he petitioners were not charged with violating this statute, and the record contains no evidence whatever that any police official had this statute in mind when ordering the petitioners to disperse on pain of arrest, or indeed that a charge under this statute could have been sustained by what occurred. M/N #he (ourteenth ;mendment does not permit a State to make criminal the peaceful expression of unpopular views. =!;" function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at pre udices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. #hat is why freedom of speech $ $ $ is $ $ $ protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. $ $ $ #here is no room under our 3onstitution for a more restrictive (238 view. (or the alternative would lead to standardiFation of ideas either by legislatures, courts, or ((#85 dominant political or community groups.> #erminiello v. 3hicago, --. U.S. *, /',, 25

S.3t. +5/, +52, 5- 1.Gd. **-*. ;s in the #erminiello case, the courts of South 3arolina have defined a criminal offense so as to permit conviction of the petitioners if their speech =stirred people to anger, invited public dispute, or brought about a condition of unrest. ; conviction resting on any of those grounds may not stand.> Id., at ,, 25 S.3t., at +52. M,N ;s 3hief <ustice Hughes wrote in Stromberg v. 3alifornia, =#he maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the 4epublic, is a fundamental principle of our constitutional system. ; statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the (ourteenth ;mendment. $ $ $> 0+- U.S. -,5, -25, ,* S.3t. ,-0, ,-2, ., 1.Gd. ***.. (or these reasons we conclude that these criminal convictions cannot stand. 4eversed. Ste66e/ +. :)o!p"on, 415 U.S. 452, 457, 94 S.Ct. 1209, 39 L.Ed.2d 505 $U.S.,a.,%ar 19, 1974'

Declaratory Judge ent is warranted and applica!le when no state prosecution is pending, and a federal plaintiff de onstrates a genuine threat of enforce ent, of a disputed state cri inal statute, whether an attac" is ade on the constitutionality of the statute on its face or as applied, for the deter ination !y a declaratory #udg ent that the statute is unconstitutional as applied.
(475 &e therefore hold that, regardless of whether in unctive relief may be appropriate, federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement ((1224 of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied. (H00 #he udgment of the 3ourt of ;ppeals is reversed, and the case is remanded for further proceedings consistent with this opinion. (H00. Some two years after petitioner attempted to handbill at the shopping center, respondent Hudgens, the owner of the center, commenced an action in the Superior 3ourt of (ulton 3ounty seeking a declaration of his rights concerning the centerLs rules against handbilling and related activities. &e were advised at oral argument that the state action had been dismissed by the trial court but that an appeal is pending before the Ceorgia Supreme 3ourt. Since we do not require petitioner first to seek vindication of his federal rights in a state declaratory udgment action, see 1ake 3arriersL ;ssn. v. :ac:ullan, supra, /62 U.S., at ,*6, 50 S.3t., at *.,.7 &isconsin v. 3onstantineau, /66 U.S. /--, 5* S.3t. ,6., 0. 1.Gd.0d ,*, !*5.*", consideration of abstention by the 8istrict 3ourt would be inappropriate unless the action commenced by respondent Hudgens could be shown to present a substantial and immediate possibility of obviating petitionerLs federal claim by a decision on state law grounds. 3f. ;skew v. Hargrave, /6* U.S. /.2, /.+, 5* S.3t. +,2, +,.S +,+, 0+ 1.Gd.0d *52 !*5.*"7 4eetF v. %oFanich, -5. U.S. +0, 56 S.3t. .++, 0, 1.Gd.0d 2+ !*5.6". It is so ordered. 4eversed and remanded.

2a&/e4 +. ;atter"on, 323 -.2d 201, 7 -ed.R.Ser+.2d 444 $5t) C&r.$%&"".',Sep 24, 19#3'

)roceeding by Hegroes to en oin enforcement of state and municipal segregation laws affecting common carriers, to en oin maintenance of racial segregation, and to en oin municipal authorities from continuing to arrest or coerce plaintiffs in exercise of their federally protected rights. #he United States 8istrict 3ourt for the Southern 8istrict of :ississippi, Sidney 3. :iFe, <., denied in unctive and class relief, and the plaintiffs appealed. #he 3ourt of ;ppeals, Hays, 3ircuit <udge, held that Hegroes were entitled to decree running not only to benefit of Hegro plaintiffs but also for all persons similarly situated, regardless whether action was properly brought as class action under federal rules, but that denial of in unctive relief against state ;ttorney Ceneral was not abuse of discretion. ;ffirmed in part, reversed and remanded in part. 3ameron, 3ircuit <udge, dissented. 011 C&+&/ R&g)t" 78 1331$#'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-0+ )ersons )rotected and Gntitled to Sue .+k*--* )ersons ;ggrieved, and Standing in Ceneral .+k*--*!2" k. Dther )articular 3ases and 3ontexts. :ost 3ited 3ases !(ormerly .+k06*, .+k*-.2" <n=un5t&on 212 114$2'

0*0 In unction 0*0III ;ctions for In unctions 0*0k**/ )arties 0*0k**/!0" k. 3omplainants. :ost 3ited 3ases Hegroes as users of carriersL segregated facilities had standing to maintain suit to en oin enforcement of state and municipal segregation laws affecting carriers and to en oin maintenance of racial segregation. 3ode :iss.*5/0, EE 0-,*, 0-,*.,, 0-,*.., ..+/'..+..,. 021 C&+&/ R&g)t" 78 1451

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*//5 In unction .+k*/,* k. )ublic ;ccommodations or (acilities. :ost 3ited 3ases !(ormerly .+k02-, .+k*-.0!*"" <n=un5t&on 212 114$2'

0*0 In unction 0*0III ;ctions for In unctions 0*0k**/ )arties 0*0k**/!0" k. 3omplainants. :ost 3ited 3ases Hegroes as users of carriersL segregated facilities were not required to sub ect themselves to arrest in order to maintain suit to en oin enforcement of state and municipal segregation laws affecting common carriers and to en oin municipal authorities from continuing to arrest Hegroes in exercise of their federally protected rights. 3ode :iss.*5/0, EE 0-,*, 0-,*.,, 0-,*.., ..+/'..+..,7 0+ U.S.3.;. E *-/-7 /0 U.S.3.;. E *5+-

051 C&+&/ R&g)t" 78

1451

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*//5 In unction .+k*/,* k. )ublic ;ccommodations or (acilities. :ost 3ited 3ases !(ormerly .+k020.*, .+k020, .+k*-.*2" <n=un5t&on 212 189

0*0 In unction 0*0? )ermanent In unction and Dther 4elief 0*0k*+5 k. Hature and Scope of 4elief. :ost 3ited 3ases Hegroes suing to en oin enforcement of state and municipal segregation laws affecting common carriers and to en oin maintenance of racial segregation were entitled to decree running not only to benefit of Hegro plaintiffs but also for all persons similarly situated, regardless whether action was properly brought as class action under federal rules. (ed.4ules 3iv.)roc. rule 0-!a", 0+ U.S.3.;. H;OS, 3ircuit <udge. )laintiffs, Hegroes living in <ackson, :ississippi, appeal from udgments of the United States 8istrict 3ourt for the Southern 8istrict of :ississippi, S.3. :iFe, <udge, which declared unconstitutional both the so'called Segregation Statutes of the State of :ississippi, (H* and a similar ordinance of the 3ity of <ackson, (203 and declared that each of the plaintiffs had a right to unsegregated transportation service from each of the carrier defendants, (H0 but denied to appellants in unctive or class relief against any of the defendants. &e hold that appellants are entitled to in unctive relief and reverse the udgments, pro tanto. (H*. :iss.3ode ;nn. tit. **, EE 0-,*, 0-,*.,, 0-,*.., and tit. 0+, EE ..+/, ..+,, ..+2, ..+2'6*, ..+., ..+.., !*5/0". (H0. #he defendants'appellees, <ackson 3ity 1ines, Inc., <ackson :unicipal ;irport ;uthority, 3ontinental Southern 1ines, Inc. !#railways", Southern Creyhound 1ines, and Illinois 3entral 4ailroad, Inc. are referred to hereafter as the carrier defendants or carrier appellees. #he latter four are referred to as the interstate carriers. <ackson 3ity 1ines, Inc., 3ontinental Southern 1ines, Inc. and Southern Creyhound 1ines are referred to as bus company defendants or bus company appellee. <urisdiction was invoked under the 3ivil 4ights ;ct, 0+ U.S.3. E *-/-, and /0 U.S.3. E *5+-. )laintiffs alleged that defendants, acting under color of state law, policy, and custom, denied to plaintiffs and the class of all others similarly situated, their right to transportation service free from racial discrimination. #hey based their claim on the (ourteenth ;mendment and the 3ommerce 3lause of the 3onstitution of the United States, and on the Interstate 3ommerce ;ct, *5 U.S.3. EE -!*", -*2!d". )laintiffs sought to en oin the enforcement of state and municipal segregation laws affecting common carriers, and to en oin all defendants from maintaining racial segregation in any manner, by the use of signs or otherwise, on the carriers (H- or in or around their terminals or other facilities anywhere in the state. )laintiffs also sought to en oin the municipal authorities from continuing to arrest, harass, intimidate, threaten or coerce plaintiffs or members of their class in the exercise of their federally protected rights. (H-. &hile the complaint does not allege that seating on the trains of the Illinois 3entral 4ailroad is segregated, this exception does not extend to its depots. ; three udge court, convened pursuant to 0+ U.S.3. E 00+*, invoked the doctrine of equitable abstention =to give the State 3ourts of :ississippi a reasonable opportunity to act.> *55 (.Supp. ,5,, 26- !S.8.:iss.*52*" !4ives,

3.<., dissenting". Dn a direct appeal, the Supreme 3ourt vacated the udgment, and remanded the case to the district court =for expeditious disposition $ $ $ of appellantsL claims of right to unsegregated transportation service .> -25 U.S. -*, -/, +0 S.3t. ,/5, ,,*, . 1.Gd.0d ,*0 !*520". #he Supreme 3ourt held that the abstention doctrine was inapplicable, and that there was no ustification for convening a three udge court. =&e have settled beyond question that no State may require racial segregation of interstate or intrastate transportation facilities. :organ v. !3om. of" ?irginia, -0+ U.S. -.- !22 S.3t. *6,6, 56 1.Gd. *-*."7 Cayle v. %rowder, -,0 U.S. 56- !.. S.3t. */,, * 1.Gd.0d **/"7 %oynton v. !3om. of" ?irginia, -2/ U.S. /,/, !+* S.3t. *+0, , 1.Gd.0d 062". #he question is no longer open7 it is foreclosed as a litigable issue. Section 00+* does not require a three' udge court when the claim that a statute is unconstitutional is wholly insubstantial, legally speaking non' existent. $ $ $ &e hold that three udges are similarly not required when, as here, prior decisions make frivolous any claim that a state statute on its face is not unconstitutional.> -25 U.S. at --, +0 S.3t. at ,,6',,*, . 1.Gd.0d ,*0. #he 3ourt also disposed of the argument that plaintiffs lacked standing to bring the action. =;s passengers using the segregated transportation facilities they are aggrieved parties and have standing to enforce their rights to nonsegregated treatment. :itchell v. United States, -*- U.S. +6, 5- !2* S.3t. +.-, +, 1.Gd. *06*"7 Gvers v. 8wyer, -,+ U.S. 060 !.5 S.3t. *.+, - 1.Gd.0d 000".> -25 U.S. at --,(H/ +0 S.3t. at ,,6',,*, . 1.Gd.0d ,*0. (H/. )laintiffs had also sought to en oin certain criminal prosecutions under :ississippiLs breach of peace statutes. #he Supreme 3ourt held that since plaintiffs did not allege that they had been prosecuted or threatened with prosecution under these statutes, they lacked standing to sue. -25 U.S. at -0, +0 S.3t. at ,,6, . 1.Gd.0d ,*0. (204 Upon the remand, the district court, on the original record before the three udge court, entered udgment declaring the statutes and ordinance unconstitutional, and stating that =each of the three plaintiffs has a right to unsegregated transportation service from each of the carrier defendants.> It ruled, however, that the action was =not a proper class action, and no relief may be granted other than that to which the plaintiffs are personally entitled.> #he district court found that the segregation statutes were no longer enforced, that the record disclosed only =isolated instancesL of improper behavior by law enforcement officials, that segregation signs had been removed from the premises of the carrier defendants, and that all terminal facilities of the carriers were now being fully used by members of all races. It therefore denied in unctive relief, but retained urisdiction for the entry of further orders as might subsequently appear appropriate. )laintiffs appeal from all three orders, insofar as they $$!a" refused to grant in unctive relief, $$!b" refused to recogniFe the class nature of the action, and $$!c" refused to en oin the 3ity of <ackson from maintaining racial signs on the sidewalks outside the waiting rooms at the terminals of the carrier defendants. #hese signs had been ignored in the findings and orders of the district court. Dur decision in United States v. 3ity of <ackson, , 3ir., -*+ (.0d *, after the notice of appeal herein was filed, renders moot the third of the three bases of the appeal. &e ordered that an in unction should issue against the 3ity of <ackson, its 3ommissioners, and its 3hief of )olice directing the removal of these same signs and any others indicating or suggesting that any of the terminal facilities are for the use of persons of any particular race or color . &e further directed that the defendants be en oined from =otherwise seeking to enforce or encourage racial segregation in the use of terminal facilities of the carriers.L Dnly the first two bases for the appeal herein remain for our consideration. 3o!8ro*">& +. ;6&"ter, 380 U.S. 479, 85 S.Ct. 111#, 14 L.Ed.2d 22 $U.S.La. Apr 2#, 19#5'

;ction under 3ivil 4ights ;ct for declaratory relief and in unction restraining defendants from prosecuting or threatening to prosecute plaintiffs for alleged violations of 1ouisiana Subversive ;ctivities and 3ommunist 3ontrol 1aw and 3ommunist )ropaganda 3ontrol 1aw. #he United States 8istrict 3ourt for the Gastern 8istrict of 1ouisiana, 00. (.Supp. ,,2, dismissed the complaint, and plaintiffs appealed. #he United States Supreme 3ourt, :r. <ustice %rennan, held that provision of 1ouisiana Subversive ;ctivities and 3ommunist 3ontrol 1aw defining subversive organiFation violates due process in that language is unduly vague and uncertain and broad. <udgment reversed and cause remanded. :r. <ustice Harlan and :r. <ustice 3lark dissented. &est Headnotes 011 Court" 10# 508$1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!*" k. In general. :ost 3ited 3ases Statute providing that United States court may not grant in unction to stay state court proceedings except as expressly authoriFed by act of 3ongress, or where necessary in aid of its urisdiction, or to protect or effectuate its udgments does not preclude in unction against institution of state court proceedings but only bars stays of suits already instituted. 0+ U.S.3.;. E 00+-. 021 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal proceedings. :ost 3ited 3ases &here grand ury had not been convened and indictments had not been obtained $$until after filing of complaint seeking interlocutory and permanent relief under 3ivil 4ights ;ct from prosecution for alleged violation of 1ouisiana Subversive ;ctivities and 3ommunist 3ontrol 1aw and 3ommunist )ropaganda 3ontrol 1aw, no state IproceedingsJ were pending within purview of statute providing that United States court may not grant in unction to stay proceedings in state court. 0+ U.S.3.;. E 00+-7 /0 U.S.3.;. E *5+-7 1S;'4.S. */@-,+'*/@-./, */@-56' */@-56.+. 031 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal proceedings. :ost 3ited 3ases Indictments obtained subsequent to filing of complaint under 3ivil 4ights ;ct seeking declaratory and in unctive relief against prosecution for alleged violations of 1ouisiana Subversive ;ctivities and 3ommunist 3ontrol 1aw and 3ommunist )ropaganda 3ontrol 1aw were not IproceedingsJ against which federal in unctive relief was precluded

by statute. 0+ U.S.3.;. E 00+-7 /0 U.S.3.;. E *5+-7 1S;'4.S. */@-,+'*/@-./, */@-56'*/@-56.+. 041 Court" 10# 508$1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!*" k. In general. :ost 3ited 3ases E+&den5e 157 82

*,. Gvidence *,.II )resumptions *,.k+0 k. <udicial proceedings. :ost 3ited 3ases E+&den5e 157 83$1'

*,. Gvidence *,.II )resumptions *,.k+- Dfficial )roceedings and ;cts *,.k+-!*" k. In general. :ost 3ited 3ases It is generally assumed that state court and prosecutors will observe constitutional limitations as expounded by Supreme 3ourt and that mere possibility of erroneous initial application of constitutional standards will usually not amount to irreparable in ury necessary to ustify disruption of orderly state proceedings. 051 <n=un5t&on 212 1

0*0 In unction 0*0I Hature and Crounds in Ceneral 0*0I!;" Hature and (orm of 4emedy 0*0k* k. Hature and purpose in general. :ost 3ited 3ases In unctive relief looks to the future. 0#1 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal proceedings. :ost 3ited 3ases ;llegations, if true, depicting situation in which defense of stateLs criminal prosecution would not assure adequate vindication of constitutional rights and suggesting that substantial loss or impairment of freedoms of expression would occur if plaintiffs were required to await state courtLs disposition and ultimate review in Supreme 3ourt of any adverse determination established irreparable in ury necessary to warrant in unctive relief . 0+ U.S.3.;. E 00+-7 /0 U.S.3.;. E *5+-. 071 <n=un5t&on 212 0*0 In unction 105$2'

0*0II Sub ects of )rotection and 4elief 0*0II!H" :atters 4elating to 3onspiracies or 3riminal ;cts 0*0k*6, 3riminal )rosecutions 0*0k*6,!0" k. Invalidity of statute or ordinance. :ost 3ited 3ases ;ssumption that defense of criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in cases involving statutes regulating expression where such statutes have overbroad sweep lending themselves readily to denial of constitutional rights of freedom of speech and expression. U.S.3.;.3onst. ;mend. *. 081 C&+&/ R&g)t" 78 1395$5'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-50 )leading .+k*-5, )articular 3auses of ;ction .+k*-5,!/" 3riminal 1aw Gnforcement7 )olice and )rosecutors .+k*-5,!," k. In general. :ost 3ited 3ases !(ormerly .+k0-,!,.*", .+k0-,!,", .+k*-.*0!-"" Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal proceedings. :ost 3ited 3ases 3omplaint under 3ivil 4ights ;ct seeking declaratory relief and in unction restraining defendants from prosecuting or threatening to prosecute plaintiffs for alleged violations of 1ouisiana Subversive ;ctivities and 3ommunist 3ontrol 1aw and 3ommunist )ropaganda 3ontrol 1aw alleged sufficient irreparable in ury to ustify equitable relief. 1S;'4.S. */@-,+'*/@-./, */@-56'*/@-56.+7 /0 U.S.3.;. E *5+-. 091 -edera/ Court" 1702 53

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention *.6%k,- k. (irst ;mendment7 freedom of religion, speech and press. :ost 3ited 3ases !(ormerly *62k026./" 8istrict 3ourt erred in holding that it should abstain from determining constitutionality of 1ouisiana Subversive ;ctivities and 3ommunist 3ontrol 1aw and 3ommunist )ropaganda 3ontrol 1aw pending authoritative interpretation of statutes in state courts, where complaint under 3ivil 4ights ;ct attacked such statutes as being unconstitutional on their face as abridging free expression or $$as applied for purpose of discouraging protected activities. 1S;'4.S. */@-,+'*/@-./, */@-56'*/@-56.+7 /0 U.S.3.;. E *5+-7 U.S.3.;.3onst. ;mends. *, */. 0101 -edera/ Court" 1702 53

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention

*.6%k,- k. (irst ;mendment7 freedom of religion, speech and press. :ost 3ited 3ases !(ormerly *62k026./" 8octrine of abstention is inappropriate in cases where statutes are ustifiably attacked on their face as abridging free expression or $$as applied for purpose of discouraging protected activities. 0111 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal proceedings. :ost 3ited 3ases ;llegations attacking good faith of defendants in enforcing 1ouisiana Subversive ;ctivities and 3ommunist 3ontrol 1aw and 3ommunist )ropaganda 3ontrol 1aw and claiming that defendants had invoked and threatened to continue to invoke criminal process without any hope of ultimate success but only to discourage plaintiffsL civil rights activities sufficiently stated claim under 3ivil 4ights ;ct. 1S;'4.S. */@-,+'*/@-./, */@-56'*/@-56.+7 /0 U.S.3.;. E *5+-. 0121 <n=un5t&on 212 85$1'

0*0 In unction 0*0II Sub ects of )rotection and 4elief 0*0II!G" )ublic Dfficers and Gntities 0*0k+, Gnforcement of Statutes, Drdinances, or Dther 4egulations 0*0k+,!*" k. In general. :ost 3ited 3ases In considering whether in unctive relief should be granted, federal district court should consider statute as of time its urisdiction is invoked rather than at some hypothetical future date. 0131 <n=un5t&on 212 105$1'

0*0 In unction 0*0II Sub ects of )rotection and 4elief 0*0II!H" :atters 4elating to 3onspiracies or 3riminal ;cts 0*0k*6, 3riminal )rosecutions 0*0k*6,!*" k. In general. :ost 3ited 3ases &here no readily apparent construction of statute suggests itself as vehicle for rehabilitating statute in single prosecution, parties who claim irreparable in ury will result as result of enforcement of such statute are entitled to in unction. :r. <ustice %4GHH;H delivered the opinion of the 3ourt. ;ppellants filed a complaint in the 8istrict 3ourt for the Gastern 8istrict of 1ouisiana, invoking the 3ivil (482 4ights ;ct, 4ev.Stat. s *5.5, /0 U.S.3. s *5+- !*5,+ ed." and seeking declaratory relief and an in unction restraining appellees'the Covernor, police and law enforcement officers, and the 3hairman of the 1egislative <oint 3ommittee on Un';merican ;ctivities in 1ouisiana'from prosecuting or threatening to prosecute appellants for alleged violations of the 1ouisiana Subversive ;ctivities and 3ommunist 3ontrol 1aw and the 3ommunist )ropaganda 3ontrol 1aw.(H* ;ppellant Southern 3onference Gducational (und, Inc. !S3G(", is active in fostering civil rights for Hegroes in 1ouisiana and other States of the South. ;ppellant 8ombrowski is its Gxecutive 8irector7 intervenor Smith, its #reasurer7 and intervenor &altFer, SmithLs law partner and an attorney for S3G(. #he complaint alleges that the statutes on their face violate the (irst and (ourteenth ;mendment guarantees securing

freedom of expression, because over'breadth makes them susceptible of sweeping and improper application abridging those rights. Supported by affidavits and a written offer of proof, $$the complaint further alleges that the threats to enforce the statutes against appellants are not made with any expectation ((1119 of securing valid convictions, but rather are part of a plan to employ arrests, seiFures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Hegro citiFens of 1ouisiana. (H*. #he Subversive ;ctivities and 3ommunist 3ontrol 1aw is 1a.4ev.Stat. ss */@-,+ through */@-./ !3um.Supp.*520". #he 3ommunist )ropaganda 3ontrol 1aw is 1a.4ev.Stat. ss */@-56 through */@-56.+ !3um.Supp.*520". ; three' udge district court, convened pursuant to 0+ U.S.3. s 00+* !*5,+ ed." dismissed the complaint, one udge dissenting, =for failure to state a claim upon which relief can be granted.> 00. (.Supp. ,,2, ,2/. #he ma ority(483 were of the view that the allegations, conceded to raise serious constitutional issues, did not present a case of threatened irreparable in ury to federal rights which warranted cutting short the normal ad udication of constitutional defenses in the course of state criminal prosecutions7 rather, the ma ority held, this was an appropriate case for abstention, since a possible narrowing construction by the state courts would avod unnecessary decision of constitutional questions. In accordance with this view the court withdrew its initial determination that the statutes were not unconstitutional on their face. 00. (.Supp., at ,20',2-. )ostponement of consideration of the federal issues until state prosecution and possible review here of adverse state determination was thought to be especially appropriate since the statutes concerned the StateLs =basic right of self'preservation> and the threatened prosecution was =imbued $ $ $ with an aura of sedition or treason or acts designed to substitute a different form of local government by other than lawful means $ $ $>7 federal court interference with enforcement of such statutes =truly $ $ $ would be a massive emasculation of the last vestige of the dignity of sovereignty.> 00. (.Supp., at ,,5, ,26. &e noted probable urisdiction in order to resolve a seeming conflict with our later decision in %aggett v. %ullitt, -.. U.S. -26, +/ S.3t. *-*2, *0 1.Gd.0d -.., and to settle important questions concerning federal in unctions against state criminal prosecutions threatening constitutionally protected expression. -.. U.S. 5.2, +/ S.3t. *++*, *0 1.Gd.0d ./,. &e reverse. I. M*NM0NM-NM/NM,N $$In Gx parte Ooung, 065 U.S. *0-, 0+ S.3t. //*, ,0 1.Gd. .*/, the fountainhead of federal in unctions against state prosecutions, the 3ourt characteriFed the power and its proper exercise in broad terms@ it would be ustified where state officers =$ $ $ threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties (484 affected an unconstitutional act, violating the (ederal 3onstitution $ $ $.> 065 U.S., at *,2, 0+ S.3t., at /,0. Since that decision, however, considerations of federalism have tempered the exercise of equitable power,(H0 for the 3ourt has recogniFed that ((1120 federal interference with a StateLs good' faith administration of its criminal laws is peculiarly inconsistent with our federal framework. It is generally to be assumed that state courts and prosecutors will observe constitutional limitations as expounded by this 3ourt, and that the mere possibility of erroneous initial application (485 of constitutional standards will usually not amount to the irreparable in ury necessary to ustify a disruption of orderly state proceedings. In 8ouglas v. 3ity of <eannette, -*5 U.S. *,., 2- S.3t. +.., +. 1.Gd. *-0/, for example, the 3ourt upheld a district courtLs refusal to en oin application of a city ordinance to religious solicitation, even though the ordinance was that very day held unconstitutional as so applied on review of a criminal conviction under it. :urdock v. 3ommonwealth of )ennsylvania, -*5 U.S. *6,, 2S.3t. +.6, +. 1.Gd. *050. Since in unctive relief looks to the future, and it was not alleged that )ennsylvania courts and prosecutors would fail to respect the :urdock ruling, the 3ourt found nothing to ustify an in unction. ;nd in a variety of other contexts the 3ourt has found no special circumstances to warrant cutting short the normal ad udication of constitutional defenses in the course of a criminal prosecution.(H- In such cases it does not appear that the plaintiffs =have been threatened with any in ury other than that incidental to every criminal proceeding brought lawfully and in good faith, or that a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford petitioners any protection which they could not secure by prompt trial and

appeal pursued to this 3ourt.> 8ouglas v. 3ity of <eannette, supra, -*5 U.S., at *2/, 2- S.3t., at ++*. M2N %ut the allegations in this complaint depict a situation in which defense of the StateLs criminal prosecution will not assure adequate vindication of constitutional rights. (48# #hey suggest that a substantial loss or impairment of freedoms of expression will occur if appellants must await the state courtLs disposition and ultimate review in this 3ourt of any adverse determination. #hese allegations, if true, clearly show irreparable in ury. M.N ; criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of (irst ;mendment freedoms. See, e.g., Smith v. )eople of State of 3alifornia, -2* U.S. */., +6 S.3t. 0*,, / 1.Gd.0d 06,. &hen the statutes also have an overbroad sweep, as is here alleged, the haFard of loss or substantial impairment of those precious rights may be critical. (or in such cases, the statutes lend themselves too readily to denial of those rights. #he assumption that ((1121 defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases. See %aggett v. %ullitt, supra, -.. U.S., at -.5, +/ S.3t., at *-02. (or =!t"he threat of sanctions may deter $ $ $ almost as potently as the actual application of sanctions. $ $ $> H;;3) v. %utton, -.* U.S. /*,, /--, +- S.3t. -0+, --+, 5 1.Gd.0d /6,. %ecause of the sensitive nature of constitutionally protected expression, we have not required that all of those sub ect to overbroad regulations risk prosecution to test their rights. (or free expression'of transcendent value to all society, and not merely to those exercising their rights'might be the loser. 3f. Carrison v. State of 1ouisiana, -.5 U.S. 2/, ./'.,, +, S.3t. 065, 0*,, 0*2, *- 1.Gd.0d *0,. (or example, we have consistently allowed attackes on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. #hornhill v. State of ;labama, -*6 U.S. ++, 5.'5+, 26 S.3t. .-2, ./*'./0, +/ 1.Gd. *65-7 H;;3) v. %utton, supra, -.* U.S., at /-0'/--, +- S.3t., at --.' --+7 cf. ;ptheker v. Secretary of State, -.+ U.S. ,66, ,*,',*., +/ S.3t. *2,5, *22+'*225, *0 1.Gd.0d 5507 United States v. 4aines, -20 U.S. *., 0*'00, +6 S.3t. ,*5, ,00',0-, / 1.Gd.0d ,0/. &e have fashioned this exception to the usual rules governing standing, see United States v. 4aines, supra, because of (487 the =$ $ $ danger of tolerating, in the area of (irst ;mendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.> H;;3) v. %utton, supra, -.* U.S., at /--, +- S.3t., at --+. If the rule were otherwise, the contours of regulation woudl have to be hammered out case by case'and tested only by those hardy enough to risk criminal prosecution to determine the properscope of regulation. 3f. Gx parte Ooung, supra, 065 U.s., at */.'*/+, 0+ S.3t., at //+'//5. %y permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, avoided making vindication of freedom of expression await the outcome of protracted litigation. :oreover, we have not thought that the improbability of successful prosecution makes the case different. #he chilling effect upon the exercise of (irst ;mendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure. See H;;3) v. %utton, supra, -.* U.S., at /-0'/--, +- S.3t., at --.'--+7 cf. %aggett v. %ullitt, supra, -.. U.S., at -.+'-.5, +/ S.3t., at *-027 %ush v. Drleans School %oard, 8.3., *5/ (.Supp. *+0, *+,, affirmed sub nom. #ugwell v. %ush, -2. U.S. 56., +* S.3t. *502, 2 1.Gd.0d *0,67 Cremillion v. United States, -2+ U.S. **, +0 S.3t. **5, . 1.Gd.0d .,. ;ppellantsL allegations and offers of proof outline the chilling effect on free expression of prosecutions initiated and threatened in this case. Garly in Dctober *52- appellant 8ombrowski and intervenors Smith and &altFer were arrested by 1ouisiana state and local police and charged with violations of the two statutes. #heir offices were raided and their files and records seiFed. (H/ 1ater in ((1122 Dctober a state udge quashed the (488 arrest warrants as not based on probable cause, and discharged the appellants. Subsequently, the court granted a motion to suppress the seiFed evidence on the ground that the raid was illegal. 1ouisiana officials continued, however, to threaten prosecution of the appellants, who thereupon filed this action in Hovember. Shortly after the three' udge court was convened, a grand ury was summoned in the )arish of Drleans to hear evidence looking to indictments of the individual appellants. Dn appellantsL application <udge &isdom issued a temporary restraining order against prosecutions pending hearing and decision of the case in the 8istrict 3ourt. (ollowing a hearing the 8istrict 3ourt, over <udge &isdomLs dissent, dissolved the temporary restraining order and, at the same time, handed down an order dismissing the complaint. #hereafter the grand ury returned indictments under the Subversive ;ctivities and 3ommunist 3ontrol 1aw against the individual appellants.(H,

(H/. #he circumstances of the arrests are set forth in <udge &isdomLs dissenting opinion@ =;t gunpoint their homes and offices were raided and ransacked by police officers and trustees from the House of 8etention acting under the direct supervision of the staff director and the counsel for the State Un';merican ;ctivities 3ommittee. #he home and office of the director of Southern 3onference Gducational (und were also raided. ;mong the dangerous articles removed was #horeauLs <ournal. ; truckload of files, membership lists, subscription lists to S3G(Ls newspaper, correspondence, and records were removed from S3G(Ls office, destroying its capacity to function. ;t the time of the arrests, :r. )fister, 3hairman of the 3ommittee, announced to the press that the raids and arrest resulted from =racial agitation>.L 00. (.Supp., at ,.-. (H,. )rosecution under these indictments is awaiting decision of this case. #hese events, together with repeated announcements by appellees that the appellant organiFation is a subversive or 3ommunist'front organiFation, whose members must register or be prosecuted under the 1ouisiana statutes, have appellants allege, frightened off potential members and contributors. 3f. <oint ;nti'(ascist 4efugee 3ommittee v. :cCrath, -/* U.S. *0-, .* S.3t. 20/, 5, 1.Gd. +*.. SeiFures of documents and records have paralyFed operations and threatened exposure of the (489 identity of adherents to a locally unpopular cause. See H;;3) v. State of ;labama, ex rel. )atterson, -,. U.S. //5, .+ S.3t. **2-, 0 1.Gd.0d */++. ;lthough the particular seiFure has been quashed in the state courts, the continuing threat of presecution portends further arrests and seiFures, some of which may be upheld and all of which will cause the organiFation inconvenience or worse. In (reedman v. State of :aryland, -+6 U.S. ,*, +, S.3t. .-/, we struck down a motion picture censorship statute solely because the regulatory scheme did not sufficiently assure exhibitors a prompt udicial resolution of (irst ;mendment claims. #he interest in immediate resolution of such claims is surely no less where criminal prosecutions are threatened under statutes allegedly overbroad and seriously inhibiting the exercise of protected freedoms. Hot only does the complaint allege far more than an =in ury other than that incidental to every criminal proceeding brought lawfully and in good faith,> but appellants allege threats to enforce statutory provisions other than those under which indictments have been brought. Since there is no immediate prospect of a final state ad udication as to those other sections'if, indeed, there is any certainty that prosecution of the pending indictments will resolve all constitutional issues presented'a series of state criminal prosecutions will not provide satisfactory resolution of constitutional issues. M+N It follows that the 8istrict 3ourt erred in holding that the complaint fails to allege sufficient irreparable in ury to ustify equitable relief. M5NM*6N #he 8istrict 3ourt also erred in holding that it should abstain pending authoritative interpretation of the statutes in the state courts, which might hold that they did not apply to S3G(, or that they were unconstitutional as applied to S3G(. &e hold the abstention doctrine is inappropriate for cases such as the present one where, unlike 8ouglas v. 3ity of <eannette, statutes are ustifiably(490 attacked on their face as abridging free expression , or as applied for the purpose of discouraging protected activities. ((1123 M**N (irst, appellants have attacked the good faith of the appellees in enforcing the statutes, claiming that they have invoked, and threaten to continue to invoke, criminal process without any hope of ultimate success, but only to discourage appellantsL civil rights activities. If these allegations state a claim under the 3ivil 4ights ;ct, /0 U.S.3. s *5+-, as we believe they do, see %eauregard v. &ingard, 0-6 (.Supp. *2. !8.3.S.8.3alif.*52/"7 %argainer v. :ichal, 0-- (.Supp. 0.6 !8.3.H.8.Dhio *52/", the interpretation ultimately put on the statutes by the state courts is irrelevant. (or an interpretation rendering the statute inapplicable to S3G( would merely mean that appellants might ultimately prevail in the state courts. $$It would not alter the impropriety of appelleesL invoking the statute in bad faith to impose continuing harassment in order to discourage appellantsL activities, as appellees allegedly are doing and plan to continue to do.

$$

2eauregard +. 9&ngard, 230 -.Supp. 1#7 $S.3.Ca/. .un 01, 19#4'

on point
;ction for deprivation of civil rights. Upon motion to dismiss, the 8istrict 3ourt, &einberger, <., held that complaint which alleged that police officers of 3alifornia city arrested and imprisoned plaintiff on charge that plaintiff had violated 3alifornia bookmaking statute, and that officersL acts were without cause, malicious, and intentional for purpose of punishing plaintiff for having criticiFed officers and in violation of plaintiffLs rights under (ourteenth ;mendment to (ederal 3onstitution stated cause of action under federal civil rights statute, and that doctrine of abstention was inapplicable. Drder in accordance with opinion. 051 C&+&/ R&g)t" 78 1324

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-0- 3olor of 1aw .+k*-0/ k. In Ceneral. :ost 3ited 3ases !(ormerly .+k*52.*, .+k*52, .+k*-.,!*", .+k*-" :isuse of power, possessed by virtue of state law and made possible only because wrongdoer is clothed with authority of state law, is action taken under Icolor of state lawJ within statute relating to civil action for deprivation of rights under color of any statute, ordinance, regulation, custom, or usage of any state or territory. /0 U.S.3.;. E *5+-. 0#1 C&+&/ R&g)t" 78 132#$8'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-0- 3olor of 1aw .+k*-02 )articular 3ases and 3ontexts .+k*-02!+" k. )olice or )eace Dfficers7 )risons. :ost 3ited 3ases !(ormerly .+k*5+!.", .+k*-.,!-", .+k*-" 3ity police officers acted under Icolor of state lawJ in arresting plaintiff for bookmaking and imprisoning him pursuant to such arrest, even though they allegedly misused their authority, abused their position, and acted under pretense of law for their own personal revenge and satisfaction. &estLs ;nn.3al.)en.3ode, E --.a, subds. *, -7 /0 U.S.3.;. E *5+-. 081 C&+&/ R&g)t" 78 1003

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*660 3onstitutional and Statutory )rovisions .+k*66- k. In Ceneral. :ost 3ited 3ases !(ormerly .+k*50, .+k*-.*, .+k0" Statute relating to action for deprivation of civil rights involves prohibition of a federal statute and as a federal statute, may not be set at naught or its benefits denied by state statutes, common law rules, or decisional law. 0141 Con"t&tut&ona/ La* 92 3910

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!%" )rotections )rovided and 8eprivations )rohibited in Ceneral 50k-56+ :ental State 50k-5*6 k. )urpose or Intent. :ost 3ited 3ases !(ormerly 50k0,,!0", 50k0,," &here police officers are involved in actions for deprivation of civil rights, motive bears heavily in determining what constitutes lack of due process, but specific intent to deprive a person of a specific constitutional right need not be present. U.S.3.;.3onst. ;mend. */7 /0 U.S.3.;. E *5+-. 0151 Con"t&tut&ona/ La* 92 4041

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!C" )articular Issues and ;pplications 50PP?II!C"* In Ceneral 50k/6/* k. 4estraint, 3ommitment, and 8etention. :ost 3ited 3ases !(ormerly 50k0,,!*", 50k0,," )erson is deprived of his liberty when he is arrested and imprisoned, and freedom from arrest and from imprisonment except through due process are rights implicit in concept of ordered liberty and guaranteed by (ourteenth ;mendment to (ederal 3onstitution against invasion by state. U.S.3.;.3onst. ;mend. */. 01#1 Con"t&tut&ona/ La* 92 453#

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!H" 3riminal 1aw 50PP?II!H"- 1aw Gnforcement 50k/,-- Stop and ;rrest 50k/,-2 k. Crounds. :ost 3ited 3ases !(ormerly 50k0,,!0", 50k0,,!*", 50k0,," Con"t&tut&ona/ La* 92 4544

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!H" 3riminal 1aw 50PP?II!H"- 1aw Gnforcement 50k/,/- 3ustody and 3onfinement of Suspects7 )retrial 8etention 50k/,// k. In Ceneral. :ost 3ited 3ases !(ormerly 50k0,,!0", 50k0,,!*", 50k0,," ;rrest by state officers without warrant or probable cause and with an ulterior motive, not with purpose of enforcing law, is an arrest without due process, and imprisonment by the officers pursuant to such arrest is likewise without due process. U.S.3.;.3onst. ;mend. */. 0171 C&+&/ R&g)t" 78 1088$4'

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*6++ )olice, Investigative, or 1aw Gnforcement ;ctivities .+k*6++!/" k. ;rrest and 8etention. :ost 3ited 3ases

!(ormerly .+k*--, .+k*-./!-"" State officers violate federal civil rights statute when, under color of law, they make an arrest and imprison arrested person without due process. U.S.3.;.3onst. ;mend. */7 /0 U.S.3.;. E *5+-. 0181 C&+&/ R&g)t" 78 1395$#'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-50 )leading .+k*-5, )articular 3auses of ;ction .+k*-5,!/" 3riminal 1aw Gnforcement7 )olice and )rosecutors .+k*-5,!2" k. ;rrest, Search, and 8etention. :ost 3ited 3ases !(ormerly .+k0-,!2", .+k*-.*0!/"" ;llegations that police officers of 3alifornia city, in arresting and imprisoning plaintiff for violating 3alifornia bookmaking statute, acted without cause, maliciously and intentionally, to punish plaintiff for having criticiFed officers, in violation of plaintiffLs rights under (ourteenth ;mendment stated cause of action under federal civil rights statute. U.S.3.;.3onst. ;mend. */7 /0 U.S.3.;. E *5+-. 0201 -edera/ Court" 1702 48

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention *.6%k/+ k. 3ivil 4ights in Ceneral. :ost 3ited 3ases !(ormerly *62k026./" 8octrine of abstention would not apply to action under federal statute for deprivation of civil rights . /0 U.S.3.;. E *5+-.

At p. $%&,
SG3DH8 ;:GH8G8 3D:)1;IH# )laintiff alleges that his action is one to redress the deprivation, under color of law of the State of 3alifornia, of the rights, privileges or immunities secured by the 3onstitution within the meaning of Section *5+- of #itle /0 U.S.3.;. )laintiff further alleges that defendant &ingard was at all times mentioned in the complaint the duly elected, appointed, qualified and acting 3hief of )olice of the 3ity of Dceanside7 defendant :ichaels was at all times mentioned a police officer of said 3ity7 defendant 3owley was at all times mentioned a deputy sheriff, rendering services as a fully authoriFed police officer of the 3ity of Dceanside7 all defendants were at all times mentioned acting within the scope of their employment as 3hief of )olice and police officers, and at all times mentioned acted under color of authority as such police officers. #here is also an allegation as to each officer that he was acting =individually and as a duly authoriFed agent and employee of the 3ity of Dceanside>. &e do not understand the use of the word =individually>, since defendants could not act as =individualsL and as police officers. If they acted as individuals, no cause of action would be stated under Section *5+- of /0 U.S.3.;., because as individuals, they could not act under =color of law of the State of 3alifornia>. Since it is clear that plaintiff refers to all the acts of defendants being performed in their official capacity, we shall treat the word =individually> as surplusage. It is alleged that plaintiff was a candidate for the office of 3ity 3ouncilman in the 3ity of Dceanside, and during the

political campaign plaintiff severely criticiFed the 3hief of )olice, defendant &ingard, and demanded his removal from office and further, verbally attacked the Dceanside )olice 8epartment7 that defendant &ingard warned plaintiff to =lay off or else. $ $ $> but plaintiff continued his criticism7 that plaintiffLs attacks upon the defendant &ingard and upon the )olice 8epartment created resentment and a desire for revenge and $$that the defendants thereafter deliberately, intentionally and maliciously conceived a plan to force plaintiff into a compromising act or position in order to give it the false appearance of a crime, cause plaintiff to be arrested, give him a police record, bring him into disgrace in his community, as a punishment for his criticism aforesaid. It is then alleged that pursuant to such plan plaintiff was arrested by defendants without a warrant having been issued for such arrest7 that plaintiff was taken into custody by defendants and by them conveyed to ail, thus being deprived of his liberty7 that plaintiff was by defendants booked into ail on a criminal charge, imprisoned for several hours and thus deprived of his liberty7 $$that after a trial in the Superior 3ourt of San 8iego 3ounty, plaintiff was acquitted7 that all (171 of the acts of the defendants were without cause, were malicious and intentional and done for the purpose of punishing plaintiff for having criticiFed a defendant or defendants, and were in violation of plaintiffLs rights under the (ourteenth ;mendment.

At p. $83,
&e shall now consider the cause of action as stated in the complaint in the light of whether there was a deprivation of rights =implicit in the concept of ordered liberty>. #hough counsel for plaintiff refer in their brief to =arrests without warrant, without probable cause> we have more, in this complaint@ an arrest without a warrant and without probable cause by officers acting under color of law, actuated, not by a desire to enforce the law, but by an ulterior motive and an imprisonment by the officers for the same motive. (H0. M*/N In determining what constitutes lack of =due processL we think that =motive> should and does bear heavily in cases under Section *5+-, /0 U.S.3.;. where police officers are involved, though specific intent to deprive a person of a specific constitutional right need not be present. (or instance, in the following opinions the use of certain language@ !Gmphasis supplied" =&rongdoer> in the definition of color of law, United States v. 3lassic, -*- U.S. 055, 2* S.3t. *6-*, +, 1.Gd. *-2+, quoted in most 3ivil 4ights cases, under both civil and criminal sections. 3ongress meant to give a remedy to one deprived of constitutional rights by an officialLs abuse of his position. :onroe v. )ape, -2, U.S. *2., *.*, +* S.3t. /.-, /.2, , 1.Gd.0d /50. (ull and factual allegations of the complaint set out in the opinion showed a =bad> motive unconnected with law enforcement, in Oork v. Story, 5 3ir. *52-, -0/ (.0d /,6, /,,. =%ut here it is alleged that appellees had an unlawful purpose in exercising force and in conducting a public search .> !p. --" ;nd, =the only legitimate purpose of a search is to ascertain whether articles which the officers have a right to seiFe are on the person or the premises being searched. ;ny search is unauthoriFed and so becomes unreasonable in the constitutional sense when it goes beyond(184 that purpose.> !p. -0" 3ohen v. :orris, 5 3ir. *520, -66 (.0d 0/. =Ho one has a constitutional right to be free from a law officerLs honest misunderstanding of the law.> ;gnew v. 3ity of 3ompton, 5 3ir.*5,., 0-5 (.0d 002, 0-*. =Dfficials must be protected from tort actions based upon honest misunderstandings of statutory authority and mere errors of udgment.> Selico v. <ackson, 8.3.S.8.3al., *520, 06* (.Supp. /.,, /.+. :aryland v. Heyse, *6 3ir.*52-, -*, (.0d -*0, -*/, there were three arrests of the person, two in one month and one two years later, no warrant, no charges filed7 each occasion plaintiff ws questioned and detained several hours.

3ourt said it was a ury question whether the conduct of the police officers on the three occasions was so arbitrary, unreasonable and without probable cause as to sub ect the plaintiff to a deprivation of rights guaranteed by the 3onstitution of the United States. #he wording in :onroe v. )ape, mentioning an officialLs =abuse> of his position was cited. =#heir =bad> motive may in some situations become critical.L Cager v. %ob Seidel, 8.3.3ir.*520, -66 (.0d .0., .-0. #he complaint =also stated the purpose was punishment due to plaintiffLs refusal to incriminate himself $ $ $.> Hardwick v. Hurley, . 3ir.*52*, 0+5 (.0d ,05, ,-*. Striker v. )ancher, 2 3ir.*52-, -*. (.0d .+6, .+/ as follows@ !action under /0 U.S.3.;. E *5+-". =#his statute is aimed at reprehensible action on the part of the defendant in the civil action authoriFed by it. =:isuse> of power and =wrongdoer> were the terms used by the 3ourt in the 3lassic case, supra, and repeated in :onroe v. )ape. #he cases bear out this view. $ $ $ In 3ulp, a state officer without cause arrested certain persons for the purpose of extortion. $ $ $= #he case of Hesmith v. ;lford, , 3ir. *52-, -*+ (.0d **6, cert. den. -., U.S. 5.,, +/ S.3t. /+5, ** 1.Gd.0d /06, contains some rather general findings, and requires elaboration for our purpose. ; white professor and other white people were dining with colored people in a private dining room in ;labama. #hey were arrested without warrant and without probable cause, and charged with =disorderly conduct>. #he 3ourt said at page *0* =$ $ $ %ut liberty is at an end if a police officer may without warrant arrest, not the person threatening violence, but those who are its likely victims merely because the person arrested is engaging in conduct which, though peaceful and legally and constitutionally protected, is deemed offensive and provocative to settled social customs and practices.> &e find the following two cases of special interest. Heither has been overruled or questioned, as far as we can ascertain. In 3ulp v. United States, + 3ir. *5/0, *-* (.0d 5-, at p. 5+ the 3ourt said@ =&e do not doubt that the immunity of an inhabitant of the United States from a deprivation of life, liberty, or property by state action not amounting to due process of law is an immunity secured and protected by the due process clause of the (ourteenth ;mendment. $ $ $ =It is our opinion that a state law enforcement officer who, under color of state law, willfully and without cause, arrests and imprisons an inhabitant of the United States for the purpose of extortion, deprives him of a right, privilege, and immunity secured and protected by the 3onstitution of the United States $ $ $.L(H0+ In %rown v. United States, 2 3ir. *5,-, 06/ (.0d 0/. the charge was that %rown and a deputy sheriff conspired to deprive certain persons of rights, privileges and immunities secured to them under the (185 3onstitution. #he overt acts were arrests by the sheriff and placing the persons in ail until they paid money to the sheriff for %rown. #he 3ourt said@ =$ $ $ #he United States 3onstitution protects rights guaranteed by the (ourteenth ;mendment. Screws v. United States, -0, U.S. 5*, *6-'*6, !2, S.3t. *6-*, +5 1.Gd. */5,"7 &illiams v. United States, -/* U.S. 5., *6* !.* S.3t. ,.2, 5, 1.Gd. ../". #hese rights include the right to be tried by a legally constituted court, the right not to be deprived of liberty without due process and the right not to be arrested by an officer acting arbitrarily without cause and for an ulterior purpose. &illiams v. United States, supra, -/* U.S. at page *6* !.* S.3t. at page ,.5"7 &olf v. 3olorado, --+ U.S. 0,, 0., 0+ !25 S.3t. *-,5, 5- 1.Gd. *.+0"7 3atlette v. United States, / 3ir., *-0 (.0d 560, 562.> ;t page 0,6 of 06/ (.0d, the 3ourt said@ =; state law enforcement officer, who under color of state law, willfully and without cause arrests and imprisons an

inhabitant of the United States for the purpose of extortion deprives him of a right, privilege and immunity secured and protected by the 3onstitution of the United States and commits an offense defined under *+ U.S.3. Section 0/0. $ $ $L(H05 M*,NM*2NM*.N #here can be no question that a person is deprived of his liberty when he is arrested, and also when he is imprisoned. ! :eyer v. Hebraska, 020 U.S. -56, -55, /- S.3t. 20,, 2. 1.Gd. *6/0" #here is no question that freedom from arrest, freedom from imprisonment, except through due process are rights =implicit in the concept of ordered liberty>, and guaranteed by the (ourteenth ;mendment against invasion by the State. #here is no question that an arrest by State officers without warrant, without probable cause, not with a purpose of enforcing the law, but with an ulterior motive, is an arrest without due process. Imprisonment by said officers pursuant to such arrest is likewise without due process. &hen acting under =color of law> in accomplishing the deprivations above stated, the officers have accomplished a violation of Section /0 U.S.3.;. E *5+-.

$$(H0.. #hat the ulterior motive was punishment for the exercise by plaintiff of the right of free speech we notice, but do not consider.

;ere? +. Lede"!a, 401 U.S. 82, 91 S.Ct. #74, 27 L.Ed.2d 701 $U.S.La.,-e8 23, 1971' ;ction by operators of newsstand seeking a udgment declaring 1ouisiana obscenity statute unconstitutional and seeking in unctive relief. #he three' udge 8istrict 3ourt, -6/ (.Supp. 220, entered udgment decreeing return of seiFed materials and their suppression as evidence, denied in unctive relief, and ad udged parish ordinance unconstitutional, and certiorari was granted. #he Supreme 3ourt, :r. <ustice %lack, held that where there was nothing in record to suggest that 1ouisiana officials undertook prosecutions under obscenity statute other than in a good'faith attempt to enforce 1ouisianaLs criminal laws, three' udge federal court improperly intruded into StateLs criminal processes by entering order suppressing evidence in pending State prosecution and directing return of all seiFed materials. <udgment reversed in part, vacated and case remanded with instructions in part. :r. <ustice Stewart filed concurring opinion in which :r. <ustice %lackmun oined. :r. <ustice 8ouglas dissented in part and filed opinion. :r. <ustice %rennan concurred in part and dissented in part and filed opinion in which :r. <ustice &hite and :r. <ustice :arshall oined. 021 -edera/ Court" 1702 501 *.6% (ederal 3ourts *.6%?II Supreme 3ourt *.6%?II!G" 4eview of 8ecisions of State 3ourts *.6%k,6* k. In Ceneral. :ost 3ited 3ases !(ormerly *62k-5/!*"" @a8ea" Corpu" 197 448.1 *5. Habeas 3orpus *5.II Crounds for 4elief7 Illegality of 4estraint *5.II!;" Cround and Hature of 4estraint

*5.k//+ 1awful 8etention7 ?alid or Grrorless <udgment or Drder7 3onviction *5.k//+.* k. In Ceneral. :ost 3ited 3ases !(ormerly *5.k//+, *5.k/,.*!*"" )ropriety of arrests and admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals, sub ect to review by certiorari or appeal in the Supreme 3ourt or, in the proper case, on federal habeas corpus. 031 Court" 10# 508$7' *62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases Dnly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction, and perhaps in other extraordinary circumstances where irreparable in ury can be shown, is federal in unctive relief against pending state prosecutions appropriate. 041 Court" 10# 508$7' *62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases &here there was nothing in record to suggest that 1ouisiana officials undertook prosecutions under obscenity statute other than in a good'faith attempt to enforce 1ouisianaLs criminal laws, three' udge federal court improperly intruded into StateLs criminal processes by entering order suppressing evidence in pending State prosecution and directing return of all seiFed materials. 1S;'4.S. */@*62. 051 3e5/arator4 .udg!ent 118A 27# **+; 8eclaratory <udgment **+;III )roceedings **+;III!%" <urisdiction and ?enue **+;k0.2 k. 3oncurrent and 3onflicting <urisdiction. :ost 3ited 3ases Interference with pending state criminal prosecutions by declaratory udgments is sub ect to the same restrictions curbing federal interference by in unction. Ho. +-, %yrne v. Karalexis, /6* U.S. 0*2, 5* S.3t. ..., 0. 1.Gd.0d .507 and Ho. /*, 8yson v. Stein, /6* U.S. 066, 5* S.3t. .25, 0. 1.Gd.0d .+*, in which we have determined when it is appropriate for a federal court to intervene in the administration of a StateLs criminal laws, the disposition of this case should not be difficult. I M*N 1edesma and the other appellees operated a newsstand in the )arish of St. %ernard, 1ouisiana, where they displayed for sale allegedly obscene magaFines, books, and playing cards. ;s a result of this activity, appellees were charged in four informations filed in state court with violations of 1ouisiana statute, 1a.4ev.Stat.;nn. s */'*62 !Supp.*5.6", and St. %ernard )arish Drdinance 0*'26. ;fter the state court proceedings had commenced by the

filing of the informations, appellees instituted the instant suit in the United States 8istrict 3ourt for the Gastern 8istrict of 1ouisiana, Hew Drleans 8ivision. Since the appellees sought a udgment declaring a state statute of statewide application unconstitutional, together with an in unction against pending or future prosecutions under the statute, a three' udge court was convened. #hat court held the 1ouisiana statute constitutional on its face, but ruled that the arrests of appellees and the seiFure of the allegedly obscene materials were invalid for lack of a prior adversary hearing on the character of the seiFed materials. $$;lthough the three' udge court declined to issue an in unction against the pending (84 or any future prosecutions, it did enter a suppression order and require the return of all the seiFed material to the appellees. -6/ (.Supp. 220, 22.'2.6 !*525". #he local district attorney and other law enforcement officers appealed and we set the case for argument but postponed the question of urisdiction to the hearing on the merits. -55 U.S. 50/, 56 S.3t. 00-/, 02 1.Gd.0d .56 !*5.6".(H* (H*. Under 0+ U.S.3. s *0,- an aggrieved party in any civil action required to be heard and determined by a district court of three udges =may appeal to the Supreme 3ourt from an order granting or denying $ $ $ an interlocutory or permanent in unction.> #he orders directing the suppression of evidence and the return of the seiFed material were in unctive orders against the appellants. #hus, we have urisdiction to review those orders. M0NM-NM/N It is difficult to imagine a more disruptive interference with the operation of the state criminal process short of an in unction against all state proceedings. Gven the three' udge court recogniFed that its udgment would effectively stifle the then'pending state criminal prosecution. =In view of our holding that the arrests and seiFures in these cases are invalid for want of a prior adversary udicial determination of obscenity, which holding requires suppression and return of the seiFed materials, the prosecutions should be effectively terminated.> -6/ (.Supp., at 2.6. !Gmphasis added." :oreover, the 8istrict 3ourt retained urisdiction =for the purposes of hereafter entering any orders necessary to enforce> its view of the proper procedures in the then'pending state obscenity prosecution. ;ccording to our holding in Oounger v. Harris, supra, such federal interference with a state prosecution is improper. #he propriety of arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals, see (85Stefanelli v. :inard, -/0 U.S. **., .0 S.3t. **+, 52 1.Gd. *-+ !*5,*", sub ect, of course, to review by certiorari or appeal in this ((#77 3ourt or, in a proper case, on federal habeas corpus. Here 1edesma was free to present his federal constitutional claims concerning arrest and seiFure of materials or other matters to the 1ouisiana courts in the manner permitted in that State. Dnly in cases of proven harassment or $$prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable in ury can be shown is federal in unctive relief against pending state prosecutions appropriate. See Oounger v. Harris, supra7 Gx parte Ooung, 065 U.S. *0-, 0+ S.3t. //*, ,0 1.Gd. .*/ !*56+". #here is nothing in the record before us to suggest that 1ouisiana officials undertook these prosecutions other than in a good'faith attempt to enforce the StateLs criminal laws. &e therefore hold that the three' udge court improperly intruded into the StateLs own criminal process and reverse its orders suppressing evidence in the pending state prosecution and directing the return of all seiFed materials. II M,N ;fter crippling 1ouisianaLs ability to enforce its criminal statute against 1edesma, the three' udge court expressed the view that the )arish of St. %ernard Drdinance 0*'26 was invalid. ;lthough the court below recogniFed that =it is not the function of a three' udge federal district court to determine the constitutionality or en oin the enforcement of a local ordinance,> the court nevertheless seiFed the =opportunity to express its views on the constitutionality of the ordinance.> -6/ (.Supp. 220, 2.6 n. -* !*525". <udge %oyle, the 8istrict <udge who initially referred the action to the three' udge court, adopted that courtLs view and declared the parish ordinance invalid. #here is considerable question concerning (8# the propriety of issuing a declaratory udgment against a criminal law in the circumstances of this case. (H0

(H0. ;t the time the instant federal court suit was filed, there was pending in 1ouisiana state court a criminal prosecution under the parish ordinance. In Samuels v. :ackell, supra, we held that interference with pending state criminal prosecutions by declaratory udgments is sub ect to the same restrictions curbing federal interference by in unction. /6* U.S., at .-, 5* S.3t., at .2+. ;s indicated above, there are no facts present in this record to show that appellees would suffer irreparable in ury of the kind necessary to ustify federal in unctive interference with the state criminal processes. %&t5)u! +. -o"ter, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 $U.S.-/a.,.un 19, 1972' 3omplaint for in unctive and declaratory relief wherein plaintiff alleged that actions of state udicial and law enforcement officials in closing down his bookstore as a public nuisance were depriving him of rights protected by (irst and (ourteenth ;mendments. ; single federal district udge issued temporary restraining orders, and a three' udge court was thereafter convened. ;fter a hearing, the three' udge 8istrict 3ourt, -*, (.Supp. *-+., dissolved temporary restraining orders and refused to en oin state court proceeding on ground that it was without power to do so under anti'in unction statute, and plaintiff brought a direct appeal. #he Supreme 3ourt, :r. <ustice Stewart, held that provision of 3ivil 4ights ;ct authoriFing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by 3onstitution is within =expressly authoriFed> exception of federal anti' in unction statute prohibiting a federal court from en oining a state court proceeding except as expressly authoriFed by ;ct of 3ongress. 4eversed and remanded. 011 Court" 10# 508$1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!*" k. In Ceneral. :ost 3ited 3ases (ederal anti'in unction statute imposes an absolute ban on issuance of a federal in unction against a pending state court proceeding in absence of one of recogniFed exceptions. 0+ U.S.3.;. E 00+-. 021 Court" 10# 508$1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!*" k. In Ceneral. :ost 3ited 3ases !(ormerly *62k+!*"" Hational policy forbids federal courts to stay or en oin pending state court proceedings except under special circumstances. 0+ U.S.3.;. E 00+-. 031 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings

*62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases #here is a fundamental policy against federal interference with state criminal prosecutions. 0+ U.S.3.;. E 00+-. 041 <n=un5t&on 212 85$2'

0*0 In unction 0*0II Sub ects of )rotection and 4elief 0*0II!G" )ublic Dfficers and Gntities 0*0k+, Gnforcement of Statutes, Drdinances, or Dther 4egulations 0*0k+,!0" k. Dn Cround of Invalidity. :ost 3ited 3ases !(ormerly *62k020./!,"" Gven possible unconstitutionality of a state statute on its face does not in itself ustify federal in unction against good'faith attempts to enforce it. 0+ U.S.3.;. E 00+-. 051 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases (ederal in unctive intervention in a pending state court prosecution is ustified in certain exceptional circumstances' $$where irreparable in ury is both great and immediate, where state law is flagrantly and patently violative of express constitutional prohibitions, or $$where there is a showing of bad faith, harassment, or other unusual circumstances that would call for equitable relief. 0+ U.S.3.;. E 00+-. 0#1 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases Dnly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable in ury can be shown is federal in unctive relief against pending state prosecutions appropriate. 0+ U.S.3.;. E 00+-. 071 Court" 10# 508$2.1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!0.*" k. In Ceneral. :ost 3ited 3ases !(ormerly *62k,6+!0"" (ederal courts are empowered to en oin state court proceedings, despite anti'in unction statute, in carrying out will of 3ongress under legislation $$!*" providing for removal of litigation from state to federal courts, !0" limiting liability of shipowners, !-" providing for federal interpleader actions, !/" conferring federal urisdiction over farm

mortgages, !," governing federal habeas corpus proceedings, and !2" providing for control of prices. %ankr.;ct, E .,, sub. s!0", ** U.S.3.;. E 06-!s" !0"7 0+ U.S.3.;. EE *//*'*/,6, *//2!e", 00,*, 00+-, 0-2*7 /2 U.S.3.;. E *+,. 081 Court" 10# 508$2.1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!0.*" k. In Ceneral. :ost 3ited 3ases !(ormerly *62k,6+!0"" In addition to exceptions to anti'in unction statute found to be embodied in various acts of 3ongress, $$other IimpliedJ exceptions to blanket prohibition of anti'in unction statute are recogniFed, $$one being an Iin remJ exception, allowing a federal court to en oin a state court proceeding in order to protect its urisdiction of a res over which it had first acquired urisdiction, $$another being a IrelitigationJ exception, permitting a federal court to en oin relitigation in a state court of issues already decided in federal litigation , and a third exception permitting a federal in unction of state court proceedings when plaintiff in federal court is United States itself, or a federal agency asserting superior federal interests. 0+ U.S.3.;. E 00+-. 091 Court" 10# 508$1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!*" k. In Ceneral. :ost 3ited 3ases In order to qualify under Iexpressly authoriFedJ exception of anti'in unction statute, a federal law need not contain an express reference to that statute, nor need it expressly authoriFe an in unction of a state court proceeding, $$but it must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, $$which could be frustrated if federal court were not empowered to en oin state court proceeding. 0+ U.S.3.;. E 00+-. 0101 Court" 10# 508$1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!*" k. In Ceneral. :ost 3ited 3ases #o come within exception of anti'in unction statute, it is not required that an act of 3ongress, on its face and in every one of its provisions, be totally incompatible with prohibition of anti'in unction statute7 rather, test is whether act of 3ongress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by stay of a state court proceeding. 0+ U.S.3.;. E 00+-. 0111 C&+&/ R&g)t" 78 1004

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*660 3onstitutional and Statutory )rovisions .+k*66/ k. )urpose and 3onstruction in Ceneral. :ost 3ited 3ases !(ormerly .+k*52.*, .+k*52, .+k*-.,!*""

C&+&/ R&g)t" 78

1325

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-0- 3olor of 1aw .+k*-0, k. State or #erritorial ;ction, or Individual or )rivate ;ction, in Ceneral. :ost 3ited 3ases !(ormerly .+k*52.*, .+k*52, .+k*-.,!*"" $$)rovision of 3ivil 4ights ;ct authoriFing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by 3onstitution was intended to enforce provisions of (ourteenth ;mendment against state action, whether that action be executive, legislative, or udicial. /0 U.S.3.;. E *5+-7 U.S.3.;.3onst. ;mend. */. 0121 C&+&/ R&g)t" 78 1004

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*660 3onstitutional and Statutory )rovisions .+k*66/ k. )urpose and 3onstruction in Ceneral. :ost 3ited 3ases !(ormerly .+k*52.*, .+k*52, .+k*-.,!*"" In enacting provision of 3ivil 4ights ;ct authoriFing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by 3onstitution, 3ongress conceived that it was altering relationship between states and the nation with respect to protection of federally created rights7 it was concerned that state instrumentalities could not protect those rights7 it realiFed that state officers might, in fact, be antipathetic to vindication of those rights7 and it believed that these failings extended to state courts. /0 U.S.3.;. E *5+-. 0131 C&+&/ R&g)t" 78 1004

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*660 3onstitutional and Statutory )rovisions .+k*66/ k. )urpose and 3onstruction in Ceneral. :ost 3ited 3ases !(ormerly .+k*52.*, .+k*52, .+k*-.,!*"" $$)urpose of provision of 3ivil 4ights ;ct authoriFing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by 3onstitution is to interpose federal courts between the states and the people, as guardians of the peopleLs federal rights, and to protect the people from unconstitutional action under color of state law, $$whether that action be executive, legislative or udicial. /0 U.S.3.;. E *5+-. 0141 Court" 10# 508$1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!*" k. In Ceneral. :ost 3ited 3ases $$%y enacting statute expressly authoriFing a Isuit in equityJ as one of means of redressing deprivation under color of state law of any rights, privileges, or immunities secured by 3onstitution, $$3ongress authoriFed federal courts to issue in unctions against a state court proceeding in order to prevent great, immediate, and irreparable loss of a personLs constitutional rights. 0+ U.S.3.;. E 00+-7 /0 U.S.3.;. E *5+-. 0151 Court" 10# 508$2.1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!0.*" k. In Ceneral. :ost 3ited 3ases !(ormerly *62k,6+!0"" $$)rovision of 3ivil 4ights ;ct authoriFing a suit in equity to redress deprivation under color of state law or any rights, privileges, or immunities secured by 3onstitution is within Iexpressly authoriFedJ exception of federal anti' in unction statute prohibiting a federal court from en oining a state court proceeding except as expressly authoriFed by act of 3ongress. 0+ U.S.3.;. E 00+-7 /0 U.S.3.;. E *5+-. 01#1 Court" 10# 508$2.1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!0.*" k. In Ceneral. :ost 3ited 3ases !(ormerly *62k,6+!0"" In concluding that statute governing deprivation of civil rights fell within Iexpressly authoriFedJ exception of federal anti'in unction statute prohibiting a federal court from en oining a state court proceeding except as expressly authoriFed by act of 3ongress, United States Supreme 3ourt was not questioning or qualifying in any way principles of equity, comity, and federalism that must restrain a federal court when asked to en oin a state court proceeding. 0+ U.S.3.;. E 00+-7 /0 U.S.3.;. E *5+-. 0171 Court" 10# 508$2.1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!0.*" k. In Ceneral. :ost 3ited 3ases !(ormerly *62k,6+!0"" $$8istrict court was in error in holding that, because of anti'in unction statute, it was absolutely without power in action brought under statute governing deprivation of civil rights to en oin a proceeding pending in a state court under any circumstances whatsoever. 0+ U.S.3.;. E 00+-7 /0 U.S.3.;. E *5+-. #he prosecuting attorney of %ay 3ounty, (lorida, brought a proceeding in a (lorida court to close down the appellantLs bookstore as a public nuisance under the claimed authority of (lorida law. #he state court entered a preliminary order prohibiting continued operation of the bookstore. ;fter further inconclusive proceedings in the state courts, the appellant filed a complaint in the United States 8istrict 3ourt for the Horthern 8istrict of (lorida, alleging that the actions of the state udicial and law enforcement officials were depriving him of rights protected by the (irst and (ourteenth ;mendments. 4elying upon /0 U.S.3. s *5+-.(H, he asked for in unctive and declaratory relief against the state court proceedings, on the ground that (lorida laws were being unconstitutionally applied by the state court so as to cause him great and irreparable harm. ; single federal district udge issued temporary restraining orders, and a three' udge court was convened pursuant to 0+ U.S.3. ss 00+* and 00+/. ;fter a hearing,

the three' udge court dissolved the temporary restraining orders and refused to en oin the state court proceeding, holding that the =in unctive relief sought here (228 as to the proceedings pending in the (lorida courts does not come under any of the exceptions set forth in Section 00+-. It is not expressly authoriFed by ;ct of 3ongress, it is not necessary in the aid of this courtLs urisdiction and it is not sought in order to protect or effectuate any udgment of this court.> -*, (.Supp. *-+., *-+5. ;n appeal was brought directly here under 0+ U.S.3. s *0,-,(H2 and we noted probable urisdiction. ((2155/60 U.S. 5/*, 5* S.3t. *2*0, 05 1.Gd.0d *65. (H,. (ederal urisdiction was based upon 0+ U.S.3. s *-/-!-". #he statute states in relevant part@ =#he district courts shall have original urisdiction of any civil action authoriFed by law to be commenced by any person@ =!-" #o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the 3onstitution of the United States or by any ;ct of 3ongress providing for equal rights of citiFens or of all persons within the urisdiction of the United States . . .> (H2. #he statute provides@ =Gxcept as otherwise provided by law, any party may appeal to the Supreme 3ourt from an order granting or denying, after notice and hearing, an interlocutory or permanent in unction in any civil action, suit or proceeding required by any ;ct of 3ongress to be heard and determined by a district court of three udges.> II M*N In denying in unctive relief, the 8istrict 3ourt relied on this 3ourtLs decision in ;tlantic 3oast 1ine 4. 3o. v. %rotherhood of 1ocomotive Gngineers, -5+ U.S. 0+*, 56 S.3t. *.-5, 02 1.Gd.0d 0-/. #he ;tlantic 3oast 1ine case did not deal with the =expressly authoriFed> exception of the anti'in unction statute, (H. but the 3ourtLs opinion in that case does bring into sharp focus the critical importance of the question now before us. (or in that case we expressly re ected he view that the anti'in unction statute merely states a flexible doctrine of comity,(H+ and made clear that the statute imposes an absolute ban upon the issuance of a federal in unction against a pending (229 state court proceeding, in the absence of one of the recogniFed exceptions@ (H.. ;t issue were the other two exceptions of the anti'in unction statute@ =where necessary in aid of it urisdiction, or to protect or effectuate its udgments.> ;tlantic 3oast 1ine 4. 3o. v. %rotherhood of 1ocomotive Gngineers, -5+ U.S. 0+*, 0++, 56 S.3t. *.-5, *.//, 02 1.Gd.0d 0-/. (H+. See (irst Hational %ank 9 #rust 3o. of 4acine v. ?illage of Skokie, . 3ir., *.- (.0d *7 %aines, --. (.0d, at ,5-. See also #aylor 9 &illis, #he )ower of (ederal 3ourt to Gn oin )roceedings in State 3ourts, /0 Oale 1.<. **25, **5/ !*5--". =Dn its face the present ;ct is an absolute prohibition against en oining state court proceedings, unless the in unction falls within one of three specifically defined exceptions. #he respondents here have intimated that the ;ct only establishes a =principle of comity,> not a binding rule on the power of the federal courts. #he argument implies that in certain circumstances a federal court may en oin state court proceedings even if that action cannot be ustified by any of the three exceptions. &e cannot accept any such contention. . . . !&e" hold that any in unction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to s 00+- if it is to be upheld. . ..L -5+ U.S., at 0+2'0+., 56 S.3t., at *.//. It follows, in the present context, that if /0 U.S.3. s *5+- is not within the =expressly authoriFed> exception of the anti'in unction statute, then a federal equity court is wholly without power to grant any relief in a s *5+- suit seeking to stay a state court proceeding. In short, if a s *5+- action is not an =expressly authoriFed> statutory exception, the

anti'in unction law absolutely prohibits in such an action all federal equitable intervention in a pending state court proceeding, whether civil or criminal, and regardless of how extraordinary the particular circumstances may be. M0N 1ast #erm, in Oounger v. Harris, /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225, and its companion cases, (H5 the 3ourt dealt at length with the sub ect of federal udicial intervention in pending (230 state criminal prosecutions. In Oounger a three' udge federal district court in a s *5+- action had en oined a criminal prosecution pending in a 3alifornia court. In asking us to reverse that udgment, the appellant argued that the in unction was in violation of the federal anti'in unction statute. /6* U.S., at /6, 5* S.3t., at ./+. %ut the 3ourt carefully eschewed any reliance on the statute in reversing the udgment, basing its decision instead upon what the 3ourt called =Dur (ederalism>'upon =the national policy forbidding federal courts to stay or en oin pending state court proceedings except under special circumstances.> /6* U.S., at /*, //, 5* S.3t., at ./5, .,6. (H5. Samuels v. :ackell, /6* U.S. 22, 5* S.3t. .2/, 0. 1.Gd.0d 2++7 %oyle v. 1andry, /6* U.S. .., 5* S.3t. .,+, 0. 1.Gd.0d 2527 )ereF v. 1edesma, /6* U.S. +0, 5* S.3t. 2./, 0. 1.Gd.0d .6*7 8yson v. Stein, /6* U.S. 066, 5* S.3t. .25, 0. 1.Gd.0d .+*7 %yrne v. Karalexis, /6* U.S. 0*2, 5* S.3t. ..., 0. 1.Gd.0d .50. ((215# M-NM/NM,NM2N In Oounger, this 3ourt emphatically reaffirmed =the fundamental policy against federal interference with state criminal prosecutions.> /6* U.S., at /2, 5* S.3t., at .,*. It made clear that even =the possible unconstitutionality of a statute =on its face> does not in itself ustify an in unction against good'faith attempts to enforce it.L /6* U.S., at ,/, 5* S.3t., at .,,. $$;t the same time, however, the 3ourt clearly left room for federal in unctive intervention in a pending state court prosecution in certain exceptional circumstances'where irreparable in ury is =both great and immediate,> /6* U.S., at /2, 5* S.3t., at .,*, where the state law is Iflagrantly and patently violative of express constitutional prohibitions,J /6* U.S., at ,-, 5* S.3t., at .,,, or where there is a showing of $$=bad faith, $$harassment, or . . . other unusual circumstances that would call for equitable relief.> /6* U.S., at ,/, 5* S.3t., at .,,. In the companion case of )ereF v. 1edesma, /6* U.S. +0, 5* S.3t. 2./, 0. 1.Gd.0d .6*, the 3ourt said that =!o"nly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable in ury can be shown is federal in unctive relief against pending (231 state prosecutions appropriate.> /6* U.S., at +,, 5* S.3t., at 2... See also 8yson v. Stein, /6* U.S. 066, 06-, 5* S.3t. .25, ..*, 0. 1.Gd.0d .+*. %&t5)u! +. -o"ter, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 $U.S.-/a. .un 19, 1972' lists the special circu stances for in#unctions, and that co plaint for declaratory relief, da ages under '2 (.).*. $983 is a cause of action which allows an in#unction. )howing of !ad faith, harass ent, or other unusual circu stances that would call for e+uita!le relief. And ,n addition to

e-ceptions to anti.in#unction statute found to !e e !odied in various acts of *ongress, **other /i plied0 e-ceptions to !lan"et prohi!ition of anti.in#unction statute are recogni1ed, **one !eing an /in re 0 e-ception, allowing a federal court to en#oin a state court proceeding in order to protect its #urisdiction of a res over which it had first ac+uired #urisdiction, **another !eing a /relitigation0 e-ception, per itting a federal court to en#oin relitigation in a state court of issues already decided in federal litigation, and a third e-ception per itting a federal in#unction of state court proceedings when plaintiff in federal court is (nited )tates itself, or a federal agency asserting superior federal interests. 28 (.).*.A. 2 2283.

3omplaint for in unctive and declaratory relief wherein plaintiff alleged that actions of state udicial and law enforcement officials in closing down his bookstore as a public nuisance were depriving him of rights protected by (irst and (ourteenth ;mendments. ; single federal district udge issued temporary restraining orders, and a three' udge court was thereafter convened. ;fter a hearing, the three' udge 8istrict 3ourt, -*, (.Supp. *-+., dissolved temporary restraining orders and refused to en oin state court proceeding on ground that it was without power to do so under anti'in unction statute, and plaintiff brought a direct appeal. #he Supreme 3ourt, :r. <ustice Stewart, held that provision of 3ivil 4ights ;ct authoriFing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by 3onstitution is within =expressly authoriFed> exception of federal anti' in unction statute prohibiting a federal court from en oining a state court proceeding except as expressly authoriFed by ;ct of 3ongress. 4eversed and remanded. 011 Court" 10# 508$1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!*" k. In Ceneral. :ost 3ited 3ases (ederal anti'in unction statute imposes an absolute ban on issuance of a federal in unction against a pending state court proceeding in absence of one of recogniFed exceptions. 0+ U.S.3.;. E 00+-. 021 Court" 10# 508$1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!*" k. In Ceneral. :ost 3ited 3ases !(ormerly *62k+!*"" Hational policy forbids federal courts to stay or en oin pending state court proceedings except under special circumstances. 0+ U.S.3.;. E 00+-. 031 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases #here is a fundamental policy against federal interference with state criminal prosecutions. 0+ U.S.3.;. E 00+-. 041 <n=un5t&on 212 85$2'

0*0 In unction 0*0II Sub ects of )rotection and 4elief 0*0II!G" )ublic Dfficers and Gntities

0*0k+, Gnforcement of Statutes, Drdinances, or Dther 4egulations 0*0k+,!0" k. Dn Cround of Invalidity. :ost 3ited 3ases !(ormerly *62k020./!,"" Gven possible unconstitutionality of a state statute on its face does not in itself ustify federal in unction against good'faith attempts to enforce it. 0+ U.S.3.;. E 00+-. 051 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases (ederal in unctive intervention in a pending state court prosecution is ustified in certain exceptional circumstances' where irreparable in ury is both great and immediate, where state law is flagrantly and patently violative of express constitutional prohibitions, or where there is a showing of bad faith, harassment, or other unusual circumstances that would call for equitable relief. 0+ U.S.3.;. E 00+-. equitable relief. 0+ U.S.3.;. E 00+-. 0#1 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases Dnly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable in ury can be shown is federal in unctive relief against pending state prosecutions appropriate. 0+ U.S.3.;. E 00+-. 071 Court" 10# 508$2.1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!0.*" k. In Ceneral. :ost 3ited 3ases !(ormerly *62k,6+!0"" (ederal courts are empowered to en oin state court proceedings, despite anti'in unction statute, in carrying out will of 3ongress under legislation $$!*" providing for removal of litigation from state to federal courts, !0" limiting liability of shipowners, !-" providing for federal interpleader actions, !/" conferring federal urisdiction over farm mortgages, !," governing federal habeas corpus proceedings, and !2" providing for control of prices. %ankr.;ct, E .,, sub. s!0", ** U.S.3.;. E 06-!s" !0"7 0+ U.S.3.;. EE *//*'*/,6, *//2!e", 00,*, 00+-, 0-2*7 /2 U.S.3.;. E *+,. 081 Court" 10# 508$2.1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction

*62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!0.*" k. In Ceneral. :ost 3ited 3ases !(ormerly *62k,6+!0"" In addition to exceptions to anti'in unction statute found to be embodied in various acts of 3ongress, $$other IimpliedJ exceptions to blanket prohibition of anti'in unction statute are recogniFed, $$one being an Iin remJ exception, allowing a federal court to en oin a state court proceeding in order to protect its urisdiction of a res over which it had first acquired urisdiction, $$another being a IrelitigationJ exception, permitting a federal court to en oin relitigation in a state court of issues already decided in federal litigation , and a third exception permitting a federal in unction of state court proceedings when plaintiff in federal court is United States itself, or a federal agency asserting superior federal interests. 0+ U.S.3.;. E 00+-. 091 Court" 10# 508$1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!*" k. In Ceneral. :ost 3ited 3ases In order to qualify under Iexpressly authoriFedJ exception of anti'in unction statute, a federal law need not contain an express reference to that statute, nor need it expressly authoriFe an in unction of a state court proceeding, $$but it must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, $$which could be frustrated if federal court were not empowered to en oin state court proceeding. 0+ U.S.3.;. E 00+-. 0101 Court" 10# 508$1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!*" k. In Ceneral. :ost 3ited 3ases #o come within exception of anti'in unction statute, it is not required that an act of 3ongress, on its face and in every one of its provisions, be totally incompatible with prohibition of anti'in unction statute7 rather, test is whether act of 3ongress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by stay of a state court proceeding. 0+ U.S.3.;. E 00+-. 0111 C&+&/ R&g)t" 78 1004

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*660 3onstitutional and Statutory )rovisions .+k*66/ k. )urpose and 3onstruction in Ceneral. :ost 3ited 3ases !(ormerly .+k*52.*, .+k*52, .+k*-.,!*"" C&+&/ R&g)t" 78 1325

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-0- 3olor of 1aw .+k*-0, k. State or #erritorial ;ction, or Individual or )rivate ;ction, in Ceneral. :ost 3ited 3ases

!(ormerly .+k*52.*, .+k*52, .+k*-.,!*"" )rovision of 3ivil 4ights ;ct authoriFing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by 3onstitution was intended to enforce provisions of (ourteenth ;mendment against state action, whether that action be executive, legislative, or udicial. /0 U.S.3.;. E *5+-7 U.S.3.;.3onst. ;mend. */. 0121 C&+&/ R&g)t" 78 1004

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*660 3onstitutional and Statutory )rovisions .+k*66/ k. )urpose and 3onstruction in Ceneral. :ost 3ited 3ases !(ormerly .+k*52.*, .+k*52, .+k*-.,!*"" In enacting provision of 3ivil 4ights ;ct authoriFing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by 3onstitution, 3ongress conceived that it was altering relationship between states and the nation with respect to protection of federally created rights7 it was concerned that state instrumentalities could not protect those rights7 it realiFed that state officers might, in fact, be antipathetic to vindication of those rights7 and it believed that these failings extended to state courts. /0 U.S.3.;. E *5+-. 0131 C&+&/ R&g)t" 78 1004

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*660 3onstitutional and Statutory )rovisions .+k*66/ k. )urpose and 3onstruction in Ceneral. :ost 3ited 3ases !(ormerly .+k*52.*, .+k*52, .+k*-.,!*"" $$)urpose of provision of 3ivil 4ights ;ct authoriFing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by 3onstitution is to interpose federal courts between the states and the people, as guardians of the peopleLs federal rights, and to protect the people from unconstitutional action under color of state law, whether that action be executive, legislative or udicial. /0 U.S.3.;. E *5+-. 0141 Court" 10# 508$1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!*" k. In Ceneral. :ost 3ited 3ases %y enacting statute expressly authoriFing a Isuit in equityJ as one of means of redressing deprivation under color of state law of any rights, privileges, or immunities secured by 3onstitution, 3ongress authoriFed federal courts to issue in unctions against a state court proceeding in order to prevent great, immediate, and irreparable loss of a personLs constitutional rights. 0+ U.S.3.;. E 00+-7 /0 U.S.3.;. E *5+-. 0151 Court" 10# 508$2.1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!0.*" k. In Ceneral. :ost 3ited 3ases

!(ormerly *62k,6+!0"" )rovision of 3ivil 4ights ;ct authoriFing a suit in equity to redress deprivation under color of state law or any rights, privileges, or immunities secured by 3onstitution is within Iexpressly authoriFedJ exception of federal anti' in unction statute prohibiting a federal court from en oining a state court proceeding except as expressly authoriFed by act of 3ongress. 0+ U.S.3.;. E 00+-7 /0 U.S.3.;. E *5+-. 01#1 Court" 10# 508$2.1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!0.*" k. In Ceneral. :ost 3ited 3ases !(ormerly *62k,6+!0"" In concluding that statute governing deprivation of civil rights fell within Iexpressly authoriFedJ exception of federal anti'in unction statute prohibiting a federal court from en oining a state court proceeding except as expressly authoriFed by act of 3ongress, United States Supreme 3ourt was not questioning or qualifying in any way principles of equity, comity, and federalism that must restrain a federal court when asked to en oin a state court proceeding. 0+ U.S.3.;. E 00+-7 /0 U.S.3.;. E *5+-. 0171 Court" 10# 508$2.1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!0.*" k. In Ceneral. :ost 3ited 3ases !(ormerly *62k,6+!0"" $$8istrict court was in error in holding that, because of anti'in unction statute, it was absolutely without power in action brought under statute governing deprivation of civil rights to en oin a proceeding pending in a state court under any circumstances whatsoever. 0+ U.S.3.;. E 00+-7 /0 U.S.3.;. E *5+-.

$$#itle /0 U.S.3. s *5+-, which authoriFes a suit in equity to redress the deprivation under color of state law =of any rights, privileges, or immunities secured by the 3onstitution . . .,> is within that exception of the federal anti' in unction statute, 0+ U.S.3. s 00+-, which provides that a federal court may not en oin state court proceedings =except as expressly authoriFed by ;ct of 3ongress.> ;nd in this s *5+- action, though the principles of equity, comity, and federalism that must restrain a federal court when asked to en oin a state court proceeding !cf. Oounger v. Harris, /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225, and companion cases" are not questioned, $$the 8istrict 3ourt is held to have erred in holding that the anti'in unction statute absolutely barred its en oining a pending state court proceeding under any circumstances whatsoever. )p. 0*,/'0*20.
-*, (.Supp. *-+., reversed and remanded. 4obert Gugene Smith, ;tlanta, Ca., for appellant. #he prosecuting attorney of %ay 3ounty, (lorida, brought a proceeding in a (lorida court to close down the appellantLs bookstore as a public nuisance under the claimed authority of (lorida law. #he state court entered a preliminary order prohibiting continued operation of the bookstore. ;fter further inconclusive proceedings in the state courts, the appellant filed a complaint in the United States 8istrict 3ourt for the Horthern 8istrict of (lorida, alleging that the actions of the state udicial and law enforcement officials were depriving him of rights protected by

the (irst and (ourteenth ;mendments. 4elying upon /0 U.S.3. s *5+-.(H, he asked for in unctive and declaratory relief against the state court proceedings, on the ground that (lorida laws were being unconstitutionally applied by the state court so as to cause him great and irreparable harm. ; single federal district udge issued temporary restraining orders, and a three' udge court was convened pursuant to 0+ U.S.3. ss 00+* and 00+/. ;fter a hearing, the three' udge court dissolved the temporary restraining orders and refused to en oin the state court proceeding, holding that the =in unctive relief sought here (228 as to the proceedings pending in the (lorida courts does not come under any of the exceptions set forth in Section 00+-. It is not expressly authoriFed by ;ct of 3ongress, it is not necessary in the aid of this courtLs urisdiction and it is not sought in order to protect or effectuate any udgment of this court.> -*, (.Supp. *-+., *-+5. ;n appeal was brought directly here under 0+ U.S.3. s *0,-,(H2 and we noted probable urisdiction. ((2155/60 U.S. 5/*, 5* S.3t. *2*0, 05 1.Gd.0d *65. (H,. (ederal urisdiction was based upon 0+ U.S.3. s *-/-!-". #he statute states in relevant part@ =#he district courts shall have original urisdiction of any civil action authoriFed by law to be commenced by any person@ =!-" #o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the 3onstitution of the United States or by any ;ct of 3ongress providing for equal rights of citiFens or of all persons within the urisdiction of the United States . . .> (H2. #he statute provides@ =Gxcept as otherwise provided by law, any party may appeal to the Supreme 3ourt from an order granting or denying, after notice and hearing, an interlocutory or permanent in unction in any civil action, suit or proceeding required by any ;ct of 3ongress to be heard and determined by a district court of three udges.> II M*N In denying in unctive relief, the 8istrict 3ourt relied on this 3ourtLs decision in ;tlantic 3oast 1ine 4. 3o. v. %rotherhood of 1ocomotive Gngineers, -5+ U.S. 0+*, 56 S.3t. *.-5, 02 1.Gd.0d 0-/. #he ;tlantic 3oast 1ine case did not deal with the =expressly authoriFed> exception of the anti'in unction statute, (H. but the 3ourtLs opinion in that case does bring into sharp focus the critical importance of the question now before us. (or in that case we expressly re ected he view that the anti'in unction statute merely states a flexible doctrine of comity,(H+ and made clear that the statute imposes an absolute ban upon the issuance of a federal in unction against a pending (229 state court proceeding, in the absence of one of the recogniFed exceptions@ (H.. ;t issue were the other two exceptions of the anti'in unction statute@ =where necessary in aid of it urisdiction, or to protect or effectuate its udgments.> ;tlantic 3oast 1ine 4. 3o. v. %rotherhood of 1ocomotive Gngineers, -5+ U.S. 0+*, 0++, 56 S.3t. *.-5, *.//, 02 1.Gd.0d 0-/. (H+. See (irst Hational %ank 9 #rust 3o. of 4acine v. ?illage of Skokie, . 3ir., *.- (.0d *7 %aines, --. (.0d, at ,5-. See also #aylor 9 &illis, #he )ower of (ederal 3ourt to Gn oin )roceedings in State 3ourts, /0 Oale 1.<. **25, **5/ !*5--". =Dn its face the present ;ct is an absolute prohibition against en oining state court proceedings, unless the in unction falls within one of three specifically defined exceptions. #he respondents here have intimated that the ;ct only establishes a =principle of comity,> not a binding rule on the power of the federal courts. #he argument implies that in certain circumstances a federal court may en oin state court proceedings even if that action cannot be ustified by any of the three exceptions. &e cannot accept any such contention. . . . !&e" hold that any in unction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to s 00+- if it is to be upheld. . ..L -5+ U.S., at 0+2'0+., 56 S.3t., at *.//.

It follows, in the present context, that if /0 U.S.3. s *5+- is not within the =expressly authoriFed> exception of the anti'in unction statute, then a federal equity court is wholly without power to grant any relief in a s *5+- suit seeking to stay a state court proceeding. In short, if a s *5+- action is not an =expressly authoriFed> statutory exception, the anti'in unction law absolutely prohibits in such an action all federal equitable intervention in a pending state court proceeding, whether civil or criminal, and regardless of how extraordinary the particular circumstances may be. M0N 1ast #erm, in Oounger v. Harris, /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225, and its companion cases, (H5 the 3ourt dealt at length with the sub ect of federal udicial intervention in pending (230 state criminal prosecutions. In Oounger a three' udge federal district court in a s *5+- action had en oined a criminal prosecution pending in a 3alifornia court. In asking us to reverse that udgment, the appellant argued that the in unction was in violation of the federal anti'in unction statute. /6* U.S., at /6, 5* S.3t., at ./+. %ut the 3ourt carefully eschewed any reliance on the statute in reversing the udgment, basing its decision instead upon what the 3ourt called =Dur (ederalism>'upon =the national policy forbidding federal courts to stay or en oin pending state court proceedings except under special circumstances.> /6* U.S., at /*, //, 5* S.3t., at ./5, .,6. (H5. Samuels v. :ackell, /6* U.S. 22, 5* S.3t. .2/, 0. 1.Gd.0d 2++7 %oyle v. 1andry, /6* U.S. .., 5* S.3t. .,+, 0. 1.Gd.0d 2527 )ereF v. 1edesma, /6* U.S. +0, 5* S.3t. 2./, 0. 1.Gd.0d .6*7 8yson v. Stein, /6* U.S. 066, 5* S.3t. .25, 0. 1.Gd.0d .+*7 %yrne v. Karalexis, /6* U.S. 0*2, 5* S.3t. ..., 0. 1.Gd.0d .50. ((215# M-NM/NM,NM2N In Oounger, this 3ourt emphatically reaffirmed =the fundamental policy against federal interference with state criminal prosecutions.> /6* U.S., at /2, 5* S.3t., at .,*. It made clear that even =the possible unconstitutionality of a statute =on its face> does not in itself ustify an in unction against good'faith attempts to enforce it.L /6* U.S., at ,/, 5* S.3t., at .,,. $$;t the same time, however, the 3ourt clearly left room for federal in unctive intervention in a pending state court prosecution in certain exceptional circumstances'where irreparable in ury is =both great and immediate,> /6* U.S., at /2, 5* S.3t., at .,*, where the state law is Iflagrantly and patently violative of express constitutional prohibitions,J /6* U.S., at ,-, 5* S.3t., at .,,, or where there is a showing of $$=bad faith, $$harassment, or . . . other unusual circumstances that would call for equitable relief.> /6* U.S., at ,/, 5* S.3t., at .,,. In the companion case of )ereF v. 1edesma, /6* U.S. +0, 5* S.3t. 2./, 0. 1.Gd.0d .6*, the 3ourt said that =!o"nly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable in ury can be shown is federal in unctive relief against pending (231 state prosecutions appropriate.> /6* U.S., at +,, 5* S.3t., at 2... See also 8yson v. Stein, /6* U.S. 066, 06-, 5* S.3t. .25, ..*, 0. 1.Gd.0d .+*. M.N 8espite the seemingly uncompromising language of the anti'in unction statute prior to *5/+, the 3ourt soon (234 recogniFed that exceptions must be made to its blanket prohibition if the import and purpose of other ;cts of 3ongress were to be given their intended scope. So it was that, in addition to the bankruptcy law exception that 3ongress explicitly recogniFed in *+./, the 3ourt through the years found that federal courts were empowered to en oin state court proceedings, despite the anti'in unction statute, in carrying out the will ((2158 of 3ongress under at least six other federal laws. #hese covered a broad spectrum of congressional action@ $$!*" legislation providing for removal of litigation from state to federal courts, (H*0 !0" regislation limiting the liability of ship'owners, (H*- !-" legislation providing for federal interpleader actions, (H*/ !/" legislation conferring federal urisdiction over farm mortgages, (H*, !," legislation(235 governing federal habeas corpus proceedings, (H*2 and !2" legislation providing for control of prices.(H*. (H*0. See (rench v. Hay, 00 &all. 0,6, 00 1.Gd. +,.7 Kline v. %urke 3onstruction 3o., 026 U.S. 002, /S.3t. .5, 2. 1.Gd. 002. #he federal removal provisions, both civil and criminal, 0+ U.S.3. ss *//*'*/,6, provide that once a copy of the removal petition is filed with the clerk of the state court, the =State court shall proceed no further unless and until the case is remanded.> 0+ U.S.3. s *//2!e".

(H*-. See )rovidence 9 H.O.S.S. 3o. v. Hill :fg. 3o., *65 U.S. ,.+, - S.3t. -.5, 0. 1.Gd. *6-+. #he ;ct of *+,*, 5 Stat. 2-,, as amended, provides that once a shipowner has deposited with the court an amount equal to the value of his interest in the ship, =all claims and proceedings against the owner with respect to the matter in question shall cease.> /2 U.S.3. s *+,. (H*/. See #reinies v. Sunshine :ining 3o., -6+ U.S. 22, 26 S.3t. //, +/ 1.Gd. +,. #he Interpleader ;ct of *502, // Stat. /*2, as currently written provides that in =any civil action of interpleader . . . a district court may . . . enter its order restraining !all claimants" . . . from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action.> 0+ U.S.3. s 0-2*. (H*,. See Kalb v. (euerstein, -6+ U.S. /--, 26 S.3t. -/-, +/ 1.Gd. -.6. #he (raFier'1emke (arm' :ortgage ;ct, as amended in *5-,, /5 Stat. 5//, provides that in situations to which it is applicable a federal court shall =stay all udicial or official proceedings in any court.> ** U.S.3. s 06-!s"!0" !*5/6 ed.". (H*2. See Gx parte 4oyall, **. U.S. 0/*, 0/+'0/5, 2 S.3t. .-/, .-+'.-5, 02 1.Gd. +2+. #he (ederal Habeas 3orpus ;ct provides that a federal court before which a habeas corpus proceeding is pending may =stay any proceeding against the person detained in any State court . . . for any matter involved in the habeas corpus proceeding.> 0+ U.S.3. s 00,*. (H*.. Section 06,!a" of the Gmergency )rice 3ontrol ;ct of *5/0, ,2 Stat. --, provided that the )rice ;dministrator could request a federal district court to en oin acts that violated or threatened to violate the ;ct. In )orter v. 8icken, -0+ U.S. 0,0, 22 S.3t. *65/, 56 1.Gd. *06-, we held that this authority was broad enough to ustify an in unction to restrain state court proceedings. Id., at 0,,, 22 S.#., at *652. #he Gmergency )rice 3ontrol ;ct was thus considered a congressionally authoriFed exception to the anti' in unction statute. Ibid.7 see also %owles v. &illingham, -0* U.S. ,6-, 2/ S.3t. 2/*, ++ 1.Gd. +50. Section 06,!a" expired in *5/.. ;ct of <uly 0,, *5/2, 26 Stat. 22/. M+N In addition to the exceptions to the anti'in unction statute found to be embodied in these various ;cts of 3ongress, the 3ourt recogniFed other =implied> exceptions to the blanket prohibition of the anti'in unction statute. $$Dne was an =in rem> exception, allowing a federal court to en oin a state court proceeding in order to protect its urisdiction of a res over which it had first acquired urisdiction.(H*+ $$;nother was a =relitigation> exception, permitting a federal court to en oin relitigation in a state court of issues already decided in federal litigation .(H*5 Still a third exception, more recently developed permits a federal in unction of state (23# court proceedings((2159 when the plaintiff in the federal court is the United States itself, or a federal agency asserting =superior federal interests.L(H06 (H*+. See, e.g., #oucey v. Hew Oork 1ife Ins. 3o., -*/ U.S., at *-,'*-2, 20 S.3t., at *//'*/,7 (reeman v. Howe, 0/ How. /,6, *2 1.Gd. ./57 Kline v. %urke 3onstruction 3o., 026 U.S. 002, /- S.3t. .5, 2. 1.Gd.0d 002. (H*5. See, e.g., #oucey, supra, -*/ U.S., at *-.'*/*, 20 S.3t., at */,'*/+7 8ial v. 4eynolds, 52 U.S. -/6, 0/ 1.Gd. 2//7 Supreme #ribe of %en'Hur v. 3auble, 0,, U.S. -,2, /* S.3t. --+, 2, 1.Gd. 2.-. See generally *; <. :oore, (ederal )ractice 0-60'0-** !*52,". (H06. 1eiter :inerals Inc. v. United States, -,0 U.S. 006, .. S.3t. 0+., * 1.Gd.0d 02.7 H14% v. Hash' (inch 3o., /6/ U.S. *-+, 50 S.3t. -.-, -6 1.Gd.0d -0+. In #oucey v. Hew Oork 1ife Ins. 3o., -*/ U.S. **+, 20 S.3t. *-5, +2 1.Gd. *66, the 3ourt in *5/* issued an opinion casting considerable doubt upon the approach to the anti'in unction statute reflected in its previous decisions. #he 3ourtLs opinion expressly disavowed the =relitigation> exception to the statute, and emphasiFed generally the

importance of recogniFing the statuteLs basic directive =of =hands off> by the federal courts in the use of the in unction to stay litigation in a state court.L -*/ U.S., at *-0, 20 S.3t., at */-. #he congressional response to #oucey was the enactment in *5/+ of the anti'in unction statute in its present form in 0+ U.S.3. s 00+-, which, as the 4eviserLs Hote makes evident, served not only to overrule the specific holding of #oucey, (H0* but to restore =the basic law as generally understood and interpreted prior to the #oucey decision.L(H00 (H0*. #he 4eviserLs Hote states in part@ =#he exceptions specifically include the words =to protect or effectuate its udgments,> for lack of which the Supreme 3ourt held that the (ederal courts are without power to en oin relitigation of cases and controversies fully ad udicated by such courts. !See #oucey v. Hew Oork 1ife Insurance 3o., 20 S.3t. *-5, -*/ U.S. **+, +2 1.Gd. *66. ; vigorous dissenting opinion ! 20 S.3t. */+ !-*/ U.S. */*"" notes that at the time of the *5** revision of the <udicial 3ode, the power of the courts . . . of the United States to protect their udgments was unquestioned and that the revisers of that code noted no change and 3ongress intended no change."L H.4.4ep. Ho. -6+, +6th 3ong., *st Sess., ;*+*' *+0 !*5/.". (H00. Ibid. M5NM*6N &e proceed, then, upon the understanding that in determining whether s *5+- comes within the =expressly authoriFed> exception of the anti'in unction statute, the (237 criteria to be applied are those reflected in the 3ourtLs decisions prior to #oucey. (H0- ; review of those decisions makes reasonably clear what the relevant criteria are. In the first place, it is evident that, in order to qualify under the =expressly authoriFed> exception of the anti'in unction statute, a federal law need not contain an express reference to that statute. ;s the 3ourt has said, =no prescribed formula is required7 an authoriFation need not expressly refer to s 00+-.> ;malgamated 3lothing &orkers of ;merica v. 4ichman %ros. 3o., -/+ U.S. ,**, ,*2, ., S.3t. /,0, /,,, 55 1.Gd. 266. Indeed, none of the previously recogniFed statutory exceptions contains any such reference. (H0/ Secondly, a federal law need not expressly authoriFe an in unction of a state court proceeding in order to qualify as an exception. #hree of the six previously recogniFed statutory exceptions contain no such authoriFation. (H0, #hirdly, it is clear that, in order to qualify as an =expressly authoriFed> exception to the anti'in unction statute, an ;ct of 3ongress must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, that could be frustrated if the federal court were not empowered to en oin a state court proceeding. #his is not (238 to say that in order to come within the exception((21#0 an ;ct of 3ongress must, on its face and in every one of its provisions, be totally incompatible with the prohibition of the anti'in unction statute. (H02 #he test, rather, is whether an ;ct of 3ongress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding. See #oucey, supra, -*/ U.S. at *-0'*-/, 20 S.3t. at */-'*//7 Kline v. %urke 3onstruction 3o., 026 U.S. 002, /- S.3t. .5, 2. 1.Gd. 0027 )rovidence 9 H.O.S.S. 3o. v. Hill :fg. 3o., *65 U.S. ,.+, ,55 - S.3t. -.5, -50, 0. 1.Gd. *6-+7 #reinies v. Sunshine :ining 3o., -6+ U.S. 22, .+, 26 S.3t., //, ,6, +/ 1.Gd. +,7 Kalb v. (euerstein, -6+ U.S. /--, 26 S.3t. -/-, +/ 1.Gd. -.67 %owles v. &illingham, -0* U.S. ,6-, 2/ S.3t. 2/*, ++ 1.Gd. +50. (H0-. 3f. ;malgamated 3lothing &orkers of ;merica v. 4ichman %ros. 3o., -/+ U.S. ,**, ,0*, ., S.3t. /,0, /,+, 55 1.Gd. 266 !dissenting opinion". (H0/. See nn. *0, *-, */, *,, *2, and *., supra. gress clearly conceived that it was altering the relationship between the States and the Hation with respect to the protection of federally created rights7 it was concerned that state instrumentalities could not protect those rights7 it realiFed that state officers might, in fact, be antipathetic to the vindication of those rights7 and it believed that these failings extended to the state courts. ?

M*-NM*/NM*,N Section *5+- was thus a product of a vast transformation from the concepts of federalism that had prevailed in the late *+th century when the anti'in unction statute was enacted. #he very purpose of s *5+- was to interpose the federal courts between the States and the people, as guardians of the peopleLs federal rights'to protect the people from unconstitutional action under color of state law, =whether that action be executive, legislative, or udicial.> Gx parte ?irginia, *66 U.S., at -/2, 0, 1.Gd. 2.2. In carrying out that purpose, 3ongress plainly authoriFed the federal courts to issue in unctions in s *5+- actions, by expressly authoriFing a =suit in equity> as one of the means of redress. ;nd this 3ourt long ago recogniFed that federal in unctive relief against a state court proceeding can in some circumstances be essential to prevent great, immediate, and irreparable loss of a personLs constitutional rights. Gx parte Ooung, 065 U.S. *0-, 0+ S.3t. //*, ,0 1.Gd. .*/7 cf. #ruax v. 4aich, 0-5 U.S. --, -2 S.3t. ., 26 1.Gd. *-*7 8ombrowski v. )fister, -+6 U.S. /.5, +, S.3t. ***2, */ 1.Gd.0d 00. $$(or these reasons we conclude that, under the (243 criteria established in our previous decisions construing the anti'in unction statute , s *5+- is an ;ct of 3ongress that falls within the =expressly authoriFed> exception of that law.

3un5an +. ;ere?, 445 -.2d 557 $5t) C&r.$La.' .un 14, 1971'

reprosecution
$$
;&??o/ato +. ;ere?, 524 -.Supp. 914 $E.3.La.,Sep 04, 1981'

3n point.

instructive on da ages in civil rights actions

Glection commissioner brought action seeking a permanent in unction preventing a pending state court prosecution on state voting law charges. #he 8istrict 3ourt, ;rceneaux, <., held that election commissioner was entitled to a permanent in unction preventing pending state court prosecution for voter fraud and to compensatory and punitive damages in view of fact that prosecution was brought in bad faith as $$the result of a conspiracy to harass and retaliate against election commissioner for his opposition to defendantsL political organiFation. <udgment accordingly. 021 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases Gxception to general rule that federal courts should not intervene in pending state criminal prosecutions arises where plaintiff makes a showing of either bad faith or harassment by the state authorities who are pressing the prosecution. 041 C&+&/ R&g)t" 78 1420

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*/*2 &eight and Sufficiency of Gvidence .+k*/06 k. 3riminal 1aw Gnforcement7 )risons. :ost 3ited 3ases !(ormerly .+k0/0!,", .+k*-.*-!-"" Gffect of showing of a bad'faith criminal prosecution is equivalent to a showing of irreparable in ury.

051 C&+&/ R&g)t" 78

1088$5'

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*6++ )olice, Investigative, or 1aw Gnforcement ;ctivities .+k*6++!," k. 3riminal )rosecutions. :ost 3ited 3ases !(ormerly .+k*-/, .+k*-./!/"" $$)rosecution brought under a valid state statute in an attempt to retaliate for a federal plaintiffLs exercise of constitutional rights constitutes Ibad faith prosecution.J 0#1 C&+&/ R&g)t" 78 1088$5'

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*6++ )olice, Investigative, or 1aw Gnforcement ;ctivities .+k*6++!," k. 3riminal )rosecutions. :ost 3ited 3ases !(ormerly .+k*-/, .+k*-./!/"" ; serious state prosecution undertaken for a relatively minor offense, coupled with a selective process arising in an atmosphere of political andTor racial hostility, constitutes Ibad faith prosecution.J 071 C&+&/ R&g)t" 78 1088$5'

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*6++ )olice, Investigative, or 1aw Gnforcement ;ctivities .+k*6++!," k. 3riminal )rosecutions. :ost 3ited 3ases !(ormerly .+k*-/, .+k*-./!/"" State criminal prosecution brought under a valid statute but with no reasonable belief that a conviction will follow constitutes Ibad faith prosecution.J 081 C&+&/ R&g)t" 78 1088$5'

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*6++ )olice, Investigative, or 1aw Gnforcement ;ctivities .+k*6++!," k. 3riminal )rosecutions. :ost 3ited 3ases !(ormerly .+k*-/, .+k*-./!/"" State court prosecution motivated by a desire for personal and political gain, which prosecution evidences some degree of impermissible selectivity even though taken pursuant to a lawful statute, constitutes Ibad faith prosecution.J 091 Con"t&tut&ona/ La* 92 1435

50 3onstitutional 1aw 50P? 4ight to )etition for 4edress of Crievances 50k*/-, k. In Ceneral. :ost 3ited 3ases !(ormerly 50k5*" ;ccess to the courts is protected by the (irst ;mendment right to petition for a redress of grievances. U.S.3.;.3onst.;mend. *. 0101 C&+&/ R&g)t" 78 1420

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*/*2 &eight and Sufficiency of Gvidence .+k*/06 k. 3riminal 1aw Gnforcement7 )risons. :ost 3ited 3ases !(ormerly .+k0/0!,", .+k*-.*-!-"" $$In attempt to prove bad faith prosecution, standard governing requisite showing of unlikeliness of prosecutionLs success is a flexible and realistic one, and $$it need not be proven that prosecution could not possibly result in a conviction. 0111 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases 8emonstration by local election commissioner that state court criminal prosecution for voter fraud was in retaliation for commissionerLs refusal to settle civil case involving same election and that stateLs bringing of criminal prosecution was motivated at least in part by a purpose to so retaliate, together with stateLs failure to show by a preponderance of the evidence that it would have reached the same decision as to whether to prosecute even had the impermissible purpose not been considered, was sufficient to warrant issuance of in unction preventing state court criminal prosecution. 0121 C&+&/ R&g)t" 78 137#$9'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-.0 )rivilege or Immunity7 Cood (aith and )robable 3ause .+k*-.2 Covernment ;gencies and Dfficers .+k*-.2!5" k. ;ttorney Ceneral and )rosecuting ;ttorneys. :ost 3ited 3ases !(ormerly .+k0*/!5", .+k*-.+!2"" 8istrict attorney was immune from damage liability in a suit under Section *5+- of the 3ivil 4ights ;ct alleging bad'faith prosecution since acts complained of were within scope of his duties as district attorney. /0 U.S.3.;. E *5+-. 0131 Con"p&ra54 91 7.5$1'

5* 3onspiracy 5*I 3ivil 1iability 5*I!;" ;cts 3onstituting 3onspiracy and 1iability #herefor 5*k.., 3onspiracy to Interfere with 3ivil 4ights 5*k..,!*" k. In Ceneral. :ost 3ited 3ases !(ormerly 5*k..," 3onspiracies to deprive one of his constitutional rights are actionable under 3ivil 4ights ;ct, and a showing of class'based discrimination is not a prerequisite to liability. /0 U.S.3.;. E *5+-. 0141 C&+&/ R&g)t" 78 .+ 3ivil 4ights 1401

.+III (ederal 4emedies in Ceneral .+k*/66 )resumptions, Inferences, and %urdens of )roof .+k*/6* k. In Ceneral. :ost 3ited 3ases !(ormerly .+k0/6!*", .+k*-.*-!*"" #o sustain a claim under Section *5+- of the 3ivil 4ights ;ct, a plaintiff must show both a deprivation by defendant of a constitutionally secured right and that defendant acted under color of state law. /0 U.S.3.;. E *5+-. 0151 C&+&/ R&g)t" 78 132#$5'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-0- 3olor of 1aw .+k*-02 )articular 3ases and 3ontexts .+k*-02!-" )rivate )ersons or 3orporations, in Ceneral .+k*-02!," k. 3ooperation with State ;ctor. :ost 3ited 3ases !(ormerly .+k*5+!/", .+k*-.,!/"" )rivate persons, conspiring or participating in oint activity with state officials in prohibited conduct, may be sued under Section *5+- of the 3ivil 4ights ;ct, inasmuch as they are deemed to be acting under color of state law. /0 U.S.3.;. E *5+-. 01#1 C&+&/ R&g)t" 78 132#$5'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-0- 3olor of 1aw .+k*-02 )articular 3ases and 3ontexts .+k*-02!-" )rivate )ersons or 3orporations, in Ceneral .+k*-02!," k. 3ooperation with State ;ctor. :ost 3ited 3ases !(ormerly .+k*5+!/", .+k*-.." )rivate individuals may be held liable for damages under Section *5+- of the 3ivil 4ights ;ct even if they have conspired with immune state officials. /0 U.S.3.;. E *5+-. 0171 Con"p&ra54 91 19

5* 3onspiracy 5*I 3ivil 1iability 5*I!%" ;ctions 5*k*5 k. Gvidence. :ost 3ited 3ases 3ircumstantial evidence consisting of private individualsL discussion of case of local election commissioner and charges of voter fraud with district attorney shortly after commissionerLs re ection of offer to settle civil suit arising from same election and involving same individuals, and shortly before filing of information and initiating of state criminal prosecution against election commissioner, supported finding that conspiracy existed between district attorney and said individuals to coerce commissioner into settlement of civil suit. 0181 Con"p&ra54 91 7.5$3'

5* 3onspiracy 5*I 3ivil 1iability 5*I!;" ;cts 3onstituting 3onspiracy and 1iability #herefor 5*k.., 3onspiracy to Interfere with 3ivil 4ights 5*k..,!-" k. 3olor of State 1aw7 State ;ction. :ost 3ited 3ases

!(ormerly 5*k..." #o establish a claim under civil rights conspiracy statute, a plaintiff need not prove that the alleged wrong occurred under color of state law, inasmuch as statute is applicable to private conspiracies. /0 U.S.3.;. E *5+,!-". 0191 C&+&/ R&g)t" 78 14#2

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*/,+ :onetary 4elief in Ceneral .+k*/20 k. Crounds and Sub ects7 3ompensatory 8amages. :ost 3ited 3ases !(ormerly .+k0.*, .+k*-.*.!-", .+k*-.*." 8amages are available under civil rights statute making violation of an individualLs civil rights under color of state law actionable for actions found to have been violative of constitutional rights, which such actions are proved to have caused compensable in ury. /0 U.S.3.;. E *5+-. 0201 C&+&/ R&g)t" 78 14#3

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*/,+ :onetary 4elief in Ceneral .+k*/2- k. :ental Suffering, Gmotional 8istress, Humiliation, or Gmbarrassment. :ost 3ited 3ases !(ormerly .+k0.-, .+k*-.*.!,", .+k*-.*." $$Since the principles of tort damages apply to civil rights actions, an award of compensatory damages may encompass compensation for emotional distress. 0211 Con"p&ra54 91 20

5* 3onspiracy 5*I 3ivil 1iability 5*I!%" ;ctions 5*k06 k. 8amages. :ost 3ited 3ases %ad'faith prosecution brought against local election commissioner on voting fraud charges as the result of a conspiracy to harass and retaliate against commissioner for his opposition to local political organiFation warranted award of A*6,666 compensatory damages and A*6,666 punitive damages. 0221 C&+&/ R&g)t" 78 14#5$1'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*/,+ :onetary 4elief in Ceneral .+k*/2, Gxemplary or )unitive 8amages .+k*/2,!*" k. In Ceneral. :ost 3ited 3ases !(ormerly .+k0.,!*", .+k*-.*.!.", .+k*-.*." )unitive damages are available for violations of those rights secured by Section *5+- of the 3ivil 4ights ;ct. /0 U.S.3.;. E *5+-. 0231 C&+&/ R&g)t" 78 14#5$1'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*/,+ :onetary 4elief in Ceneral

.+k*/2, Gxemplary or )unitive 8amages .+k*/2,!*" k. In Ceneral. :ost 3ited 3ases !(ormerly .+k0.,!*", .+k*-.*.!.", .+k*-.*." ;ward of punitive damages for violations of those rights secured by Section *5+- of the 3ivil 4ights ;ct $$is appropriate where the violation is willful and in gross disregard for the rights of the complaining party . /0 U.S.3.;. E *5+-. ;43GHG;UP, 8istrict <udge. #his action, brought pursuant to /0 U.S.3. ss *5+-, *5+,!0", *5+,!-" and *5+2, came on for trial on :arch 02, *5+*. #he parties submitted post'trial memoranda. Having considered these materials, the testimony and the applicable law, I# IS D48G4G8 that@ *. #he pending state prosecution of plaintiff be permanently en oined7 and, 0. 3ompensatory damages in the amount of A*6,666.66 and punitive damages in the amount of A*6,666.66 are owing to plaintiff from defendants )etrovich and <ur evich, for those violations of plaintiffLs constitutional rights, all as more fully set forth below. Preface )laintiff alleges that his criminal prosecution on state voting law charges, now pending in the #wenty'fifth <udicial 8istrict 3ourt for )laquemines )arish, constitutes a bad faith prosecution by the 8istrict ;ttorney, 1eander )ereF, <r. #his prosecution is the result, plaintiff contends, of a conspiracy between defendant )ereF and the other defendants, in an attempt to harass and retaliate against him for his opposition to the defendantsL political organiFation. 8efendants are also motivated, plaintiff claims, by his refusal to settle, on terms favorable to defendants, an allegedly politically'motivated civil suit for damages filed against him by the defendants. )laintiff seeks an in unction against defendant )ereF, prohibiting plaintiffLs prosecution on the state criminal charges, and damages against the remaining defendants. The Parties *. 8efendant 1eander )ereF, <r. is the 8istrict ;ttorney for the #wenty'(ifth <udicial 8istrict, a position he has held since *526. 8efendants acknowledge that :r. )ereF has been active in )laquemines )arish politics for many years. 0. 8efendant 1uke )etrovich is the 3ommissioner of )ublic Safety for )laquemines )arish, and has held that position since *52*. He is the brother and attorney of an original defendant, :ary )etrovich 4ussell Sinks !since deceased", and a close friend and attorney of defendant 1eander S. <ur evich. -. 1eander S. <ur evich has been an employee of the )laquemines )arish 3ommission 3ouncil since *525, working under the supervision of defendant 1uke )etrovich. He has served on occasion as a )oll 3ommissioner and, on <une 0,, *5.., was a )oll 3ommissioner in )laquemines )arish, &ard -, )recinct 0. /. :ary )etrovich 4ussell Sinks !:s. Sinks", named as an original defendant, died prior to trial of this matter. :s. Sinks worked for the )laquemines )arish 3ommission 3ouncil as a secretary for many years before her death, under the direction of her brother. She had also served as a )arish )oll 3ommissioner and, on <une 0,, *5.., was a )oll 3ommissioner in )laquemines )arish, &ard -, )recinct -. ,. Samuel 3. )iFFolato, the plaintiff, is an independent oilfield contractor and boat owner. He was 3hairman of the %oard of Supervisors of Glections for the )arish of )laquemines and served as a )oll 3ommissioner for Glections on numerous occasions. He sought public office on three occasions'State 4epresentative, 3onstitutional 3onvention

8elegate and 8emocratic Gxecutive 3ommittee member. He founded and was 3hairman of the )laquemines )arish 1oyal 8emocrat DrganiFation, which organiFation was made up of supporters of the Hational 8emocratic )arty. $$His political opposition to :r. 1uke )etrovich has included political (917 speeches and radio broadcasts critical of )etrovich. ;s both parties concede, :r. )iFFolato has been for many years a political adversary of defendant 1eander H. )ereF and his family and their political supporters. Background In Dctober of *5.2, an election was conducted in the (irst 3ongressional 8istrict !consisting of the parishes of )laquemines, St. %ernard and part of Drleans". :r. 4ick #onry won that race, but subsequently resigned amidst charges of vote fraud. ;n offshoot of that disputed election was a libel action filed in the #wenty'(ifth <udicial 8istrict 3ourt by 2+ election commissioners against numerous defendants, including )iFFolato. He, in turn, exerted a counterclaim against plaintiffs and their attorney, 1uke )etrovich. ;mong the plaintiffs were :ary 4ussell Sinks and 1eander <ur evich. #he complaint in the libel action alleged that defendants had published allegations that vote fraud had occurred in )laquemines )arish and that these allegations had libeled all the election officials working in the Dctober election. #he matter was removed to federal court and was pending as this case went to trial. ;s a result of :r. #onryLs resignation, a special primary election was held on <une 0,, *5.. in the (irst 3ongressional 8istrict. In this election, plaintiff was a campaign worker for :r. #onry and was selected by the %oard of Glection 3ommissioners to work as an election commissioner in the primary. He volunteered to work in &ard -, )recinct -, in %uras, 1ouisiana !not his home polling place", because there would not otherwise be a #onry supporter working in that polling place. :s. Sinks had also been assigned to that poll. ;t approximately **@-6 a. m. on election day, a machine in &ard -, )recinct -, was set incorrectly. :argaret Kleinpeter, the wife of one of that precinctLs election commissioners and a registered 4epublican, entered a machine to vote. :rs. Kleinpeter called out from inside the curtain that she could not cast her vote and exited the machine, leaving it ready to register a 8emocratLs vote. She was then directed to a machine set for a 4epublican. ;t this point, there is some conflict in the testimony as to who said what. )iFFolato indicates that :r. Kleinpeter said, IItLs set for a 8emocrat, Sam, you go in and voteJ. Kleinpeter testified that it was )iFFolato who suggested that he, )iFFolato, vote. It is not disputed, however, that plaintiff then entered the machine and cast a vote, despite the fact that he was not registered to vote in that precinct. Upon exiting the machine, )iFFolato indicated that he had made an error in voting in that precinct. Kleinpeter testified that he and )iFFolato realiFed at the same time that a mistake had occurred7 i. e., as )iFFolato exited the machine. ;s Kleinpeter described it@ Oou would have to actually been there. ItLs hard to describe. Oou know, your mind plays tricks on you, or mine does frequently, and it was as if we both got the same ... arrived at the same conclusion at the same time. &e were standing very closely. ;nd it might have been me who did it rather than Sam, and it was very evident to me that when he ... that he did it unintentionally. #hat is, he forgot momentarily that he was not a voter at the precinct and in that ward. Unfortunately, until after he pulled the trigger ... and we both realiFed it almost immediately that he had done it the wrong way. I ust ... it was to me at (918 that time it was ... it wasnLt going to be that big a deal, but it turned out to be. !#ranscript *6-". )iFFolato then immediately announced that he wished to sign an affidavit and :s. Sinks wrote the following on a blank sheet of paper I**@,6 ;.:. 2'0,'.. Samuel <. )iFFolato voted in -'- :achine U *,/.*J. Kleinpeter wrote on the back of the paper Ivoted in error by confusionJ. ;ll the commissioners, including )iFFolato, signed the paper, and it was placed in the election paraphernalia. ;fter this occurrence, :rs. Sinks phoned 1uke )etrovich and told him what happened. #his action was allegedly precipitated by :s. SinksL experiences with the previous election, relative to the allegations of vote fraud.

$$)etrovich came to the poll and, according to plaintiff, accused )iFFolato of vote fraud. )etrovich then left the polling place. 1ater that day, )iFFolato left the %uras poll !&ard -, )recinct -", and went to his home precinct in %oothville !&ard -, )recinct 0" and again cast a vote. He mentioned to several acquaintances that he had, by mistake, voted in %uras. 8efendant <ur evich, a commissioner at the %oothville poll, called defendant Sinks with this information, which :s. Sinks then relayed to )etrovich. 1ater that day, )etrovich prepared a set of typed affidavits for all commissioners, except )iFFolato, to sign. 3ommissioners )elas, Sercovich, Kleinpeter and Sinks signed these affidavits, which stated that )iFFolato had voted in a precinct other than the one in which he was registered and that he had been absent from the poll several times during the day. )etrovich then proceeded to the %oothville poll and asked the commissioners there to sign the affidavit he had prepared, which affidavit stated that )iFFolato had voted in that precinct. 8efendant <ur evich and two other commissioners signed the affidavit. )laquemines 8eputy Sheriff :artineF, who had driven )etrovich to %oothville, prepared a ISupplementary Investigation 4eportJ which recounted his receipt of two complaints from )etrovich concerning )iFFolato voting twice. $$#his report was filed in the office of 8istrict ;ttorney 1eander )ereF. Inasmuch as )iFFolato was present at the %uras poll when )etrovich arrived with the affidavits he was aware that an IinvestigationJ was underway relative to the voting incident. He then called the (ederal %ureau of Investigation !I(.%.I.J" that evening to report the incident and request an investigation. He was, four to five days after this incident, interviewed by (.%.I. agents. Dn the :onday following the Saturday primary, defendants )etrovich and <ur evich and 8eputy :artineF drove to Hew Drleans and met with U.S. ;ttorney Cerald Callinghouse to complain about )iFFolatoLs actions. 3opies of the affidavits were given to Callinghouse and the (.%.I. investigated the matter. Dn <uly *,, *5.., the U.S. ;ttorneyLs Dffice declined to prosecute the matter, finding@ Gven though it is evident that )iFFolato cast two votes during this election, it is unlikely that any criminal intent could be proved. He made no effort to conceal his mistake and there is no evidence to support a finding that he intentionally cast a fraudulent vote or deprived citiFens of their civil rights. (or these reasons, we are closing our files on this matter and request no further investigation. !4pt. of Irving &arshauer, ;sst. U.S. ;tty., <uly *,, *5.., )l. Gx. U -". Gxcept for the <une 0, investigative report of 8eputy :artineF, no further state or local action was taken against )iFFolato relative to this matter for two years. Dn the evening of <une 0*, *5.5, )etrovich called the 8istrict ;ttorney, defendant )ereF, and asked what action that office intended to take in the matter, inasmuch as the two'year prescriptive period was about to run. )ereF told )etrovich to have his clients !Sinks and <ur evich" appear as prosecution witnesses before the <ustice of the )eace, swear out a complaint, and meet with ;ssistant 8istrict ;ttorney :r. (rank (919 Klein. $$#his meeting occurred the next morning, on <une 00, *5.5, and subsequently Klein filed a %ill of Information against )iFFolato for vote fraud, which charge was a felony under the then'existing state statute. $$It is at this point, plaintiff claims, that the bases of the claims exerted in this matter and the civil action filed by the 2+ election commissioners !4agas v. 8avis " become intertwined. $$)etrovich, who in the spring of *5.5 was the sole attorney representing those 2+ plaintiffs, approached )iFFolatoLs attorney in that matter, one <oseph 8efley, with a settlement proposal. 8efley relayed the proposal to )iFFolato and another defendant in that matter, whom he also represented, both of whom re ected the settlement offer. Dn <une 06, *5.5, 8efley conveyed this re ection, by

certified letter, to )etrovich. #his 3ourt finds that this letter was received by the office of defendant )etrovich on <une 0*, *5.5. #his finding results, despite )etrovichLs testimony that he did not think he first saw the letter on <une 0*, and could not say when he did see it, from the following indicia of receipt@ *" the certified receipt tab shows the first notice of receipt as <une 0*, *5.5. #he date of <uly 2, *5.5, which )etrovich testified was indicative of receipt, was the return date !i. e., the date on which the post office would have returned the letter to 8efley had it not been claimed"7 and, 0" the original of the letter is stamped I4eceived <une 0*, *5.+J by a stamp )etrovich identified as the one used by his office, which stamp was obviously mistakenly set for *5.+ instead of *5.5. It was on <une 0*, *5.5 that )etrovich called defendant )ereF to discuss the prescription issue relative to the incident of <uly 0,, *5... Dn the evening of <une 0-, )iFFolato was arrested and subsequently released on his own recogniFance. In late <uly or early ;ugust, :r. 8efley filed a motion to recuse the state udge to whom the criminal case had been allotted. 8efley testified about a conversation he had with defendant )ereF incident to that motion@ ... I went to see :r. )ereF in his office, and I told him I thought this was a garbage case, and I asked him to dismiss it. I said there was no intent to commit fraud here. $$He said he could not dismiss this case because it was his understanding that there was a civil action pending, and that the civil action had to be completed, disposed of before he would take care of this case, dispose of this case. B. #o your knowledge was there any civil action pending regarding :r. )iFFolato except for 4agas v. 8avis R ;. Hone, none whatsoever. :r. )ereF also advised me that the action on the criminal matter, that there would be no problem withholding any further proceedings in the criminal matter until the civil matter was disposed of. !#ranscript **5'*06". ;t the time of the trial of this matter, the state criminal charges against )iFFolato relative to the voting incident remained open, though the U.S. ;ttorneyLs report, quoted above, indicates that the matter was not being pursued by that office. #he opposing partiesL explanations for the actions which brought about this complex and biFarre sequence of events are important to the legal analysis of plaintiffLs claims. 8efendant )etrovich testified that he was motivated by a desire to protect his clients, Sinks and <ur evich, from charges that they, as election commissioners, might be somehow responsible for )iFFolato voting twice. 8efendant )ereF testified that during the two years between the incident and the prosecution, the voting error Iwas always in my mindJ and that he was Iwatching closely the prescription dateJ. #his purported concern was obviously never communicated to anyone, and )ereF testified that he conducted no prosecution because he had no formal complaint about the matter. #he suggestion was also made by counsel for the defense that the conversation between 8efley and )ereF, in which )ereF allegedly told 8efley the criminal matter could be put in abeyance once the pending civil case was settled, occurred in (920 Dctober of *5.5, at the time of )iFFolatoLs arraignment. #hus, that conversation referred to this case, rather than 4agas. )laintiff claims that defendants were merely motivated by a desire to harass him for his political opposition and were finally prompted to do so by his refusal to settle the 4agas case on their terms . 3onsequently, in retaliation, they conspired to file the criminal charges which were the catalyst for this litigation. Factual and Interpretive Findings

$$#his 3ourt finds that a conspiracy did exist among the defendants. #his finding arises from the facts set forth above and the conclusions which they mandate. #his 3ourt is not convinced that Sinks and <ur evich feared being prosecuted themselves as a result of the voting incident of *5... #he results of the <une *5.. primary were never challenged, and no suggestion of wrongdoing on the part of the election commissioners was ever made by anyone. 8efendant )etrovich admitted that he did not make a single contact with any other law enforcement official until his call to )ereF on <une 0*, *5.5, and that he was then aware that the United States ;ttorney was not going to investigate the matter further. ;s a result of his legal background, )etrovich must have also been aware that no state prosecution would begin without the filing of a formal complaint. #his 3ourt has already found as a matter of fact that the 8efley letter re ecting the settlement offer by )etrovich on behalf of his clients was received by )etrovichLs office on <une 0*, *5.5. #his 3ourt does not believe that, after a two'year lapse, it was mere coincidence that )etrovich called )ereF about )iFFolato on the evening of <une 0*, *5.5. #his 3ourt also does not believe that :r. )etrovich would eopardiFe a settlement proposal which was allegedly still on the table !assuming :r. )etrovich had not seen the letter by <une 0*" by having his clients file criminal charges against )iFFolato. Hor is the 3ourt convinced by the explanation offered by defense counsel of )ereFL conversation with 8efley. 8efley emphatically stated that his conversation with )ereF occurred in <uly or ;ugust of *5.5'i. e., before the instant suit had been filed. #he complaint in this matter, filed in September of *5.5, alleges that, on ;ugust 2, *5.5, plaintiffLs attorney in the state court case, :r. 8efley, had the conversation testified to by :r. 8efley with :r. )ereF. It is not within the realm of possibility that plaintiffLs counsel in this case would have alleged a conversation that was yet to take place. #hus, defendantLs suggestion that this conversation arose in Dctober and was relative to this litigation is re ected. Law M*NM0N It is well settled that, absent extraordinary circumstances, principles of comity and federalism mitigate against federal court intervention in a pending state criminal prosecution. Oounger v. Harris, /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225 !*5.*". $$#he exception to this general rule arises where plaintiff makes a showing of either bad faith or harassment by the state authorities who are pressing the prosecution7 :oore v. Sims, //0 U.S. /*,, /-0, 55 S.3t. 0-.*, 0-+*'0-+0, 26 1.Gd.0d 55/ !*5.5"7 )ereF v. 1edesma, /6* U.S. +0, +,, 5* S.3t. 2./, 2.., 0. 1.Gd.0d .6* !*5.*"7 Kolski v. &atkins, ,// (.0d .20 !,th 3ir. *5.."7 &ilson v. #hompson, ,5- (.0d *-.,, *-+* !,th 3ir. *5.5"7 Shaw v. Carrison, /2. (.0d **-, *06 !,th 3ir. *5.0", cert. denied, /65 U.S. *60/, 5- S.3t. /2., -/ 1.Gd.0d -*. !*5.0"7 Stewart v. 8ameron, //+ (.0d -52 !,th 3ir. *5.*"7 8uncan v. )ereF, //, (.0d ,,., ,26 !,th 3ir. *5.*", cert. denied, /6/ U.S. 5/6, 50 S.3t. 0+0, -6 1.Gd.0d 0,/ !*5.*". M-N #he Oounger doctrine is premised upon the assumption that Iordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rightsJ. Kugler v. Helfant, /0* U.S. **., *0/, 5, S.3t. *,0/, *,-*, // 1.Gd.0d *, !*5.,". ; good faith prosecution cannot constitute irreparable(921 harm merely because the individual sub ect to the prosecution undergoes inconvenience, anxiety and expense. 8ouglas v. 3ity of <eannette, -*5 U.S. *,., *2/, 2- S.3t. +.., ++*, +. 1.Gd. *-0/ !*5/-", inasmuch as Ino citiFen ... is immune from prosecution in good faith, for his alleged criminal actsJ. Oounger, supra, at /2, 5* S.3t. at .,*, quoting %eal v. :issouri )acific 4.4. 3orp., -*0 U.S. /,, 2* S.3t. /*+, +, 1.Gd. ,.. !*5/*". M/N If, however, the element of bad faith or harassment exists, the above presumptions cease to operate. $$#he effect of showing of a bad faith prosecution is equivalent to a showing of irreparable in ury. &ilson v. #hompson, supra at *-+0.

M,NM2NM.NM+N #he guises under which bad faith prosecutions appear are many. )ereF v. 1edesma, supra at **., 5* S.3t. at 25-. $$#here are four ma or forms which have been distinguished by the courts, however. 8avila v. State of #exas, /+5 (.Supp. +6-, +6+'+65 !S.8.#ex.*5+6". $$Dne such form occurs where prosecution is brought under a valid statute in an attempt to retaliate for a federal plaintiffLs exercise of constitutional rights . Heimbach v. ?illage of 1yons, ,5. (.0d -// !0d 3ir. *5.5"7 &ilson v. #hompson, supra at *-+0 n... $$; second type of bad faith harassment occurs when a serious prosecution is undertaken for a relatively minor offense, and is coupled with a selective process arising in an atmosphere of political andTor racial hostility. Sobol v. )ereF, 0+5 (.Supp. -50 !G.8.1a.*52+"7 8uncan v. )ereF, supra. $$;nother type of bad faith prosecution occurs where the prosecution is brought under a valid statute but with no reasonable belief that a conviction will follow. )ereF v. 1edesma, supra at **+ n.**, 5* S.3t. at 25- n.**7 Kugler v. Helfant, supra at *02 n.2, 5, S.3t. at *,-* n.2. $$It is not required in this circuit, however, that a showing of Ian unquestionable legal barJ to prosecution be made prior to a finding of bad faith. <arvis v. Knowlton, /,5 (.Supp. 2+., 25* !H.8.#ex.*5.+"7 (itFgerald v. )eek, 2-2 (.0d 5/-, 5/, !,th 3ir. *5+*". #he final form of recogniFed bad faith prosecution arises when the prosecution is motivated by a desire for personal and political gain, which prosecution evidences some degree of impermissible selectivity, even though taken pursuant to a lawful statute. Shaw v. Carrison, supra. M5N #he facts of this case indicate that a bad faith prosecution has occurred here, and that the prosecution contains some elements of all of the modes cited above. In its most compelling shape, however, it arose in retaliation for, and to discourage, the exercise by plaintiff of his constitutional rights. )laintiff, in filing his counterclaim in the 4agas case and in refusing to settle same, was engaged in constitutionally protected conduct. $$;ccess to the courts is protected by the first amendment right to petition for a redress of grievances. &ilson v. #hompson, supra at *-+.7 H.;.;.3.). v. %utton, -.* U.S. /*,, /05'/-6, +- S.3t. -0+, --,'--2, 5 1.Gd.0d /6, !*52-"7 3alifornia :otor #ransport 3o. v. #rucking Unlimited, /6/ U.S. ,6+, 50 S.3t. 265, -6 1.Gd.0d 2/0 !*5.0". #he retaliatory andTor deterrent nature of the prosecution is indicated by the conversation !the occurrence of which was never controverted by defendant )ereF" between )ereF and :r. 8efley. )ereF indicated that he would not drop the criminal prosecution until the civil matter in which plaintiff was involved !i. e., 4agas ", was terminated. His willingness to delay the prosecution pending resolution of the 4agas matter is further indication of his readiness to wield his prosecutorial powers to bring about a chilling of plaintiffLs exercise of his first amendment rights. #here are numerous factual similarities between this case and the setting in &ilson v. #hompson, supra. #here, the federal plaintiffs had previously been charged with misdemeanors in state court. #hey brought suit, under Section *5+-, alleging that the once'dormant state prosecution was re'activated in bad faith, so as to deter them from seeking redress of grievances. #he (ifth 3ircuit reversed the lower courtLs denial of a preliminary in unction as to the state prosecutions and applied the following test for determination of whether Ibad faithJ had occurred@ (922 #he 3ourt should consider whether the plaintiffs have shown, $$first, that the conduct allegedly retaliated against or sought to be deterred was constitutionally protected, and, $$second, that the StateLs bringing of the criminal prosecution was motivated at least in part by a purpose to retaliate for or to deter that conduct . If the court concludes that the plaintiffs have successfully discharged their burden of proof on both of these issues, it should then consider a third@ whether the State has shown by a preponderance of the evidence that it would have reached the same decision as to whether to prosecute even had the impermissible purpose not been considered. &ilson, supra at *-+.. #he 3ourt went on to state that factors pertinent to $$the third consideration were whether the state prosecution was undertaken without hope of a valid conviction and the seriousness of the criminal activity alleged. ;s indicated by the foregoing discussion, this 3ourt considers plaintiff to have borne his burden in proving the first and second parts of the aforementioned three'part test. It is not convinced, however, that the State has shown by a preponderance of the evidence that it would have reached the same decision to prosecute had the impermissible

purpose not been considered. #he testimony of defendant )ereF leads this 3ourt to the conclusion that he would have taken no action in the criminal matter without the impetus of )etrovichLs <une 0*st phone call. It was uncontested that, in the period between ;ugust *5.. and <une 0*, *5.5, no action had been taken on the state or federal level relative to the allegedly fraudulent voting incident. (urthermore, defendant )ereF knew then, and certainly knows now, the questionable basis for the state prosecution. #he significance of the activity, and the reasonable expectation of conviction are, in light of the circumstances surrounding the occurrence, minimal. M*6N ;s stated in Kugler v. Helfant, supra at *02 n.2, 5, S.3t. at *,-* n.2, Ibad faith in !the Oounger " context generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid convictionJ. #he standard governing plaintiffLs showing of the unlikeliness of the prosecutionLs success is a flexible and realistic one, <arvis v. Knowlton, supra, and $$plaintiff need not prove that the prosecution could not possibly result in a conviction. (itFgerald v. )eek, supra at 5/,. #he incident resulting in plaintiffLs arrest was promptly investigated by the federal authorities. #heir findings convinced them that the matter should not be pursued. Since that time, no new facts have been discovered, nor has any subsequent investigation been made. #his 3ourt has found evidence of improper motivation. #he element of selectiveness is also apparent in that the other election commissioners present at %uras and %oothville could have been charged with the second of the two counts entered against plaintiff'i. e., the action taken, as an election commissioner, in counting a fraudulent vote . Ho such charges were brought against anyone other than plaintiff. &hile defendants make much of the fact that plaintiff is charged in the criminal prosecution with a felony, the gravity of this fact is mitigated by the unlikelihood of finding criminal intent, given the strange chain of events surrounding the voting fraud incident. 8uncan v. )ereF, supra at ,26. &hile the charges pending against the plaintiff are now punishable at a maximum of six months each, defendant )ereF seeks to prosecute him under the statute in effect at the time of the incident. #hat prior statute treats these allegations as punishable by up to four years imprisonment. See 8uncan v. )ereF, supra at ,,5 n.- !maximum penalty sought for trivial offense is a factor to be considered in a determination of bad faith". 4elative to defendant )ereFLs current knowledge of the circumstances surrounding this matter, his continued pursuit of this prosecution is, itself, an indication of a bad faith prosecution which should be en oined. &ilson v. #hompson, supra at *-++ n.0- !noting that subsequent discovery by prosecution of its mistaken factual basis may be a ground for in unctive relief". (923 M**N )laintiff has therefore established to this 3ourtLs satisfaction that a bad faith prosecution occurred . &here the Oounger doctrine is inapplicable, the ;nti'In unction ;ct, 0+ U.S.3. s 00+- does not bar an in unction. ;ccordingly, the lower courtLs prosecution of plaintiff on the criminal charge described above is to be en oined. Henry v. (irst Hational %ank of 3larksdale, ,5, (.0d 05*, -66 !,th 3ir. *5.5"7 :itchum v. (oster, /6. U.S. 00,, 50 S.3t. 0*,*, -0 1.Gd.0d .6, !*5.0". M*0NM*-N 8efendant )ereF is immune from damage liability in a suit under Section *5+-, since the acts complained of were within the scope of his duties as district attorney. Imbler v. )achtman, /0/ U.S. /65, 52 S.3t. 5+/, /. 1.Gd.0d *0+ !*5.2"7 HenFel v. Cerstein, 26+ (.0d 2,/ !,th 3ir. *5.5". )laintiff seeks damages from the two remaining defendants, )etrovich and <ur evich, based upon his allegations that they acted in concert with the prosecutor in bringing about the bad faith prosecution. 3onspiracies to deprive one of his constitutional rights are actionable under Section *5+-, and a showing of class'based discrimination is not a prerequisite to liability. :iFell v. Horth %roward Hospital 8ist., /0. (.0d /2+, /.0 !,th 3ir. *5.6"7 3rowe v. 1ucas, ,5, (.0d 5+,, 556 !,th 3ir. *5.5". M*/NM*,NM*2N #o sustain a claim under Section *5+-, plaintiff must show both a deprivation by defendant of a constitutionally secured right and that defendant acted under color of state law. ;dickes v. S. H. Kress 9 3o., -5+ U.S. *//, 56 S.3t. *,5+, 02 1.Gd.0d */0 !*5.6". )rivate persons, conspiring or participating in oint activity with

state officials in prohibited conduct, may be sued under Section *5+-, inasmuch as they are deemed to be acting under color of state law. ;dickes v. Kress, supra at *,6'*,0, 56 S.3t. at *26/'*26,7 (ad o v. 3oon, 2-- (.0d **.0, **., !,th 3ir. *5+*"7 &illiams v. 4hoden, 205 (.0d *655, **60 !,th 3ir. *5+6". )rivate individuals may be held liable for damages under Section *5+- even if they have conspired with immune state officials. 3ook v. Houston )ost, 2*2 (.0d .5*, .5/ !,th 3ir. *5+6", Sparks v. 8uval 3ounty 4anch 3o., Inc., 26/ (.0d 5.2, 5+- !,th 3ir. *5.5" !en banc"7 affLd sub nom7 8ennis v. Sparks, //5 U.S. 0/, *6* S.3t. *+-, 22 1.Gd.0d *+, !*5+6". #his 3ircuit has held that proof of a civil conspiracyLs existence does not require direct evidence of the agreement between the conspirators. 4ather, the proof of an agreement to act in concert must often rest on circumstantial evidence. $$#he evidence here showed that the defendants had participated in private meetings at which !plaintiff" was discussed. (rom this evidence and the testimony regarding the defendantsL course of conduct toward !plaintiff" the ury could reasonably have inferred that a conspiracy existed. 3rowe v. 1ucas, supra at 55-. M*.N #he 3ourt is convinced that defendants )ereF and )etrovich reached a meeting of minds relative to the manner in which the plaintiff was to be pressured into settling the 4agas litigation. 8efendant <ur evich shared in the general ob ective of defendants )etrovich and )ereF, which ob ective was to coerce the plaintiff into a settlement of a suit in which he was a plaintiff. #his shared ob ective constitutes the common plan7 the overt acts of filing the information and initiating the prosecution constitute acts in furtherance of the conspiracy. )laintiff was the ob ect of discussion in the telephone conversation between defendants )etrovich and )ereF, as well as in discussions between defendants <ur evich and )etrovich. 3rowe, supra. &hen these facts are coupled with the timing of subsequent events'the call to )ereF following 8efleyLs re ection of the complaint, the marshalling of IcomplainantsJ <ur evich and Sinks, the arrest of plaintiff'strong circumstantial evidence permits this 3ourt to conclude that a conspiracy existed between defendant )ereF and defendants <ur evich and )etrovich. )laintiff also brings suit under /0 U.S.3. ss *5+,!-" and *5+,!0". However, as is conceded by plaintiff, since this 3ourt has already found a violation of Section *5+- and also found conspiracy under that section, (924 this 3ourtLs decision may rest upon that ground, rather than the alternative Section *5+, conspiracy grounds. $$It is noted that this 3ourt is not convinced that plaintiff has made out a cause of action under Section *5+,!0". #his determination results from this 3ourtLs reading of Kimble v. 8. <. :c8uffy, Inc., 2/+ (.0d -/6 !,th 3ir. *5+*" !en banc". #he 3ourt referred to the four'part breakdown of /0 U.S.3. s *5+,!0", which was enunciated by then' 8istrict 3ourt <udge ;lvin 4ubin@ ;. If two or more persons conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein ... or %. to in ure such party or witness in his person or property on account of his having so attended or testified, or 3. if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of ustice in any State or #erritory, with intent to deny to any citiFen the equal protection of the laws, or 8. to in ure him or his property for lawfully enforcing ... the right of any person, or class of persons, to the equal protection of the laws. )laintiff bases his claim under this statute upon defendantsL alleged violation of the Isecond and thirdJ clauses !i. e., I%J and I3J above". #he 3ourt in Kimble v. :c8uffy, supra, held that the racial or class'based animus requirement

of Section *5+,!-" is fully applicable to all parts of Section *5+,!0". #he 3ourt reiterated that class'based animus may arise as a result of an individualLs political beliefs or associations. #his 3ourt is convinced that plaintiff was the sub ect of class'based animus, stemming from his political alignments, which alignments were adverse to the defendants. However, the Kimble 3ourt enunciated a very narrow construction of the Iattend or testifyJ language appearing in I3lause %J. It quoted with approval the 8istrict 3ourtLs interpretation of the phrase@ !Section *5+,!0"" does not create a claim for every conspiracy entered into with intent to deny a citiFen access to a court or to retaliate against a citiFen for his utiliFation of the federal court system. If they are to come within the plain language of the statute, plaintiffs must allege that they were in ured on account of having attended or testified in federal court. #his they have not done .... ;t most, the conspiracy charged was aimed at in uring the plaintiffs on account of their having asserted a claim or filed a lawsuit. 3ongress did not undertake to make that behavior actionable. //, (.Supp. at 0.2 !emphasis in original7 footnotes omitted". #he en banc decision then honed the meaning of this language even further@ In light of the acts of violence that threatened the sanctity of federal courts, 3ongress meant Section *5+,!0" to protect a party based on his physical presence while attending or testifying in court. Kimble, supra at -/+. ;s a result of this interpretation of Iattend or testifyJ, plaintiffLs claim under 3lause % of Section *5+,!0" is denied. )laintiff concedes that there is little urisprudence relative to a claim brought under I3lause 3J, other than to recogniFe that it too requires a finding of class'based animus and Iindependent illegalityJ. #his 3ourt is not disposed to interpret the Iobstructing ... the due course of ustice languageJ as encompassing the violation alleged here !i. e., institution of a frivolous criminal action", and would deny plaintiffLs claim for relief based upon this section of Section *5+,!0". M*+N #o establish a claim under Section *5+,!-", plaintiff need not prove that the alleged wrong occurred under color of state law, inasmuch as Section *5+,!-" is applicable to private conspiracies. Scott v. :oore, 2/6 (.0d .6+, .*. !,th 3ir. *5+*"7 Sims v. <efferson 8owns, Inc., 2** (.0d 265, 2*/ !,th 3ir. *5+6". See generally Criffin v. %reckenridge, /6- U.S. ++, *6*'*6-, 5* S.3t. *.56, *.5.'*.55, 05 1.Gd.0d --+ !*5.*". (925 #he elements of a civil action under this section were set out in Criffin, supra @ $$!*" #he defendants must conspire or go in disguise on the highway or premises of another7 $$!0" for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws7 and $$!-" one or more of the conspirators must commit some act in furtherance of the conspiracy7 whereby $$!/" another is either !a" in ured in his person or property or !b" deprived of having and exercising any right of privilege of a citiFen of the United States. #he (ifth 3ircuit has amplified on the above by the addition of the element of Iindependent illegalityJ'i. e., that the conduct complained of is unlawful, independent of the Section *5+,!-" violation. :c1ellan v. :ississippi )ower 9 1ight 3o., ,/, (.0d 5*5 !,th 3ir. *5.." !en banc". #his 3ourt has determined that a conspiracy existed among the defendants. ;s set forth more fully, infra, the

plaintiff incurred personal in ury and loss as a result. $$#he 3ourt has also determined that defendants were motivated in their conspiratorial acts by class'based bias, relative to plaintiffLs political activities . #his determination was made by application of Scott v. :oore, supra at .06, .0-, citing cases relative to classes discriminated against because of their political beliefs. See also Kimble v. :c8uffy, supra at -/.. $$#his 3ourt also finds that, inasmuch as the right to seek redress in the 3ourts, as well as the right of free association, are protected by the (irst ;mendment, plaintiff has suffered a violation of a protected right. Scott v. :oore, supra at .*27 &ilson v. #hompson, supra at *-+-. However, this 3ourt is not convinced that plaintiff has shown an Iindependent illegalityJ. Hor is it convinced that its own finding that a violation of Section *5+- occurred provides evidence of such an illegality. ;s stated in Creat ;merican (ederal Savings 9 1oan ;ssn. v. Hovotny, //0 U.S. -22, 55 S.3t. 0-/,, 0-,/, 26 1.Gd.0d 5,. !*5.5" !<. Stevens, concurring"@ Heither of these sections !*5+- and *5+,!c"" created any substantive rights. Garlier this term we squarely held that Section *5+- merely provides a remedy for certain violations of federal rights, and today the 3ourt unequivocally holds that Section *5+,!c" =provides no substantive rights itself7 it merely provides a remedy for violation of the rights it designated@ ;nte at 0-/5. #his 3ourt further finds that plaintiff has failed to prove a violation of any state law so as to satisfy the Iindependent illegalityJ requirement.M(H*N (H*. )laintiff alleges violations of state extortion laws, as well as the intentional infliction of emotional distress and the tort of malicious prosecution. #he 3ourt does not find these proved. #he 3ourt also questions whether the Iact in furtherance of the conspiracyJ !i. e., the filing of charges" is legally sufficient for Criffin purposes. #he oft'quoted language of United States v. Harris, *62 U.S. 205, * S.3t. 26*, 0. 1.Gd. 056 !*++-" describes the IactsJ by which a private person can deprive another of the equal protection of the laws@ I... some offense against the laws which protect the rights of persons, as by theft, burglary, arson, libel, assault or murderJ. Id. at 2/-, * S.3t. at 2*0. ;s stated in Scott v. :oore, supra at .0/@ I%ut where ... force or violence is used to deprive ... workers ... of the right to freely associate ... a Section *5+,!-" action will lieJ. See also :c1ellan v. :ississippi )ower 9 1ight, supra at 50+ n.-/@ &e also draw support for our reading of the statute from the very nature of a civil conspiracy. In a common law tort conspiracy, unlike a criminal conspiracy, a mere combination or agreement to commit a tort is not in itself actionable. 4ather, some act which is itself a tort must be taken in furtherance of the ob ect of the conspiracy. See generally &. )rosser, supra note 02, s /27 %urdick, 3onspiracy as a 3rime and as a #ort, . (92# 3olum.1.4ev. 005 !*56.". Section *5+,!-", requiring as it does an act in furtherance of the ob ect of the conspiracy and an in ury to the plaintiff, closely tracks the elements of a common law conspiracy to commit a tort. #hus, plaintiffLs claim to redress under Section *5+,!-" is not cogniFable7 this 3ourt does not believe that the requisite showings of an act in furtherance of the conspiracy and independent illegality have been made. 8;:;CGS M*5NM06N 8amages are available under /0 U.S.3. s *5+- for actions found to have been violative of constitutional right, which actions are proved to have caused compensable in ury. 3arey v. )iphus, /-, U.S. 0/., 5+ S.3t. *6/0, ,, 1.Gd.0d 0,0 !*5.+". Since the principles of tort damages apply to civil rights actions, an award of compensatory damages may encompass compensation for emotional distress. Carner v. Ciarrusso, ,.* (.0d *--6 !,th 3ir. *5.+"7 Qarcone v. )erry, ,.0 (.0d ,0 !0d 3ir. *5.+". ;lthough plaintiff was not incarcerated, having been released on his own recogniFance after booking, $$ he has

incurred damage Iby the in ury flowing from the very bringing of the state proceedings, by the perversion of the very process that is supposed to provide vindicationJ. Oounger v. Harris, supra, /6* U.S. at ,2, 5* S.3t. at .,. !concurring opinion of Stewart and Harlan, <<". )laintiff testified that the charges, though trivial, have been a constant source of concern to him and his family. #his concern is rooted in his fear that, in )laquemines )arish, he could be convicted and sentenced to a substantial ail term. Indeed, the first udge to whom plaintiffLs state court case was assigned recused himself as a result of public statements he had made relative to the vote fraud incident. )laintiff also testified to the serious chilling effect that these charges have had on his political activity@ ;s an opponent of !the )ereF" organiFation, I have been, I think by this action that they have brought against me' that some of the people in the )arish have looked upon me as some kind of wrongdoer and it has tainted me to them to the degree that my political future or my political position is strained, and I personally will have to go through a bit of soul'searching to ever serve in a poll again, or to ask any of my friends to serve in a poll again, for fear the same thing may happen to them. #r. -0'--. ... I fear that if ever I would make another honest error, that I could never make anyone believe that I had made two honest errors. I am having a hard enough time making people believe I made one honest error. 3onsequently, I donLt dare serve as an election commissioner again. #r. .2. )laintiff stated that he declined to work as an election official for a friend when that individual ran for a School %oard seat. )laintiff stated that he feared his ItaintJ might rub off on that individual, thereby hurting his chances of success. M0*N ;ccordingly, this 3ourt finds that compensatory damages are owing to plaintiff from defendants <ur evich and )etrovich in the amount of A*6,666.66. M00NM0-N )unitive damages are also available for violations of those rights secured by /0 U.S.3. s *5+-. )almer v. Hall, ,*. (.0d .6,, .6. !,th 3ir. *5.,"7 :ansell v. Saunders, -.0 (.0d ,.-, ,.2 !,th 3ir. *52.". Such an award is appropriate where the violation is Iwillful and in gross disregard for the rights of the complaining partyJ. 1ee v. Southern Home Sites 3orp., /05 (.0d 056, 05/ !,th 3ir. *5.6"7 see generally ;dickes v. S. H. Kress 9 3o., supra at 0--'0-/, 56 S.3t. at *2/0'*2/-. #his 3ourt finds direct as well as circumstantial evidence that the defendantsL actions in maintaining and pursuing the criminal prosecution of plaintiff were done willfully and in callous disregard for the rights of plaintiff. #he amount of punitive damages which this 3ourt finds to be owing is within the range of awards granted for (927 comparable violations. See )almer v. Hall, supra !Section *5+- case7 A*,,666 punitive damage award"7 Qarcone v. )erry, supra !wrongful arrest7 A26,666 punitive damage award". ;ccordingly, plaintiff is awarded punitive damages from defendants )etrovich and <ur evich in the amount of A*6,666.66. 8efendant )ereF is, for the reasons set forth above, en oined from prosecution of the criminal charges now pending against plaintiff. <udgment shall be entered accordingly.

Oellow flag ;)e/p" +. @a!&/ton, 59 -.3d 1058, 23 %ed&a L. Rep. 2121 $10t) C&r.$Aan.',.u/ 11, 1995'
9&5)ert +. 9a/ter, #0# -.Supp. 151#, 24 Ed. La* Rep. 917 $3. ...,Apr 22, 1985'

e-pansive instruction on all the cases that faith prosecution. 4elly v. 5il!ert '3% 6.)upp.2&$

eet the finding of !ad

Ae//4 +. ,&/8ert, 437 -.Supp. 201, 24 -ed.R.Ser+.2d 700 $3.%ont.,75t 04, 197#' 06 #he terms I8ad 6a&t)J and IharassmentJ connote purposeful actions and conduct motivated by a malicious or discriminatory purpose. :aney v. 4atcliff, -55 (.Supp. .26, ..0 !G.8.&is.*5.,". I2ad 6a&t)J generally means a pro"e5ut&on brought without a rea"ona8/e expe5tat&on of o8ta&n&ng a +a/&d 5on+&5t&on, IharassmentJ having much the same meaning. $$%ut they can also mean the exercise of authority in such a manner as to be unnecessarily oppressive. #immerman v. %rown, ,0+ (.0d +**, +*, !/th 3ir. *5.,". 0* :y review of the evidence adduced in this action establishes a basis to believe, among other things, the following. &itnesses were intimidated by the "pe5&a/ prosecutors> conduct in investigating alleged violations of criminal law and in the way witnesses were examined in the presence of the grand ury. #his is succinctly expressed by &illiam ;. )ellegrini, when he responded to a question with the following answer@ ; &ell, they started asking me the same questions all over again that I>d answered the year before. %ut this time, though, there was an underlying'I don>t know exactly how to put this, really'but as the conversation went along'let>s put it like this'I felt I was being threatened, and I didn>t know why. Oou know, to be threatened, you don>t have to have somebody come right out and say II>m going to do this to youJ or II>m not going to do this to youJ, or IOou>re going to do thisJ or IOou>re going to do thatJ. Oou know, people can threaten you ust by the way they act, the tone of their voice or a look in their eye. Oou know, I grew up in a place'well, in ;naconda'and I>ve never been exactly the docile type, so I>ve been in fights with different people in town, and I know when a guy is after my butt, so to speak. ;nd that>s ust the definite impression I got from :r. Cilbert. #r. of 8eposition of )ellegrini, of Sept. */, *5.2, p. ,, l. *5, to p. 2, l. -. #he "pe5&a/ prosecutor approached Kelly, without the knowledge or consent of Kelly>s attorney, and discussed Kelly>s grand ury testimony. #he state>s prosecutors presented argument and evidence to the grand ury without the presence of a court reporter. #he questioning of Kelly was far beyond the scope of legitimate grand ury inquiry in :ontana. #he questions asked after immunity have all the trappings of laying the groundwork for per ury. Kelly has been denied a factual hearing on his claims in state court. Individually or together, these facts amount to an unnecessarily oppressive exercise of authority denying the plaintiff his constitutional right to the due process of law. ;t times, the due process clause of $000 the (ourteenth ;mendment acts as a constitutional stop sign, controlling the traffic of the interaction between a state and her citiFens, designed to impart caution and ensure fairness at significant unctures of that relationship. In extraordinary 5&r5u!"tan5e", the federal courts are called upon to stop the activities of the state. #his case is one such instance. :&!!er!an +. 2ro*n, 528 -.2d 811 $4t) C&r.$S.C.' 3e5 15, 1975' State prisoners 8roug)t 3ivil 4ights ;cts suit against various state and county officials seeking money damages as well as equitable and declaratory relief. #he United States 8istrict 3ourt for the 8istrict of South 3arolina, 4obert S. 3hapman, <., dismissed county magistrate and solicitor and certified dismissal as a final udgment, and plaintiff appealed. #he 3ourt of ;ppeals, &inter, 3ircuit <udge, held that although solicitor and magistrate were immune from suit for money damages they were not immune from equitable and declaratory relief and that plaintiffs, seeking

to en oin their pending state pro"e5ut&on, had alleged a case of =8ad 6a&t)> or =harassment> by state officials. 4eversed and remanded. 2 Cr&!&na/ La* Hature and Hecessity Cr&!&na/ La* Crounds and 3onsiderations
**6 3riminal 1aw **6PII )retrial )roceedings **6k0*, )reliminary &arrant or Dther )rocess **6k0*2 Hature and Hecessity **6 3riminal 1aw **6P?I Holle )rosequi or 8iscontinuance **6k-6-., 8ismissal, Holle )rosequi, or 8iscontinuance **6k-6-.-6 Crounds and 3onsiderations **6k-6-.-6!*" In Ceneral !(ormerly **6k-60!*""

Under South 3arolina law, a prosecutor lacks authority to interfere with the magistrate>s issuance of an arrest warrant once the magistrate has found probable cause7 however, the prosecutor may thereafter nol pros the pro"e5ut&on, in open court, if he concludes that the state cannot prove a case. 3ases that cite this headnote 3 -edera/ Court" )articular )roceedings

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!;" In Ceneral *.6%k06 ;ncillary and Incidental <urisdiction *.6%k0* )articular )roceedings !(ormerly *62k02/!0""

&here a federal court is ustified in en oining a pending state criminal pro"e5ut&on, the federal court may also entertain ancillary claims for declaratory and in unctive relief. 0+ U.S.3.;. E 00+-7 /0 U.S.3.;. E *5+-. 3ases that cite this headnote

Court"

3riminal )roceedings

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." 3riminal )roceedings

State prisoner>s 3ivil 4ights ;ct complaint alleging that various state and county officials were acting under color of state law to deprive plaintiffs of (irst and (ourteenth ;mendment rights by abusing plaintiffs without provocation, by maliciously and in 8ad 6a&t) causing issuance of warrant for arrest and pro"e5ut&on of plaintiffs and $$by refusing to allow issuance of criminal warrants against the plaintiff>s attackers even though magistrates had found probable cause for their issuance alleged a case within the I 8ad 6a&t)J or IharassmentJ exception to the

Oounger rules, i. e., that federal courts are not to en oin a pending state criminal pro"e5ut&on. U.S.3.;.3onst. ;mends. *, */7 0+ U.S.3.;. E 00+-7 /0 U.S.3.;. EE *5+-, *5+,. 3ases that cite this headnote &IH#G4, 3ircuit <udge@

In plaintiffs> suit for equitable relief, declaratory relief and money damages because defendants allegedly were violating plaintiffs> first and fourteenth amendment rights by pro"e5ut&ng them and $$by suppressing the pro"e5ut&on of others, the district court granted motions to dismiss in favor of (ranchot ;. %rown and <ohn (oard, :agistrate and Solicitor, respectively, for the 3ounty of 4ichland, South 3arolina. #he district court ruled that both defendants were immune from suit since the actions complained of concerned the exercise of their respective udicial and quasi' udicial immunity. ;fter entry of an order certifying the dismissal as a final udgment, 4ule ,/!b", (.4.3iv.)., this appeal followed. * ;lthough %rown and (oard are immune from suit for money damages, we hold that they are not immune from equitable and declaratory relief. 3ontrary to the arguments of these defendants, $$we also conclude that plaintiffs have alleged a cause of action which survives the restrictive rule of Oounger v. Harris, /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225 !*5.*". ;ccordingly, we conclude that dismissal as to %rown and (oard was erroneously granted. &e reverse and remand for further proceedings. <. (or purposes of this appeal, we accept, as we must, the facts as alleged in the complaint. It sets forth that plaintiffs are prisoners incarcerated at the 3entral 3orrectional Institution at 3olumbia, South 3arolina. * Dn ;ugust **, *5.-, plaintiff #immerman, falsely accused of being under the influence of alcohol, was brutally assaulted and then handcuffed by certain of the defendant correctional officers of 3entral. &hile helpless to defend himself, he was further brutally and maliciously battered by these defendans. )laintiff #homas and several other inmates attempted to protect #immerman from further in ury, and as a result of their efforts the beating was discontinued and both plaintiffs were returned to their cells. ;lthough #immerman suffered multiple physical in uries apparent to anyone observing him, he was denied medical treatment. ;lthough it is not alleged that %rown and (oard participated in the beating or denial of medical treatment, they were fully informed of the facts. $$Honetheless, they conspired to deprive plaintiffs of their right to have access to criminal process to effect punishment on those who committed wrongs on them and their right to speak and write about the $+*- wrongs perpetrated upon them . Knowing that plaintiffs wished to 8r&ng criminal charges against their attackers, %rown, (oard, their co'conspirators and their agents, transferred plaintiffs to solitary confinement where they are still held. )laintiffs, nevertheless, caused to be delivered to :agistrate %rown proposed criminal warrants against #immerman>s attackers, charging them with assault and battery, and :agistrate %rown determined that probable cause existed for the issuance of the warrants. 0 (oard, his co'conspirators and their agents, prevented the issuance of the warrants, however, by notifying :agistrate %rown that inmates could not cause warrants to be 8roug)t against correctional officials unless Solicitor (oard determined, on the basis of an independent investigation by the South 3arolina 1aw Gnforcement 8ivision !S.1.G.8.", that probable cause existed for their issuance. ;s a result, %rown refused to issue the arrest warrants. (oard did not cause a S.1.G.8. investigation to be made.0 )laintiffs also allege that they have been maliciously sub ected to threats to their lives and safety, denial of parole to #imerman, and to 8ad 6a&t) criminal charges. #hey allege that, even though :agistrate %rown dismissed some of the criminal charges against them, they have been indicted, at the instance of (oard, by the grand ury of 4ichland 3ounty for the same, or substantially the same, offenses which :agistrate %rown dismissed . %y affidavits which

were supplied us in motions relating to this appeal, we were advised that by error these indictments have been nol prossed. #his aspect of the case is not moot, however, because we are further advised that the state does not intend to give up pro"e5ut&on of plaintiffs for their part in the incident occurring ;ugust **, *5.-. Hew indictments will be prepared and these indictments will be presented to the grand ury for 4ichland 3ounty which will convene on ;ugust 0,, *5.,. In summary, plaintiffs allege that defendants, collectively, in violation of /0 U.S.3. ss *5+- and *5+,, are acting in concert, under color of state law, to deprive plaintiffs individually and as a class of their first and fourteenth amendment rights by $$abusing plaintiffs without provocation, $$denying plaintiff #immerman necessary medical treatment, $$maliciously and in 8ad 6a&t) causing the issuance of warrants for the arrest and pro"e5ut&on of plaintiffs, and $$refusing to allow the issuance of criminal warrants against #immerman>s attackers even though probable cause for their issuance has been found.- )laintiffs therefore sought !a" money damages, !b" a declaration that $$the espoused policy of (oard to suppress criminal warrants based on probable cause and issued at the instance of inmates of a correctional institution violates the fourteenth amendment, !c" an in unction against defendants, except :agistrate %rown, to restrain them from interfering with the issuance or nonissuance of criminal warrants, !d" an in unction to restrain the pending criminal pro"e5ut&on" against #immerman and #homas, and !e" a writ of mandamus requiring :agistrate %rown to issue the criminal warrants against #immerman>s attackers. &e agree with the district court that, on the basis of udicial immunity, the $+*/ complaint against %rown and (oard shoud be dismissed to the extent, but only to the extent, that it seeks the recovery of money damages. %rown, as a udicial officer, and (oard, as a prosecutor, en oyed udicial and quasi' udicial immunity, respectively. )ierson v. 4ay, -+2 U.S. ,/., +. S.3t. *0*-, *+ 1.Gd.0d 0++ !*52."7 :c3ray v. :aryland, /,2 (.0d * !/ 3ir. *5.0". #his immunity, however, protects qualified defendants only from claims for money damages. It =does not extend to plaintiff>s action for in unctive and declaratory relief under Section *5+-, /0 U.S.3.> (owler v. ;lexander, /.+ (.0d 25/, 252 !/ 3ir. *5.-". See 1ittleton v. %erbling, /2+ (.0d -+5 !. 3ir. *5.0", cert. den., /*/ U.S. **/-, 5/ S.3t. +5/, -+ 1.Gd.0d 2./ !*5./", rev>d on other grounds sub nom. D>Shea v. 1ittleton, /*/ U.S. /++, 5/ S.3t. 225, -+ 1.Gd.0d 2./ !*5./", vacated sub nom., Spomer v. 1ittleton, /*/ U.S. ,*/, 5/ S.3t. 2+,, -+ 1.Gd.0d 25/ !*5./". See also :itchum v. (oster, /6. U.S. 00,, 50 S.3t. 0*,*, -0 1.Gd.0d .6, !*5.0", where, as here, in a suit against a state pro"e5ut&ng attorney and circuit udge, the Supreme 3ourt concluded that /0 U.S.3. s *5+- is an =expressly authoriFed> exception to the federal anti'in unction statute, 0+ U.S.3. s 00+-. &e conclude, then, that the district court overextended the doctrine of udicial immunity insofar as it applied it to warrant dismissing %rown and (oard from those aspects of the complaint which sought declaratory and in unctive relief. Unless there is some urisdictional bar, %rown and (oard should be retained as parties defendant in the action and the case decided on the merits. Hevertheless, in Oounger, the 3ourt significantly qualified the anti'in' unction rule announced in that case by suggesting possible exceptions@ It is sufficient for purposes of the present case to hold, as we do, that the possible unconstitutionality of a statute =on its face> does not in itself ustify an in unction against goodfaith attempts to enforce it, and that appellee Harris has failed to make any showing of 8ad 6a&t), harassment, or any other unusual circumstance that would call for equitable relief. /6* U.S. at ,/, 5* S.3t. at .,,. #he holding in Oounger has been extended and refined in a number of subsequent cases. (or our purposes, it is unnecessary to analyFe subsequent holdings $+*, except to note that the exceptions to federal nonintervention suggested in Oounger have continued to be recogniFed. In the recent decision in Kugler v. Helfant, /0* U.S. **., 5, S.3t. *,0/, // 1.Gd.0d *, !*5.,", Oounger was approvingly described@ !#"he 3ourt in Oounger left room for federal equitable intervention in a state criminal trial where there is a showing

of =8ad 6a&t)> or =harassment> by state officials responsible for the pro"e5ut&on . . ., where the state law to be applied in the criminal proceeding is =flagrantly and patently violative of express constitutional prohibitions,> . . . or where there exist other =extraordinary circumstances in which the necessary irreparable in ury can be shown even in the absence of the usual prerequisites of had faith and harassment.> ;ccord@ Huffman v. )ursue, 1td., /06 U.S. ,50, 5, S.3t. *066, /- 1.Gd.0d /+0 !*5.,"7 Hicks v. :iranda, /00 U.S. --0, 5, S.3t. 00+*, /, 1.Gd.0d 00- !*5.,"7 8oran v. Salem Inn, Inc., /00 U.S. 500, 5, S.3t. 0,2*, /, 1.Gd.0d 2/+ !*5.,". &e think that in the instant case plaintiffs have allged a case of = 8ad 6a&t)> or =harassment> by state officials for the pro"e5ut&on. ;s pointed out in Kugler, /0* U.S. at *02, n.2, 5, S.3t. at *,-*, I8ad 6a&t)> in this context generally means that a pro"e5ut&on has been 8roug)t without a rea"ona8/e expe5tat&on of o8ta&n&ng a +a/&d 5on+&5t&on.> $$=Harassment> means much the same, although it also connotes a legal exercise of authority in such a manner as to be unnecessarily oppressive. $$)laintiffs have alleged that :agistrate %rown dismissed charges against them but, nevertheless, they have been, or will be indicted by the grand ury and pro"e5uted on the same or substantially similar charges . &hile that allegation alone may not reasonably give rise to the inference that there is little likelihood that they will be 5on+&5ted, plaintiffs have alleged that :agistrate %rown found that there was probable cause to pro"e5ute some of the defendants for their part in the same incident which purportedly gave rise to the charges against plaintiffs. Df course, it is theoretically possible for two participants in an affray between them both to be guilty of assault. %ut unless we are to assume the incompetence of %rown or a strong bias in favor of plaintiffs'assumptions for which there is no basis in the record'it is less likely that there is a good case against plaintiffs when a disinterested udicial officer has determined that there is no basis on which to pro"e5ute them but there is a basis on which to pro"e5ute their antagonists. &hatever lingering doubt may exist about the substance of any case against plaintiffs is removed, at this stage of the case, by the further allegation that $$(oard took steps, concededly illegal if in fact taken, to suppress any pro"e5ut&on of plaintiffs> antagonists notwithstanding that the :agistrate found probable cause for these pro"e5ut&on" to go forward. &e have no doubt that plaintiffs, even though they are inmates, have some first and fourteenth amendment rights to air their grievances and to have access to udicial procedures to redress them. )rocunier v. :artineF, /*2 U.S. -52, 5/ S.3t. *+66, /6 1.Gd.0d 00/ !*5./"7 3ruF v. %eto, /6, U.S. -*5, 50 S.3t. *6.5, -* 1.Gd.0d 02- !*5.0"7 <ohnson v. ;very, -5- U.S. /+-, +5 S.3t. ./., 0* 1.Gd.0d .*+ !*525"7 8owd v. United States ex rel. 3ook, -/6 U.S. 062, 5* S.3t. 020, 5, 1.Gd. 0*, !*5,*"7 3ochran v. Kansas, -*2 U.S. 0,,, 20 S.3t. *62+, +2 1.Gd. */,- !*5/0"7 1ane v. 3orrell, /-/ (.0d ,5+, 266 !, 3ir. *5.6". $$&e think that plaintiffs have alleged 8ad 6a&t) and intentionally harassing efforts to deny these rights, including but not limited to 8ad 6a&t) and harassing efforts to pro"e5ute them. $$&e think that plaintiffs have alleged a case within an exception to the restrictive Oounger rule and that the district court not only had urisdiction to ad udicate their claims for equitable and declaratory relief on the merits, but also should exercise it. $$Df course, we reach these conclusions solely on the basis of plaintiffs> allegations. $+*2 In the present posture of the case, those allegations are uncontroverted and we think that they require an evidentiary hearing. Until an evidentiary hearing has been held and the facts found, we cannot know them. $$It follows that the udgment dismissing (oard and %rown must be reversed and the case remanded for further proceedings not inconsistent with this opinion. &e append two additional comments for the guidance of the district court on remand@ (irst, it appears from statements contained in affidavits in support of, and in opposition to, a motion for summary

reversal that defendant (oard has been succeeded in office by a certain <ames 3. ;nders, Gsquire. In oral argument, counsel confirmed that (oard is no longer Solicitor for 4ichland 3ounty. ; formal substitution of parties has not been requested, and no party has raised any question of the effect, if any, of defendant (oard>s leaving office. See Spomer v. 1ittleton, /*/ U.S. ,*/, 5/ S.3t. 2+,, -+ 1.Gd.0d 25/ !*5./". &e do not address the question. It may, however, be raised and decided in the district court on remand. Second, we would suppose that, if after trial, an in unction to prevent further unlawful interference by the Solicitor of the 3ounty of 4ichland !if such be proved" is granted, :agistrate %rown, freed from interference from the Solicitor>s office, would issue any warrants sought by plaintiffs, which he determined were grounded on probable cause, on his own motion without the necessity of an order by the district court. %ecause of this likelihood we do not consider the authority of a federal court in order to redress a violation of s *5+- to compel performance of a ministerial act by a state udicial officer. 3ompare )eek v. :itchell, /*5 (.0d ,., !2 3ir. *5.6", with :cIntire v. &ood, . 3ranch. ,6/, - 1.Gd. /06 !*+*-"7 Stern v. South 3hester #ube 3o., -56 U.S. 262, ++ S.3t. *--0, 06 1.Gd.0d *.. !*52+"7 Haggard v. State of #ennessee, /0* (.0d *-+/ !2 3ir. *5.6"7 Curley v. Superior 3ourt of :ecklenburg 3ounty, /** (.0d ,+2 !/ 3ir. *525". See also Hote, :andatory In unctions as Substituted for &rits of :andamus in the (ederal 8istrict 3ourts@ a Study in )rocedural :anipulation, -+ 3olum.1.4ev. 56-, 56/'6, !*5-+". &e do not dismiss :agistrate %rown now, however, because if plaintiffs prove the case they have alleged and our supposition with regard to %rown is unfounded, the district court will be 8roug)t to the question we reserve. 4eversed and remanded.

Feerick v. Sudolnik 816 F.Supp. 879 , S.D.N.Y. , Feb. 17, 1993

yellow flag 6eeric" v. )udolni" 8$7 6.)upp. 8%9 8).D.9.:., 6e! $%, $993;
3ity police officers who were indicted by grand ury on various counts arising out of search of public housing pro ect sued Hew Oork )olice 8epartment !HO)8", its commissioners, employees, and Internal ;ffairs 8ivision as well as state court udge handling case, county district attorney>s office !8;D", head of office, and two assistant district attorneys alleging that indictment was improperly derived from immuniFed testimony and requested in unctive, declaratory, and monetary relief. 8efendants moved to dismiss under the Younger abstention doctrine or for failure to state claim. #he 8istrict 3ourt, Keenan, <., held that@ !*" 8ad 6a&t) pro"e5ut&on and extraordinary circumstances exceptions to Younger abstention doctrine did not apply to declaratory and in unctive relief claims7 !0" state court ustice named only as nominal defendant could not be held liable under E *5+- for monetary damages7 !-" assistant district attorneys and district attorney were absolutely immune from personal liability for actions taken in initiating pro"e5ut&on7 !/" Gleventh ;mendment protected district attorney>s office from E *5+- liability while it acted as state representative in making decision to pro"e5ute7 and !," allegations stated claim under E *5+- against HO)8, its commissioner, and Internal ;ffairs 8ivision. :otions granted in part7 denied in part.

4 -edera/ Court"8eclaratory <udgment in Ceneral -edera/ Court"In unctions in Ceneral Heither prosecutorial 8ad 6a&t) nor extraordinary circumstances exception to doctrine of Younger abstention applied so as to require equitable intervention by federal court in city police officers> suit seeking in unctive and declaratory relief on ground that state criminal indictment against them was improperly derived from immuniFed testimony7 even if immuniFed testimony was used to acquire indictment, police officers had not been prevented from asserting their constitutional claims in state proceeding and had failed to prove what it would be more appropriate for federal court, instead of state court, to conduct astigar hearing. 3ases that cite this headnote

-edera/ Court")rocedure as to ;bstention7 4eserving or 4etaining <urisdiction

3ounty district attorney>s office !8;D" had heavy burden to prove that criminal indictment was not o8ta&ned against city police officers from immuniFed testimony so as to render Younger abstention doctrine applicable to bar officers> claims for in unctive and declaratory relief7 8;D had to show that its evidence was derived from legitimate source wholly independent of the compelled testimony. 3ases that cite this headnote

# -edera/ Court"8eclaratory <udgment in Ceneral -edera/ Court"In unctions in Ceneral Gxception to doctrine of Younger abstention based upon prosecutor>s 8r&ng&ng criminal indictment without rea"ona8/e expe5tat&on of o8ta&n&ng +a/&d 5on+&5t&on was not applicable to city police officers> claims seeking in unctive and declaratory relief on ground that state criminal indictment against them was improperly derived from immuniFed testimony, $$where police officers did not plead that prosecutors 8roug)t case without rea"ona8/e expe5tat&on of o8ta&n&ng 5on+&5t&on or to retaliate against them for, or discourage exercise of constitutional rights, but, at most, that defendants had deliberately violated officers> civil rights to 8r&ng their alleged criminal conduct to light. 3ases that cite this headnote 17 C&+&/ R&g)t"Gmployment )ractices

;llegation that official policy or custom of Hew Oork )olice 8epartment deprived city police officers of their constitutional rights and that police department as municipal policymaker should have known that inadequate training or supervision was so likely to result in violation of constitutional rights that policymakers could reasonably be said to have been deliberately indifferent stated claim under E *5+- for violation of police officers> constitutional rights as result of criminal indictment against them. /0 U.S.3.;. E *5+-. 3ases that cite this headnote %efore the 3ourt are the defendants> motions to dismiss the complaint under the abstention doctrine of Younger v! Harris" /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225 !*5.*", or, in the alternative, for failure to state a claim upon which relief can be granted, pursuant to 4ule *0!b"!2" of the (ederal 4ules of 3ivil )rocedure !I(43)J". )laintiffs,

who were all police officers in the Hew Oork 3ity )olice 8epartment !IHO)8J", commenced this action pursuant to Sections *5+- and *5+, of #itle /0 of the United States 3ode !IU.S.3.J", alleging violations of their rights protected under the (ifth and (ourteenth ;mendments to the United States 3onstitution. (or the reasons set forth below, defendants> motions are granted in part and denied in part.

2ACA,R7U 3 Dn September 02, *556, the plaintiffs conducted a search in a low'income housing pro ect in Hew Oork 3ity, looking for a police radio allegedly stolen by drug dealers. #he officers claim to have been acting on a tip from a confidential informant that a certain drug'selling gang located in the housing pro ect possessed the radio. ;fter the police probe, which failed to find the radio, the tenants whose apartments had been searched filed a complaint against the plaintiffs with the 3ivilian 3omplaint 4eview %oard !I334%J".* 1ater that day, a security officer working at the housing pro ect found the radio and returned it to the plaintiffs> precinct. $++- Several days after the search, the :anhattan Horth (ield Internal ;ffairs Unit !I:H(I;UJ" began an investigation, which included the confiscation of the plaintiffs> memorandum books. #he Hew Oork 3ounty 8istrict ;ttorney>s Dffice !Ithe 8;DJ" also commenced an investigation, but it revealed little as the plaintiffs all asserted their (ifth ;mendment right. In an official memorandum sent to the HO)8 on <anuary **, *55*, the 8;D announced that it would not criminally pro"e5ute the plaintiffs and that the HO)8 should proceed administratively against the plaintiffs. Dn <anuary *+, *55*, plaintiff (eerick was interrogated pursuant to )atrol Cuide **+'5 !I).C. **+'5J" at the :H(I;U. ).C. **+'5 confers a form of testimonial or use immunity resulting from any statements, evidence, or leads derived from that interrogation. 8efendant (oley of the HO)8, allegedly monitored the interrogation, while defendants 1aine of the Internal ;ffairs 8ivision of the HO)8 !II;8J" and 8i:artini of the :H(I;U were also present. 8efendant (oley monitored ).C. **+'5 interrogations of plaintiffs 4osario, SchultF, and 8e?ito at the :H(I;U later that week. )laintiff (eerick was interrogated again in :arch of *55*. In mid';pril, *55*, all plaintiffs were served with 8epartmental 3harges and Specifications. Dn :arch 06, *550, the 8;D empaneled a grand ury, which indicted the plaintiffs on -6 counts arising out of the September 02, *556 search. #hese counts included second degree burglary, second degree unlawful imprisonment, second degree coercion, and second degree grand larceny. )laintiffs sought to en oin the pro"e5ut&on by filing a petition pursuant to ;rticle .+ of the Hew Oork 3ivil )ractice 1aws and 4ules .+ in the (irst 8epartment of Hew Oork>s ;ppellate 8ivision. In their ;rticle .+ petition, plaintiffs requested the ;ppellate 8ivision to consider only the relevant provisions of the Hew Oork State 3onstitution, citing their desire to preserve their federal claims for a Section *5+- action. #he petition was denied.0 )laintiffs also 8roug)t this civil rights action against the udge currently handling the state criminal case7 the 8;D, the head of its office, and two members thereof7 and the HO)8, its commissioner, certain employees, and the I;8. #he gravamen of the plaintiffs> complaint is that the state criminal indictment filed against them is improperly derived from the immuniFed testimony, and therefore violates their constitutional privilege against self' incrimination. #hey request that this 3ourt@ !*" en oin the criminal pro"e5ut&on 8roug)t against them in the Supreme 3ourt of Hew Oork7 !0" declare them immune from state criminal pro"e5ut&on7 !-" reinstate them in the Hew Oork 3ity )olice 8epartment with back pay7 !/" order the HO)8 to appoint plaintiff (eerick to the rank of 3aptain7 !," en oin future attempts at securing indictments via immuniFed testimony under ).C. **+'57 and !2" direct defendants to train and supervise their employees concerning the proper use of the ).C. interrogation provisions. $++/ 0 Gxceptions to the doctrine of Younger abstention are quite narrow. Gven irreparable in ury, unless Iboth great and immediate,J is insufficient to warrant an exception to this policy. See Younger" /6* U.S. at /2, 5* S.3t. at

.,*. (or instance, Ithe cost, anxiety, and inconvenience of having to defend against a single criminal pro"e5ut&onJ does not establish the sort of irreparable in ury that would permit federal interference in the state proceedings. Id! #he Younger 3ourt set forth an exception in its distinguishing of #om$rowski v! Pfister" -+6 U.S. /.5, +, S.3t. ***2, */ 1.Gd.0d 00 !*52,", in which it had approved federal intervention in an ongoing state pro"e5ut&on. #he Younger 3ourt noted that in #om$rowski" prosecutors had harassed the appellants and had attempted to discourage them and their supporters from vindicating the constitutional rights of ;frican';merican citiFens in 1ouisiana. See Younger" /6* U.S. at /+, 5* S.3t. at .,0. Such harassment Isufficiently establishMedN the kind of irreparable in ury, above and beyond that associated with the defense of a single pro"e5ut&on 8roug)t in good faith, that had always been considered to ustify federal intervention.J Id! #he 3ourt has since defined a finding of prosecutorial 8ad 6a&t) as requiring a showing that the charges against the plaintiffs were instituted with Ino genuine expectationJ of their eventual success, but only to discourage the exercise of the plaintiffs> constitutional rights. See id!% &llee v! 'edrano" /*2 U.S. +60, +*5, 5/ S.3t. 0*5*, 0060, /6 1.Gd.0d ,22 !*5./". - In addition to this exception for prosecutorial 8ad 6a&t), the Younger 3ourt also left room for an exception where Iextraordinary circumstancesJ exist such that the Inecessary irreparable in ury can be shown even in the absence of the usual prerequisites of 8ad 6a&t) and harassment.J Id! at ,/, 5* S.3t. at .,, . $$;n example of such extraordinary circumstances that would warrant federal equitable relief would be when state officials seek to enforce a law that is Iflagrantly and patently violative of express constitutional prohibitions.J Younger" /6* U.S. at ,/',,, 5* S.3t. at .,,. / 8espite the expansive reach of Younger abstention, plaintiffs assert that their circumstances warrant an exception to Younger! (irst, they maintain that prosecutorial 8ad 6a&t) exists in this case. In particular, they claim that the 8;D used their immuniFed testimony to procure the indictment against them. #hey point to the 8;D>s determination in <anuary of *55* not to pro"e5ute them and its suggestion that the HO)8 proceed administratively. )laintiffs claim that the 8;D made this suggestion knowing that there were no policies or procedures in place that would protect and shield the plaintiffs> immuniFed testimony from the future examination by the 8;D. #hey also assert that the 8;D knew that it would have access to :H(I;U and I;8 case folders, investigatory materials, and copies of the work sheets and investigative reports following the ).C. **+'5 interrogations. In the alternative, plaintiffs maintain that these same facts constitute the Iextraordinary circumstancesJ envisioned by the Younger 3ourt to require equitable intervention by the federal courts. , #he 3ourt disagrees. #here is no dispute that the plaintiffs were entitled to use immunity for the statements made in connection with the ).C. **+'5 interrogations. See astigar v! (nited States" /62 U.S. //*, /26'2*, 50 S.3t. *2,-, *22/'2,, -0 1.Gd.0d 0*0 !*5.0". 8efendants concede this. Hevertheless, even if immuniFed testimony was used to acquire the indictment against plaintiffs'an accusation the defendants steadfastly deny'plaintiffs> claims for in unctive and declaratory relief still would fail under the Younger abstention doctrine. )laintiffs cannot allege that they have been prevented from asserting their constitutional claims pursuant to astigar) in the state proceeding, the 8;D has already consented to a astigar hearing, in which the 8;D will have to show that the evidence used to o8ta&n the indictment was o8ta&ned from sources independent of the immuniFed testimony. See astigar" /62 U.S. at /26'2*, 50 S.3t. at *22/'2,.- #he burden upon the 8;D to $++, prove that the indictment was not o8ta&ned from immuniFed testimony is Iheavy,J see id! at /2*, 50 S.3t. at *22,, as the 8;D must show that its evidence Iis derived from a legitimate source wholly independent of the compelled testimony.J Id! at /26, 50 S.3t. at *22/'2,. (urthermore, plaintiffs have failed to prove why it would be more appropriate for this federal court, instead of the state court, to conduct such a hearing. $$#hey have not alleged that <ustice Sudolnik, who is presiding over the state proceeding and who is named only as a nominal defendant, see ;mended 3omplaint V 2, is somehow biased, as was the state optometry board that the Supreme 3ourt en oined in *i$son v! Berr+hill" /** U.S. ,2/, ,+6'+*, 5- S.3t. *2+5, *25+'55, -2 1.Gd.0d /++ !*5.-". In ugler v! Helfant" /0* U.S. **., 5, S.3t. *,0/, // 1.Gd.0d *, !*5.,", $$the Supreme 3ourt held that abstention was appropriate where plaintiff, a municipal court udge, sought to en oin a state pro"e5ut&on against him for obstruction of ustice that allegedly arose from his coerced testimony before a grand ury. See ugler" /0* U.S. at *-6'-*, 5, S.3t. at *,--'-/ . #he ugler 3ourt found that since plaintiff had an opportunity to raise his constitutional claims in the underlying state criminal pro"e5ut&on and since he failed to

allege that no trial udge in the pro"e5ut&ng state could impartially decide his case , the policy of equitable restraint required abstention. See id! at *0/, 5, S.3t. at *,-6'-*. ;s in ugler" plaintiffs here fail to rebut the presumption that Iordinarily a pending state pro"e5ut&on provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.J Id! 2 $$In addition, the courts that have held that an exception to Younger was warranted have found that the prosecutors 8roug)t the cases without a rea"ona8/e expe5tat&on of o8ta&n&ng a +a/&d 5on+&5t&on, see" e!g!" &llee" /*2 U.S. at +*5, 5/ S.3t. at 00607 ugler" /0* U.S. at *02 n. 2, 5, S.3t. at *,-* n. 2, or initiated them to retaliate for or discourage the exercise of constitutional rights. See" e!g!" #om$rowski" -+6 U.S. at /5., +, S.3t. at **02'0. !pro"e5ut&on 8roug)t to deter plaintiffs> civil rights efforts"7 $$Fit,gerald v! Peek" 2-2 (.0d 5/-, 5/, !,th 3ir." !per curiam", cert! denied" /,0 U.S. 5*2, *6* S.3t. -6,*, 25 1.Gd.0d /06 !*5+*" !pro"e5ut&on 8roug)t to deter filing of civil suit against state officers"7 -ilson v! Thompson" ,5- (.0d *-.,, *-++ !,th 3ir.*5.5" !pro"e5ut&on 8roug)t to harass and punish plaintiffs for exercising first amendment rights against state officials"7 Shaw v! *arrison" /2. (.0d **-, *00 !,th 3ir.", cert! denied" /65 U.S. *60/, 5- S.3t. /2., -/ 1.Gd.0d -*. !*5.0". )laintiffs have not pled the former, and, as for the latter, they have at most pled that defendants have deliberately violated their civil rights to 8r&ng their alleged criminal conduct to light. . (inally, plaintiffs> reliance upon .owe v! *riffin" 2.2 (.0d ,0/ !**th 3ir.*5+0" , in making their assertion that the defendants alleged conduct is per se a 8ad 6a&t) pro"e5ut&on is unfounded. Gven though .owe held that an indictment that violated a prior immunity agreement constituted a I 8ad 6a&t)J pro"e5ut&on, .owe is distinguishable from the present case. .owe involved transactional, not use, immunity. / %ecause transactional immunity contemplates complete protection from pro"e5ut&on for the offense to which the compelled testimony relates, see astigar" /62 U.S. at /,-, 50 S.3t. at *22*, the pro"e5ut&on of the .owe plaintiff was in 8ad 6a&t) per se! In the case at bar, however, plaintiffs received only use immunity for their ).C. **+'5 statements, , and thus pro"e5ut&ng them could not be 8ad 6a&t) per se! Instead, plaintiffs have presented a factual question of whether the 8;D used their immuniFed statements to secure the indictment. )ursuant to astigar" /62 U.S. at /26'2*, 50 S.3t. at *22/'2,, they have asserted their constitutional $++2 right to have such a determination made by the presiding state court udge. She is the proper arbiter to decide this dispute. + )laintiffs> claims for in unctive and declaratory relief fail to fit within either of Younger =s narrow exceptions and therefore are dismissed pursuant to the doctrine of Younger abstention. Civen that the application of this doctrine to claims for money damages is unwarranted, see #eakins" /+/ U.S. at 060, *6+ S.3t. at ,05, the 3ourt will now address plaintiffs> remaining claims for monetary damages. 2. Defendants FRCP 12(b)(6) Motions 1. :)e App/&5a8/e Lega/ Standard In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the 3ourt must view the complaint in the light most favorable to the plaintiff. Scheuer v! .hodes" /*2 U.S. 0-0, 0-., 5/ S.3t. *2+-, *2+., /6 1.Gd.0d 56 !*5./"7 Yoder v! /rthomolecular 0utrition Inst!" Inc!" .,* (.0d ,,,, ,20 !0d 3ir.*5+,". :oreover, the 3ourt must accept the factual allegations set forth in plaintiff>s complaint as true. See 1ooper v! Pate" -.+ U.S. ,/2, +/ S.3t. *.--, *0 1.Gd.0d *6-6 !*52/". ;ccordingly, a motion to dismiss for failure to state a claim should be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See 1onle+ v! *i$son" -,, U.S. /*, /,'/2, .+ S.3t. 55, *6*'60, 0 1.Gd.0d +6 !*5,." 2. ;/a&nt&66"B Se5t&on 1983 C/a&!" 5 #o sustain a cause of action pursuant to /0 U.S.3. E *5+-,2 plaintiff must show that the conduct complained of was committed by a person under the color of state law and that this conduct deprived plaintiff of rights, privileges or immunities secured by the 3onstitution or laws of the United States. Parratt v! Ta+lor" /,* U.S. ,0., ,-,, *6*

S.3t. *56+, *5*0'*-, 2+ 1.Gd.0d /06 !*5+*", overruled on other grounds" #aniels v! -illiams" /./ U.S. -0., *62 S.3t. 220, ++ 1.Gd.0d 220 !*5+2". In this case, plaintiffs have pled a direct violation of their constitutional rights and a conspiracy to violate these rights, and they may seek money damages for both causes of action. *6 ;ddressing each defendant, all claims against <ustice Sudolnik have been dismissed, as plaintiffs named her only as a nominal defendant. See ;mended 3omplaint V 2. ;s such, <ustice Sudolnik cannot be held liable for monetary damages. ***0*- 8efendants Stevens and Strauss, both ;ssistant 8istrict ;ttorneys with the 8;D, and defendant 8istrict ;ttorney 4obert :orgenthau are absolutely immune from personal liability for actions taken in initiating a pro"e5ut&on. See Im$ler v! Pachtman" /0/ U.S. /65, /-*, 52 S.3t. 5+/, 55,, /. 1.Gd.0d *0+ !*5.2". )laintiffs> brief does not take issue with this proposition. #herefore, plaintiffs> claims against these defendants in their individual capacities are dismissed. ;s for claims against defendants Stevens and Strauss in their official capacities, they are also dismissed. )laintiffs assert that defendants Stevens and Strauss were municipal policymakers. Hevertheless, Ionly actions by officials relatively high up in the municipal hierarchy will produce municipal liability.J -alker v! 1it+ of 0ew York" 5./ (.0d 05-, 052'5. !0d 3ir.*550" . #he ;mended 3omplaint itself refers to the defendants as defendant :orgenthau>s Isubordinates.J See ;mended 3omplaint V -6!e". #he assistants> decisions to seek an indictment against the plaintiffs, and to proceed with the grand ury presentation in a particular fashion were individual exercises of udgment and did not reflect municipal policy. (urthermore, as subordinates, they could not be responsible for any Ifailure to train and supervise,J such $++. as plaintiffs repeatedly proclaim was the cause for the alleged violations herein. */ :onetary claims against defendant :orgenthau in his official capacity and defendant 8;D are also dismissed. #he causes of action against defendants :orgenthau and the 8;D arise from alleged decisions that were inextricably tied to the specific decision to pro"e5ute. &hen the 8;D makes such decisions, it is acting in a quasi' udicial capacity and thus is representing the state, not the county. Bae, v! Henness+" +,- (.0d .-, .. !0d 3ir.*5++", cert! denied" /++ U.S. *6*/, *65 S.3t. +6,, *60 1.Gd.0d .52 !*5+5"7 *entile v! 1ount+ of Suffolk" 502 (.0d */0, *,0 n. , !0d 3ir.*55*"7 -alker" 5./ (.0d at -6*. #hus, the **th ;mendment protects the 8;D from Section *5+liability while it acts as a state representative. *, )laintiffs argue that the Second 3ircuit>s -alker decision precludes dismissal of their claims against defendants :orgenthau and 8;D. #he 3ourt disagrees for two reasons. (irst, as mentioned above, -alker recogniFes that the 8;D acts as a state body when making its specific decisions to pro"e5ute. See -alker" 5./ (.0d at -6*. Second, the facts in -alker" which found viable a Section *5+- claim for municipal liability arising from a 8;D>s alleged failure to train or supervise, are far different from the circumstances before this 3ourt. $$-alker involved an assistant district attorney in Kings 3ounty whose per ury and withholding of Brad+ evidence resulted in the plaintiff>s spending *5 years of his life in prison for a murder that he did not commit . See 5./ (.0d at 05/. #he present case, however, involves the alleged use of ).C. **+'5 testimony that is entitled to use immunity. Unlike Brad+ and per ury issues, which may arise in every state criminal case, use'immunity concerns arising from ).C. **+'5 testimony are rarely at issue in criminal proceedings. 1f! 2ast 1oast 0ovelt+ 1o! v! 1it+ of 0ew York" +65 (.Supp. 0+,, 055 !S.8.H.O.*550" !distinguishing -alker and dismissing claims for municipal liability based upon 8;D misconduct due to relative infrequency of possible prosecutorial misconduct involving Section 0.6.66 of the Hew Oork )enal 1aw in comparison with Brad+ obligations". #his 3ourt>s failure to distinguish between the alleged misuse of ).C. **+'5 testimony and an assistant district attorney>s failure to comply with Brad+ obligations would substantially undercut the 8;D>s traditional prosecutorial and state immunities, as most challenges to prosecutorial conduct would then be transformed into failure'to'supervise'or'train claims. #herefore, the 3ourt dismisses the causes of action for monetary damages against defendants :orgenthau and the 8;D. *2*. )laintiffs> pleading, however, is sufficient to sustain a claim for monetary damages against the police department defendants. )laintiffs have pled sufficient facts to confer liability upon defendant police officers, who lack the absolute immunity conferred upon defendants Stevens and Strauss. (urthermore, plaintiffs> claims against defendants %rown, HO)8, and I;8 also survive defendants> motions to dismiss. Unlike defendants :orgenthau

and the 8;D, defendants %rown, HO)8, and I;8 are undoubtedly municipal policymakers. In the amended complaint, plaintiffs allege that an official policy or custom of the HO)8 deprived them of their constitutional rights, satisfying 'onell v! #ep3t of Social Services" /-2 U.S. 2,+, 25/, 5+ S.3t. 06*+, 06-., ,2 1.Gd.0d 2** !*5.+" . #he plaintiffs also allege, in accordance with 1it+ of 1anton v! Harris" /+5 U.S. -.+, -++, *65 S.3t. **5., *06/, *61.Gd.0d /*0 !*5+5", that the HO)8, as a municipal policymaker, should have known that such inadequate training or supervision was Iso likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.J In particular, plaintiffs have pled that the HO)8 failed to train or supervise its officers regarding the handling of ).C. **+'5 interrogations and the need to separate the investigative and interrogative agencies within the HO)8 and the 8;D. *+ (inally, plaintiffs also claim that the HO)8 and 8;D defendants conspired to violate plaintiffs> constitutional rights, also in violation of Section *5+-. %ecause one may conspire with another who is immune from pro"e5ut&on, see $+++ #ennis v! Sparks" //5 U.S. 0/, 0., *6* S.3t. *+-, *+2, 22 1.Gd.0d *+, !*5+6" , and plaintiffs have adequately pled a cause of action for conspiracy, the Section *5+- conspiracy claim survives as to the HO)8 defendants. C. Plaintiffs Section 1985 Claim *5 (or plaintiffs> E *5+,!-" claim to be sustained, plaintiffs must allege with sufficient specificity the existence both of a conspiracy to prevent or to hinder the state authorities from giving or securing to all persons within the state or territory equal protection of the laws and of a racial or other class'based discriminatory animus behind the conspirator>s actions. See Bra+ v! &lexandria -omen3s Health 1linic" ,62 U.S. 02-, '''', **- S.3t. .,-, .,2, *00 1.Gd.0d -/, 2* U.S.1.&. /6+6, /6+* !*55-"7 (nited Brotherhood of 1arpenters 4 5ones" Local 678 v! Scott" /2U.S. +0,, *6- S.3t. --,0, .. 1.Gd.0d *6/5 !*5+-"7 *riffin v! Breckenridge" /6- U.S. ++, 5* S.3t. *.56, 05 1.Gd.0d --+ !*5.*". I; complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.J Sommer v! #ixon" .65 (.0d *.-, *., !0d 3ir.", cert! denied" /2/ U.S. +,., *6/ S.3t. *.., .+ 1.Gd.0d *,+ !*5+-"7 see also Barr v! &$rams" +*6 (.0d -,+, -2- !0d 3ir.*5+.". 06 )laintiffs> Section *5+, claims must be dismissed for failure to state a claim upon which relief may be granted. )laintiffs fail to establish the existence of any class'based discriminatory animus towards them. (urthermore, their allegations of a conspiracy are an example of the sort of conclusory charges that have been held to be fatal to a Section *5+, claim.

C7 CLUS<7 (or the reasons set forth above, defendants> motions are granted in part and denied in part. )ursuant to #eakins" /+/ U.S. at 060, *6+ S.3t. at ,05, plaintiffs claims pursuant to Section *5+- for monetary damages against defendants %rown, HO)8, I;8, 8i:artini, (oley, Harvey, :iller, and 1aine are stayed until the completion of the state criminal proceedings. ;ll other claims against all other defendants are dismissed. #he 3ourt orders that this case be placed on its suspense docket. #he parties are to report in writing to this 3ourt concerning the status of the state action by <uly *, *55-. S7 7R3ERE3. -&t?gera/d +. ;ee>, #3# -.2d 943 $5t) C&r.$,a.' .an 14, 1981'

!ad faith harass ent for !ringing a cri inal action for critici1ing pu!lic officials
;ction was brought to en oin state court prosecution allegedly brought in bad faith to harass and punish plaintiffs,

indicted for embracery and terroristic threats, for having exercised their (irst ;mendment rights in criticiFing certain county officials. #he United States 8istrict 3ourt for the Horthern 8istrict of Ceorgia, &illiam 3. DLKelley, <., permanently en oined prosecution, and defendant appealed. #he 3ourt of ;ppeals held that@ !*" evidence supported finding that prosecution was brought for harassment and retaliation and would not have been brought but for improper influence exerted on prosecutor by certain udges, and !0" defendant was not denied any due process rights and was not unfairly pre udiced because he was represented at preliminary hearing by an attorney who also testified as a witness. ;ffirmed. &est Headnotes 011 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases ; showing of bad'faith prosecution presents a narrow exception to the doctrine of abstention which will ustify federal interference in a pending state court criminal proceeding. 0+ U.S.3.;. EE *-/-!-", 00+-7 /0 U.S.3.;. E *5+-. 021 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases ; showing of bad'faith prosecution or harassment is equivalent to a showing of irreparable in ury under Younger, and irreparable in ury independent of the bad'faith prosecution need not be established before a federal court may en oin a pending state court criminal proceeding. 0+ U.S.3.;. E 00+-. 031 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases #hreat of multiple or repeated prosecutions is not necessary to establish bad'faith prosecution sufficient to ustify federal interference in a pending state court criminal proceeding. 0+ U.S.3.;. E 00+-. 041 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction

*62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases It is not necessary to prove that prosecution could possibly result in a valid conviction before a federal court will interfere in a pending state court criminal proceeding brought in bad faith or for purpose of harassment. 0+ U.S.3.;. E 00+-. 051 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases )ermanently en oining state prosecution of plaintiffs on pending indictments charging embracery and terroristic threats was proper on showing of bad'faith prosecution, in that prosecution was brought for purpose of harassment and retaliation and would not have been brought but for improper influence exerted on prosecutor by certain udges to seek the indictments allegedly to punish plaintiffs for having exercised their (irst ;mendment rights in criticiFing certain public officials. 0+ U.S.3.;. E 00+-7 U.S.3.;.3onst. ;mend. *. 0#1 Con"t&tut&ona/ La* 92 4487

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!C" )articular Issues and ;pplications 50PP?II!C"0, Dther )articular Issues and ;pplications 50k//.5 Special, Summary, or )rovisional 4emedies and )roceedings 50k//+. k. )reliminary In unction7 #emporary 4estraining Drder. :ost 3ited 3ases !(ormerly 50k-*0!-"" Handling of action to en oin state court prosecution allegedly brought in bad faith did not deprive defendant prosecutor of any due process rights as temporary restraining order notified defendant of preliminary hearing in accordance with governing rule, defendant did not ob ect to timing of the hearing and re ected offer of more time and he was not unfairly pre udiced because he was represented at the hearing by an attorney who also testified as a witness as he knew at the time he selected his attorney that such attorney, who was also assistant district attorney handling state court prosecution of plaintiffs, was likely to be called as a witness. (ed.4ules 3iv.)roc. 4ule 2!d", 0+ U.S.3.;.7 U.S.3.;.3onst. ;mends. ,, */7 0+ U.S.3.;. E 00+-. )laintiffs, Grnest %illy and :arilyn (itFgerald, brought suit in federal district court to en oin state court prosecution allegedly brought in bad faith for purposes of harassing and punishing plaintiffs for having exercised their first amendment rights in criticiFing certain public officials in 8eKalb 3ounty. $$#he district court entered a temporary restraining order and, following a two'day hearing, entered a final order permanently en oining prosecution of the (itFgeralds on pending indictments charging embracery and terroristic threats. $$&e affirm. <urisdiction over this suit is properly predicated on /0 U.S.3.;. s *5+- and 0+ U.S.3.;. s *-/-!-". See 8uncan v. )ereF, //, (.0d ,,., ,26 !,th 3ir.", cert. denied, /6/ U.S. 5/6, 50 S.3t. 0+0, -6 1.Gd.0d 0,/ !*5.*". Section *5+is within the Iexpressly authoriFedJ exception of the federal anti'in unction statute, 0+ U.S.3.;. s 00+-. :itchum v. (oster, /6. U.S. 00,, 50 S.3t. 0*,*, -0 1.Gd.0d .6, !*5.0".

#he facts of this case are presented in detail in the district courtLs opinion and need not be repeated here. It is sufficient to note that a thorough examination of the record requires the conclusion that the district courtLs finding that the prosecution was brought in bad faith for purposes of harassment was not clearly erroneous. M*NM0NM-N It is well established that a showing of bad faith prosecution presents a narrow exception to the doctrine of abstention which will ustify federal interference in a pending state court criminal proceeding. See :oore v. Sims, //0 U.S. /*,, /0/, 55 S.3t. 0-.*, 0-.., 26 1.Gd.0d 55/ !*5.5"7 Huffman v. )ursue, 1td., /06 U.S. ,50, 2**, 5, S.3t. *066, *0**, /- 1.Gd.0d /+0 !*5.,"7 Oounger v. Harris, /6* U.S. -., /5, 5* S.3t. ./2, .,-, 0. 1.Gd.0d 225 !*5.*"7 8ombrowski v. )fister, -+6 U.S. /.5, +, S.3t. ***2, */ 1.Gd.0d 00 !*52,"7 &ilson v. #hompson, ,5- (.0d *-.,, *-+* !,th 3ir. *5.5"7 Shaw v. Carrison, /2. (.0d **-, **5'00 !,th 3ir.", cert. denied, /65 U.S. *60/, 5- S.3t. /2., -/ 1.Gd.0d -*. !*5.0"7 8uncan v. )ereF, //, (.0d at ,26. ; showing of bad faith or harassment is equivalent to a showing of irreparable in ury under Oounger, and irreparable in ury independent of the bad faith prosecution need not be established. &ilson v. #hompson, ,5- (.0d at *-+*'+07 Shaw v. Carrison, /2. (.0d at *06. :oreover, although multiple prosecutions of at least :r. (itFgerald were pending, the threat of multiple or repeated prosecutions is not necessary to establish bad faith prosecution. &ilson v. #hompson, ,5- (.0d at *-+*. (945 M/NM,N Hor is it necessary for plaintiff to prove that the prosecution could not possibly result in a valid conviction. In &ilson v. #hompson, decided after the in unction involved herein was entered, this court enunciated a test which permits a state criminal proceeding to be en oined if the plaintiff establishes that the conduct allegedly retaliated against or sought to be deterred is constitutionally protected and that the stateLs bringing of the criminal prosecution is motivated at least in part by a purpose to retaliate against or deter that conduct , and the state fails to show that it would have decided to prosecute even had the impermissible purpose not been considered. ,5- (.0d at *-+.. In this case, the evidence supports the finding that the prosecution was brought for the purposes of harassment and retaliation and would not have been brought but for the improper influence exerted on the prosecutor by certain 8eKalb udges to seek the indictments. ; bad faith showing of this type will ustify an in unction regardless of whether valid convictions conceivably could be obtained. Cu//en +. -/&egner, 18 -.3d 9#, 89 Ed. La* Rep. 108# $2nd C&r.$ .Y.',-e8 28, 1994'

<ho pson v. 6lorida Bar, =27 6.)upp.2d $27' 82&&%; >estin v. ?cDaniel, %7& 6.)upp. $=73 8$99$; @ositive outco e. Aondon v. Dorney 2&&8 >A 3$39'3
$- ; showing that a pro"e5ut&on was 8roug)t in retaliation for or to discourage the exercise of constitutional rights Iwill ustify an in unction regardless of whether +a/&d 5on+&5t&on" conceivably could be o8ta&ned.J Fit,gerald v! Peek" 2-2 (.0d 5/-, 5/, !,th 3ir.*5+*" !emphasis added". #he state does not have any legitimate interest in pursuing such a pro"e5ut&on7 IMpNerhaps the most important comity rationale of Younger deference'that of respect for the State>s legitimate pursuit of its substantive interests'is therefore inapplicable.J -ilson v! Thompson" ,5- (.0d *-.,, *-+- !,th 3ir.*5.5" !citations omitted". )laintiff has alleged his pro"e5ut&on in the state court was based, at least in part, on false charges and affidavits made by Clenn 4eece and Sheriff 8orney. However, )laintiff has not indicated the state pro"e5ut&on is an effort to circumvent any constitutional rights he was asserting or was begun with a vindictive motive. In addition to Younger" the .ooker9Feldman doctrine states that district courts do not have sub ect matter

urisdiction over challenges to state court decisions in udicial proceedings. .ooker v! Fidelit+ Trust 1o!" 02- U.S. /*-, /*2 !*50-"7 #istrict of 1olum$ia 1ourt of &ppeals v! Feldman" /26 U.S. /20, /.2 !*5+-". #he only court with urisdiction to review decisions of state courts is the United States Supreme 3ourt. ; federal district court has urisdiction over general constitutional challenges if these claims are not inextricably intertwined with the claims asserted in state court. ; claim is inextricably intertwined if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. In other words, .ooker9Feldman precludes a federal action if the relief requested in the federal action would effectively reverse the state court decision or void its ruling. 1harchenko v! 1it+ of Stillwater" /. (.-d 5+*, 5+- !+th 3ir.*55," !citations omitted". See also Bechtold v! 1it+ of .osemount" *6/ (.-d *620, *62,'22 !+th 3ir.*55.".

?c*or ic" v. 6arrar 2&&$ >A $'=7%97 )i ilar facts. traffic stop >illia s v. 5overn ent 2&&8 wl =$'2$8$ )pecial circu stances for inapplica!ility of :ounger A!stention shown when state is inco petent !y reason of !ias to ad#udicate the issues pending !efore it.
In ugler v! Helfant" /0* U.S. **., 5, S.3t. *,0/, // 1.Gd.0d *, !*5.," , the Supreme 3ourt fleshed out the extraordinary circumstances exception@ Dnly if =extraordinary circumstances> render the state court incapable of fairly and fully ad udicating the federal issues before it, can there be any relaxation of the deference to be accorded to the state criminal process. #he very nature of =extraordinary circumstances,> of course, makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable in ury as to warrant intervention in state criminal proceedings. %ut whatever else is required, such circumstances must be =extraordinary> in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation. Id! at *0/. I&hile ugler spoke in the context of criminal pro"e5ut&on", the same standard applies in the civil context.J #iamond :#;" 0+0 (.-d at 06* !citing 'oore v! Sims" //0 U.S. /*,, /--, 55 S.3t. 0-.*, 26 1.Gd.0d 55/ !*5.5"". #he Supreme 3ourt has found extraordinary circumstances to exist on only two occasions@ !*" Iwhen a state statute is flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply itJ7 and !0" Iwhen the state administrative agency was incompetent by reason of bias to ad udicate the issues pending before it M.NJ Id! !quotation marks and citations omitted". &illiams does not invoke the first example of an exceptional circumstance articulated in ugler! Instead, &illiams claims that the %oard is biased against him.*6 I%ias exists where a court has pre udged, or reasonably appears to have pre udged, an issue.J enneall+ v! Lungren" 52. (.0d -05, --- !5th 3ir.*550" !quotation marks and citation omitted". IM#Nhe baseline showing of bias necessary to trigger Younger3s escape mechanism requires the plaintiff to offer some evidence that abstention will eopardiFe his due process right to an impartial ad udication.J Brooks v! 0ew Hampshire Supreme 1ourt" +6 (.-d 2--, 2/6 !*st 3ir.*552" !citations omitted". I#o implicate due process, claims of general institutional bias must be harnessed to a further showing, such as a potential conflict of interest, or a pecuniary stake in the outcome of the litigatio nM.NJ Id! !internal citations omitted". (urthermore, a litigant alleging bias $+ must overcome a presumption of honesty and integrity in those serving as ad udicators7 and MheN must convince Mthe courtN that, under a realistic appraisal of psychological tendencies and human

weakness, conferring investigative and ad udicative powers on the same individuals poses such a risk of actual bias or pre udgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented. -ithrow v! Larkin" /0* U.S. -,, /., 5, S.3t. */,2, /- 1.Gd.0d .*0 !*5.,". In support of his bias claim, &illiams contends that he is in direct competition with :ichelle 8iFon !I8iFonJ", another St. 3roix medical doctor and a member of the %oard during the disciplinary proceedings against him. &illiams argues that the %oard overlooked or ignored that conflict and improperly permitted 8iFon to participate in those proceedings. &illiams relies on the Supreme 3ourt>s decision in *i$son v! Berr+hill" /** U.S. ,2/, 5- S.3t. *2+5, -2 1.Gd.0d /++ !*5.-". In *i$son" the ;labama Dptometric ;ssociation !the I;D;J" filed charges against various optometrists with the ;labama %oard of Dptometry !the I;%DJ", the statutory body with authority to issue, suspend, and revoke licenses for the practice of optometry. #he ;D; alleged that the optometrists had engaged in unprofessional conduct, as defined by ;labama statute, and therefore were practicing their profession unlawfully. #he ;D; noticed a hearing on the allegations. %efore the hearing date, the optometrists sued the ;%D and the ;D; in federal district court, alleging /0 U.S.3. E *5+- violations and seeking in unctive relief on the ground that the statutory scheme regulating the practice of optometry was unconstitutional. ;t bottom, the optometrists alleged that the %oard was biased. ; three' udge district court panel held that Younger abstention was inappropriate because Ithe administrative process was so defective and inadequate as to deprive the plaintiffs of due process of law.J *i$son" /** U.S. at ,.6. Specifically, the district court first found that the ;%D, Iwhich acts as both prosecutor and udge in delicensing proceedings, had previously 8roug)t suit against the plaintiffs on virtually identical charges in the state courts.J Id! at ,.*. Second, the district court found that ;%D members would receive a windfall in business if the plaintiff optometrists were delicensed. In other words, the district court found that the ;%D members> personal financial stake disfavored abstention. (inally, the district court regarded the ;%D Ias a suspect ad udicative body ..., because only members of the M;D;N could be members of the M;%DN, and because the M;D;N excluded from membership optometrists such as the plaintiffs who were employed by other persons or entities.J Id! #hus, in the district court>s view, Ito require the )laintiffs to resort to the protection offered by state law in these cases would effectively deprive them of their property, that is, their right to practice their professions, without due process of law and that irreparable in ury would follow in the normal course of events.J Id! !citation omitted". $5 #he Supreme 3ourt affirmed, agreeing with the district court that the ;%D Iwas incompetent by reason of bias to ad udicate the issues pending before it.J Id! at ,... #he 3ourt based its decision on the ;%D members> personal financial stake, reasoning that Ithose with substantial pecuniary interest in legal proceedings should not ad udicate these disputesJ and noting as well that Imost of the law concerning disqualification because of interest applies with equal force to ... administrative ad udicators.J Id! at ,.5 !alteration in original7 quotation marks and citations omitted". #he *i$son 3ourt rooted its conclusion of unconstitutional bias in its finding that the ;%D members all had a Isubstantial pecuniary interestJ in the outcome of proceedings in which they served as ad udicators.

22 ()* 2283 Anti ,n#unction 22BuscB2283BrestrainingBparticularBproceedingsBdigest.doc


U.S. v. ;lpine 1and 9 4eservoir 3o., *./ (.-d *66. 3.;.5.Hev.,*555 Gxception under ;nti'In unction ;ct permitting federal court to en oin state proceedings Iwhere necessary in aid of its urisdictionJ authoriFed district courtLs in unction of state court proceedings in which county sought to challenge state engineerLs decision to grant (ish and &ildlife ServiceLs water rights transfer application, inasmuch as district court had previously asserted in rem urisdiction over water rights at issue in quiet title actions, and had retained continuing and exclusive urisdiction over water rights ad udicated under decrees entered in those actions. 0+ U.S.3.;. E 00+- .See publication &ords and )hrases for other udicial constructions and definitions.

&hite :ountain ;pache #ribe v. Smith )lumbing 3o., Inc., +,2 (.0d *-6* 3.;.5.;riF.,*5++ #he ;nti'In unction ;ct did not bar Indian tribeLs request for in unction preventing subcontractorLs supplier from proceeding with state court action against insurer, who wrote performance bond for general contractor, which was subsidiary of the tribal government, in connection with Indian reservation low'income housing pro ect financed by the 8epartment of Housing and Urban 8evelopment7 RtribeLs request fell within exception under the ;ct for in unction necessary in aid of district courtLs urisdiction. 0+ U.S.3.;. EE *-26!b" , 00+- . 1ou v. %elFberg, +-/ (.0d .-6 3.;.5.3al.,*5+. (ederal court improperly en oined second, parallel action filed in state court after removal of first action to federal court, absent evidence second state court suit was fraudulently filed in attempt to subvert removal of first case . 0+ U.S.3.;. EE *//2!e" , 00+- . Shaw v. 8elta ;ir 1ines, Inc., *6- S.3t. 0+56 U.S.H.O.,*5+(ederal courts have urisdiction over suits to en oin state officials from interfering with federal rights.

$$ :iofsky v. Superior 3ourt of State of 3al., In and (or Sacramento 3ounty, .6- (.0d --0 3.;.5.3al.,*5+3ivil rights action in which plaintiff sought to restrain state udiciary from conducting private tort litigation in way that allegedly threatened to violate his constitutional rights was not sub ect to Oounger abstention doctrine where plaintiff did not seek to en oin state criminal proceedings, Iquasi'criminalJ proceedings, proceedings in aid of criminal law, proceedings initiated by state in its sovereign capacity, or proceedings brought to vindicate vital state interests. /0 U.S.3.;. E *5+- . ;lton %ox %d. 3o. v. Gsprit de 3orp., 2+0 (.0d *02. 3.;.5.3al.,*5+0 :anufacturers of corrugated containers were not entitled to in unction to prevent indirect purchaser from maintaining state law antitrust action where there was no statutory authoriFation for relief sought by manufacturers, in unction was not necessary to aid district courtLs urisdiction and indirect purchasers were not parties to multidistrict class action brought by direct purchasers in another district. 0+ U.S.3.;. E 00+- . (langas v. State %ar of Hevada, 2,, (.0d 5/2 3.;.5.Hev.,*5+* ;bstention doctrine would normally bar district court from en oining pending attorney disciplinary proceeding absent showing of exceptional circumstances. (langas v. State %ar of Hevada, 2,, (.0d 5/2 3.;.5.Hev.,*5+* Since attorney had failed to utiliFe statutory and constitutional measures available under Hevada law to cure alleged bias of Hevada Supreme 3ourt, it could not be determined whether there were Iexceptional circumstancesJ as would allow district court to en oin disciplinary proceeding before Hevada Supreme 3ourt, and therefore, district court abused its discretion in granting preliminary in unction against disciplinary proceedings involving attorney. H.4.S. *.00, 7 RHev.3onst. ;rt. 2, E / . 1. H. v. <amieson, 2/- (.0d *-,* 3.;.5.;riF.,*5+* &hen plaintiffs seek to en oin continuation of state proceeding or to en oin state officials from enforcing state statute, and when basis for federal relief could have been raised as complete or partial defense to pending or ongoing

state enforcement action during normal course of state proceeding, equitable restraint is compelled. Imperial 3ounty, 3al. v. :unoF, *6* S.3t. 0+5 U.S.3al.,*5+6 &here complaint seeking order en oining county from enforcing condition in use permit did not rely on or even so much as mention civil rights statute, case did not fall within exception to ;nti'In unction ;ct for in unctions expressly authoriFed by act of 3ongress. 0+ U.S.3.;. E 00+- 7 R/0 U.S.3.;. E *5+- . S.G.3. v. &encke, 200 (.0d *-23.;.5.3al.,*5+6 ;nti'In unction ;ct did not prohibit federal court from en oining a creditor of a defendant in SG3 securities fraud action from enforcing a prior state court udgment. 0+ U.S.3.;. E 00+- . :oore v. Sims, 55 S.3t. 0-.* U.S.#ex.,*5.5 Oounger doctrine, doctrine of abstention, though articulated first with reference to state criminal proceedings, is also fully applicable to civil proceedings in which important state interests are involved. :oore v. Sims, 55 S.3t. 0-.* U.S.#ex.,*5.5 In the case of state court civil proceedings to which state is party, as opposed to state court criminal proceeding, existence of conditions of public nuisance or child abuse or presence of such other vital concerns as enforcement of contempt proceedings or vindication of important state policies such as safeguarding fiscal integrity of public assistance programs determines applicability of Oounger'Huffman principles as bar to institution of later federal actions. :oore v. Sims, 55 S.3t. 0-.* U.S.#ex.,*5.5 &here claims were of interrelated nature, it would not have been appropriate that Oounger doctrine of abstention be invoked with respect to some claims and others left to federal forum. :oore v. Sims, 55 S.3t. 0-.* U.S.#ex.,*5.5 &here, when district court barred further state proceedings, allegedly abused child was within custody of his parents and specific date had been set for show cause hearing regarding writ of attachment, at which time parents could press their ob ections to deprivation of their custody, there were not shown Iextraordinary circumstancesJ which would render inapplicable the Oounger doctrine of abstention in absence of bad faith in state court proceedings. ?.#.3.;., (amily 3ode EE 0.6* et seq., **.60 , **.60!b" , **.6/!a" , **.** , **.*/ , **.*, , *..6* , *..60 , *..6/ '*..62 , *..6,!b"!0" . #rainor v. HernandeF, 5. S.3t. *5** U.S.Ill.,*5.. Statute barring a federal court from en oining state court proceedings except as expressly authoriFed by act of congress was inapplicable to action by public assistance recipient challenging Illinois ;ttachment ;ct since the 3ivil 4ights ;ct suit was an express statutory exception. S.H.;.Ill. ch. **, E * et seq.7 Rch. 0-, E **'0*7 R0+ U.S.3.;. E 00+- 7 R/0 U.S.3.;. E *5+- . #rainor v. HernandeF, 5. S.3t. *5** U.S.Ill.,*5.. Ho extraordinary circumstances warranted federal equitable intervention in civil enforcement action brought by state of Illinois to obtain return of welfare payments allegedly wrongfully received, specifically, ordering return of

attached property and en oining utiliFation of attachment statute, absent suggestion that the enforcement action was brought in bad faith or for purpose of harassing the recipients or any basis for finding that the ;ttachment ;ct violated express constitutional provisions in every clause, sentence and paragraph and in whatever manner and against whomever an effort might be made to apply it. S.H.;.Ill. ch. **, E * et seq.7 Rch. 0-, E **'0*7 R U.S.3.;.3onst. ;mend. */ . 3adena v. )erasso, /5+ (.0d -+3.;.5.3al.,*5./ 4ule that statute governing deprivation of civil rights is an exception to anti'in unction statute does not qualify in any way principles of equity, comity, and federalism that must restrain a federal court when asked to en oin a state court proceeding. /0 U.S.3.;. E *5+- 7 R0+ U.S.3.;. E 00+- . Cibson v. %erryhill, 5- S.3t. *2+5 U.S.;la.,*5.(ederal antiin unction statute did not bar federal district court from issuing in unction in suit which was brought on due process grounds under the 3ivil 4ights ;ct by licensed optometrists seeking to stop hearings before ;labama %oard of Dptometry on charges of unprofessional conduct within meaning of state optometry statute because of such optometristsL employment with a corporation. 3ode of ;la., #it. /2, EE *5*, *50, 06-, 062, 0*6, 0**7 R0+ U.S.3.;. E 00+- 7 R /0 U.S.3.;. E *5+- . . :itchum v. (oster, 50 S.3t. 0*,* U.S.(la.,*5.0 In addition to exceptions to anti'in unction statute found to be embodied in various acts of 3ongress, other IimpliedJ exceptions to blanket prohibition of anti'in unction statute are recogniFed, one being an Iin remJ exception, allowing a federal court to en oin a state court proceeding in order to protect its urisdiction of a res over which it had first acquired urisdiction, another being a IrelitigationJ exception, permitting a federal court to en oin relitigation in a state court of issues already decided in federal litigation, and a third exception permitting a federal in unction of state court proceedings when plaintiff in federal court is United States itself, or a federal agency asserting superior federal interests. 0+ U.S.3.;. E 00+- . :itchum v. (oster, 50 S.3t. 0*,* U.S.(la.,*5.0 )rovision of 3ivil 4ights ;ct authoriFing a suit in equity to redress deprivation under color of state law or any rights, privileges, or immunities secured by 3onstitution is within Iexpressly authoriFedJ exception of federal anti' in unction statute prohibiting a federal court from en oining a state court proceeding except as expressly authoriFed by act of 3ongress. 0+ U.S.3.;. E 00+- 7 R/0 U.S.3.;. E *5+- .See publication &ords and )hrases for other udicial constructions and definitions. )orter v. 8icken, 22 S.3t. *65/ U.S.Dhio,*5/2 #he provision in Gmergency )rice 3ontrol ;ct authoriFing )rice ;dministrator to bring in unction proceedings to enforce the ;ct in either state or federal courts is broad enough to ustify an in unction to restrain state court evictions. Gmergency )rice 3ontrol ;ct of *5/0, E 06,, ,6 U.S.3.;. ;pp. E 50,. )orter v. 1ee, 22 S.3t. *652 U.S.Ky.,*5/2 #he federal 8istrict 3ourt had urisdiction to grant an in unction sought by )rice ;dministrator under Gmergency )rice 3ontrol ;ct to restrain eviction of a tenant under a state court order where the ;dministrator alleged that eviction would violate the act and valid rent regulations promulgated pursuant thereto. Gmergency )rice 3ontrol ;ct of *5/0, E 06,!c", ,6 U.S.3.;.;ppendix, E 50,!c"7 R<ud.3ode, E 02,, 0+ U.S.3.;. E -.5.

%owles v. &illingham, 2/ S.3t. 2/* U.S.Ca.,*5// #he federal 8istrict 3ourt had power to en oin action in state court to restrain issuance of rent orders under Gmergency )rice 3ontrol ;ct for alleged unconstitutionality of such orders and the act and the execution by sheriff of any orders in such state action. <ud.3ode, EE 0/!*", 02,, 0+ U.S.3.;. EE *--* et seq., 00+- 7 RGmergency )rice 3ontrol ;ct of *5/0, EE 06/!c, d", 06,!a, c", ,6 U.S.3.;.;pp. EE 50/!c, d", 50,!a, c"7 RU.S.3.;.3onst. art. -, E 0. Holand v. Holand, *** (.0d -00 3.;.5.3al.,*5/6 ;mended bill of complaint, praying that United States 8istrict 3ourt issue in unction restraining divorced wife and another from conducting any further proceedings in the courts of 3alifornia pertaining to Hevada divorce decree and to custody of child, and praying for issuance of writ of habeas corpus and other relief, was properly dismissed for want of urisdiction, in absence of allegation of material matters that were not or could not have been placed before the state court, particularly in view of statute prohibiting issuance of in unction by federal court to stay proceedings in state courts except as authoriFed in bankruptcy proceedings. 0+ U.S.3.;. EE *--* et seq., 00+- . Hull v. %urr, -/ S.3t. +50 U.S.:ass.,*5*/ ; suit by alleged owners of certain property to restrain trustees in bankruptcy from suing them in the state court to establish an interest therein is not in aid of a prior udgment in e ectment in the federal court, and therefore excluded from the prohibition of 4ev.St. E .06, 0+ U.S.3.;. E 00+- , against in unctions to stay proceedings in state courts, where e ectment was brought after ad udication of bankruptcy, and the bill declares that any title the bankrupt had at the time of the ad udication remains in him. )itt v. 4odgers, *6/ (. -+. 3.;.5.Hev.,*566 Under the statute of Hevada, 3uttingLs 3omp.1aws, par. -*00, which requires the filing of a notice of lis pendens with the county recorder in order to charge subsequent purchasers with constructive notice of the pendency of an action affecting the title or possession of real property, a purchaser of land without knowledge or actual notice of a suit then pending in a state court between his grantor and others involving water rights in connection with such land, and in which no notice of lis pendens was filed, is not affected by such suit, and the institution by him of a suit in a federal court to determine his water rights, and the service of process and an in unction therein upon the defendants, who are also the adverse parties in the action in the state court, vests the federal court with priority of urisdiction over the sub ect'matter and the parties, and it may properly protect such urisdiction by an in unction restraining the defendants from further prosecuting the suit in the state court, to which, subsequent to the service of process upon them, they have made the complainant a party. A")e/!an +. ;ope, 793 -.2d 1072 $9t) C&r.$Ar&?.',.u/ 08, 198#'

)u!#ect ?atter Jurisdiction 8*o petency;, *al. @rac. 5uide *iv. @ro. Before <rial *h. 3.A
W Su8=e5t %atter .ur&"d&5t&onC &hich state courts are competent under 3alifornia law to ad udicate the type of action involvedR !See V <)= ff!" SIf the claim is $ased on federal law" can state courts ad udicate at all, or must the case be heard in federal courtR I.e., is federal =ur&"d&5t&on IexclusiveJ or Iconcurrent J !see V <)677"R !#he same issue arises where federal law preempts a state law claim, so that the only viable claim is a federal claim7 see V <)67=." W ;er"ona/ .ur&"d&5t&onC ;ssuming the action is filed in a competent court, can that court exercise =ur&"d&5t&on over the defendantsR Is there a constitutionally'sufficient IcontactJ or relationship with the defendant to permit

3alifornia courts to render a valid udgmentR !See V <)7<8 ff!" W Co!pareDEEx5e"" o6 .ur&"d&5t&onFC #he term Iexcess of =ur&"d&5t&onJ means that a court that has =ur&"d&5t&on over the "u8=e5t !atter and parties has no authorit+ or power Ito act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural requisites .J MPeople v! &merican 1ontractors Indem! 1o! !066/" -- 3/th 2,-, 22*, *2 34-d .2, +* !internal quotes omitted"7 see Lee v! &n !066+" *2+ 3;/th ,,+, ,2,, +, 34-d 206, 20, Sacting Iin excess of =ur&"d&5t&onJ renders court>s udgment voidable, not voidN W -edera/ +". State .ur&"d&5t&onC 3laims "u8=e5t to IexclusiveJ federal =ur&"d&5t&on must of course be filed in federal court !see V <)677". %ut many IdiversityJ and Ifederal questionJ claims are within the IconcurrentJ =ur&"d&5t&on of federal and state courts ! see V <)67>". In such cases, are there any advantages to suing in state court vs. federalR !See V <)6<8 ff!" *. M-@0.*N 2a5>groundD:r&a/ Court Un&6&5at&onC Until *55+, each county in 3alifornia had a superior court and at least one municipal court with separate "u8=e5t !atter =ur&"d&5t&on. #he 3alifornia 3onstitution was amended in *55+ to permit unification of the municipal and superior courts in each county into a single superior court upon approval by the udges of both courts ! 3onst. ;rt. ?I, E ,7 Cov.3. E .6066 et seq.". 3ourts in all 3alifornia counties are now unified7 municipal courts have ceased to exist. MSee TrafficSchool/nline" Inc! v! Sup!1t! ?/hlrich@ !066*" +5 3;/th 000, 00., *6. 340d /*0, /*,N a. M-@0.0N L&!&ted +". un/&!&ted 5&+&/ 5a"e"C 3ivil cases formerly within the =ur&"d&5t&on of municipal courts are now classified as Ilimited civil casesJ !33) E +,7 see V <)A ff!". ;ll others are Iunlimited civil casesJ !33) E ++". Gxistence of a statute relating to a court>s authority in one type of case !limited or unlimited =ur&"d&5t&on" does not itself imply that the same authority does or does not exist in the other. M33) E +5N 0. M-@-N Super&or Court Su8=e5t %atter .ur&"d&5t&onC #here is one superior court in each county in 3alifornia. M3al. 3onst. ;rt. ?I, E /N Gach superior court has general "u8=e5t !atter =ur&"d&5t&on, meaning that it can ad udicate any and all cases brought before it !"u8=e5t to various exceptions and limitations discussed at V <)7=< ff!". #he superior court is divided into departments !probate, family law, etc." as a !atter of convenience7 but "u8=e5t !atter =ur&"d&5t&on of the superior court is vested as a whole. M 2state of Bowles !066+" *25 3;/th 2+/, 25,, +. 34-d *00, *05N -. M-@/N L&!&ted +". Un/&!&ted C&+&/ Ca"e"C Superior courts have "u8=e5t !atter =ur&"d&5t&on in both limited and unlimited civil cases. MSee 33) E -0.,SIlimited civil case or unlimited civil caseJN 3ases classified as IlimitedJ civil cases, however, are "u8=e5t to special rules and =ur&"d&5t&ona/ limitations, discussed below. a. M-@,N A5t&on" not "u8=e5t to 5/a""&6&5at&on a" /&!&ted 5&+&/ 5a"e"C %y statute, certain actions are not "u8=e5t to the special rules governing limited civil cases, regardless of the amount in controversy and regardless of cross'complaints. #hese include@ W -a!&/4 /a* 5a"e"C ;ll proceedings under the (amily 3ode !including marriage dissolution, legal separation and nullity7 child custodyTvisitation7 child, spousal and family support7 paternity7 and adoptions". M(am.3. E 066N

W ;ro8ate pro5eed&ng" M)rob.3. E 06*N W :ru"t ad!&n&"trat&on M)rob.3. E *.6667 see Saks v! #amon .aike 4 1o! !*550" . 3;/th /*5, /05X/-6, + 340d +25, +.2, fn. .Strial court that first obtains =ur&"d&5t&on over a trust under petition brought pursuant to )robate 3ode has exclusive =ur&"d&5t&on of proceedings concerning that trust>s internal affairsN W ,uard&an")&p and 5on"er+ator")&p pro5eed&ng" M)rob.3. E 0066N W E!&nent do!a&n pro5eed&ng" M33) E *0,6.6*6N W Corporate d&""o/ut&on pro5eed&ng" M3orps.3. EE *+66!a", *56/N W Un&n"ured !otor&"t ar8&trat&on pro5eed&ng" M33) E +2!a"!*6"N W ,ood 6a&t) &!pro+e!ent"C ;ctions to recover the value of good faith improvements made on the land of another. MSee 33) E +.*.-!a"N M-@2X.N .eserved! /. M-@+N L&!&ted C&+&/ Ca"e"C ;ll cases are classified as unlimited civil cases, except the following actions which are designated as limited civil cases@ a. M-@5N A5t&on" at /a*C 3ases at law in which the demand, exclusive of interest, or the value of the propert+ in controversy, is A0,,666 or less. M33) E +2!a"!*"N !*" M-@*6N Ex5ept&onD/ega/&t4 o6 taxe", et5.C #he only exception is cases involving the legalit+ of any Itax, impost, assessment, toll or municipal fine.J Such cases are not limited civil cases, even if less than A0,,666 is involved. M33) E +2!a"!*"7 see 1ardellini v! 1ase+ !*5+2" *+* 3;-d -+5, -5+, 002 34 2,5, 22/N Dn the other hand, if the taxpayer does not contest the legality of the tax, an action to collect less than A0,,666 on state tax liability is a limited civil case. M33) E 2++.6*6N !0" M-@**N -or5&8/e or un/a*6u/ deta&nerC ;ll actions in Iforcible entryJ or Iforcible or unlawful detainerJ where the total damages claimed is A0,,666 or less. !#he rental value of the property is immaterial ." M33) E +2!a"!/"N ; landlord can sue in superior court for eBectment, but that will not provide the summary remedy available in unlawful detainer. MSee Stokus v! 'arsh !*556" 0*. 3;-d 2/., 2,-, 022 34 56, 5-, fn. 07 and detailed discussion in (riedman, Carcia 9 Hagarty, 1al! Prac! *uide) LandlordCTenant !#4C"N g. M-@**6N Cro""G5o!p/a&nt a66e5t&ng =ur&"d&5t&ona/ 5/a""&6&5at&onC 3lassification as a limited or unlimited civil case may also be affected by a cross'complaint filed in the action. !*" M-@***N Cro""G5o!p/a&nt 6or !ore t)an H25,000 &n a5t&on 6&/ed a" /&!&ted 5&+&/ 5a"eC &here a complaint is filed as a limited civil case but the cross'complaint seeks more than A0,,666 !or other relief unavailable in a limited civil case", the clerk will reclassify the case as an unlimited civil case upon compliance with the following procedures !33) E /6-.6-6"@ !a" M-@***.*N Capt&on o6 5ro""G5o!p/a&ntC #he caption of the cross'complaint must state words to the following effect@ I1I:I#G8 3I?I1 3;SG 4G31;SSI(IG8 %O #HIS )1G;8IHC ;S ;H UH1I:I#G8 3I?I1 3;SG.J M33) E /6-.6-67 343 0.*** !**"N !b" M-@***.0N -ee" pa4a8/e 84 5ro""G5o!p/a&nantC #he reclassification fees !see V <)7=7" are payable by

the party who files the cross'complaint. M33) E /6-.6-6N M-@***.-X***./N .eserved! !0" M-@***.,N Cro""G5o!p/a&nt 6or /e"" t)an H25,000 &n a5t&on 6&/ed a" un/&!&ted 5&+&/ 5a"eC If the action is filed as an unlimited civil case, the court has =ur&"d&5t&on to render udgment on a cross'complaint in an+ amount. MSee Sullivan v! 1alifornia .ealt+ 1o! !*56/" */0 3 06*, 062X06+, ., ) .2., .25X..6 Splaintiff lost on complaint and defendant awarded A*+6 on cross'complaintN %ut the action>s classification as an unlimited civil case may be affected by dismissal of the complaint. I.e., if the amount demanded in the cross'complaint is less than D=E"888, the court may on its own motion or on defendant>s motion reclassif+ the action as a limited civil case. MSee 33) E /6-.6/6, discussed at V <)7=<N 2. M-@**0N %ot&on to Re5/a""&64 A5t&onC &here a case has been misclassified by failure to properly label the pleadings !e.g., plaintiff fails to caption the case as a limited civil case or to check the appropriate box on the civil case cover sheet", any party may file a motion to have the case reclassified, or the court may do so on its own motion. M33) E /6-.6/6!a"N 4eclassification, however, is not essential to "u8=e5t !atter =ur&"d&5t&on. #he court is not required to reclassify an action in order to render a valid udgment7 i.e., the fact that the udgment to be rendered is one that might have been rendered in a limited civil case does not affect the court>s power to render udgment in an unlimited civil case. MSee 33) E /6-.6/6!e"N g. M-@*0-.-,N Ca"e" /a5>&ng =u"t&5&a8/e 5ontro+er"4C #o invoke a court>s =ur&"d&5t&on, there must be presented to the court Ia genuine and existing controvers+ , calling for present ad udication as involving present rights.J MHousing *roup v! (nited 0at3l Ins! 1o! !066*" 56 3;/th **62, ****, *65 340d /5., ,6* !internal quotes omitted"N W M-@*0-.-2N #hus, a court may not exercise =ur&"d&5t&on where the parties come to court with a negotiated settlement !no remaining issues to be determined" and ask only that the court appoint a udicial officer of their choosing to ratify it. M Housing *roup v! (nited 0at3l Ins! 1o!" supra, 56 3;/th at ****, *65 340d at ,6*N W M-@*0-.-.N 1ikewise, courts should decline to exercise =ur&"d&5t&on over a IshamJ or ImootJ action involving no actual controversy. MHousing *roup v! (nited 0at3l Ins! 1o!" supra, 56 3;/th at ****, *65 340d at ,6*N M-@*0-.-+X*0-.-5N .eserved! $$+. M-@*0/N E66e5t o6 La5> o6 Su8=e5t %atter .ur&"d&5t&onC If the court in which the action is filed does not have the power to ad udicate the action, the proceedings are void. M'arlow v! 1amp$ell !*550" . 3;/th 50*, 50+, 5 340d ,*2, ,06N #he parties cannot by stipulation or agreement confer "u8=e5t !atter =ur&"d&5t&on on a court that otherwise lacks it. MSee 1rowell v! #owne+ 1omm! Hosp! Found! !0660" 5, 3;/th .-6, .-5, **, 340d +*6, +*.N #his issue may arise in those few types of cases in which superior courts lack "u8=e5t !atter =ur&"d&5t&on@ e.g., claims within exclusive federal =ur&"d&5t&on or within the primary =ur&"d&5t&on of another tribunal, claims involving religious doctrine or discipline, etc. See discussion at V <)7=< ff! a. M-@*0,N 3e6e5t 5annot 8e *a&+edC 1ack of "u8=e5t !atter =ur&"d&5t&on is such a fundamental defect that it is not waived by delay or failure to ob ect. M People v! 0ational &uto! 4 1as! Ins! 1o! !0666" +0 3;/th *06, *0,, 5. 340d +,+, +20S"u8=e5t !atter =ur&"d&5t&on cannot be conferred by consent, waiver or estoppelN #he defect can be raised at any time and by any available procedure@ I; udgment rendered by a court that does not have "u8=e5t !atter =ur&"d&5t&on is void and unenforceable and may be attacked anywhere, directly or

collaterally, by parties or by strangers.J M'arlow v! 1amp$ell, supra, . 3;/th at 50+, 5 340d at ,06 !internal quotes omitted"N !*" M-@*0,.*N Co!pareD/a5> o6 per"ona/ =ur&"d&5t&onC #he requirements as to territorial =ur&"d&5t&on !Iminimum contacts,J etc." are for the protection of defendant, and therefore can be waived by him or her !V <)7<F". %ut "u8=e5t !atter =ur&"d&5t&on requirements go to the very power of the court to act at all, and hence cannot be waived. 5. M-@*02N ;ro5edure 6or C)a//eng&ng Su8=e5t %atter .ur&"d&5t&onC 1ack of "u8=e5t !atter =ur&"d&5t&on is such a fundamental defect that it can be raised at any time !even for the first time on appeal". It can be raised@ $$Sby demurrer to the complaint where the defect appears on the face of the complaint or from !atter" udicially noticeable !33) E /-6.*6!a"7 see V G)6< ff!"7 $$Sby motion to strike !33) EE /-,, /-."7 $$Sby motion for udgment on the pleadings7 $$Sby motion for summary udgment !33) E /-.c"7 or $$Sas an affirmative defense in the answer. M*reener v! -orkers3 1omp! &ppeals Bd! !*55-" 2 3/th *60+, *6-2X*6-., 0, 340d ,-5, ,/-7 see Parrott v! 'ooring Townhomes &ss3n" Inc! !066-" **0 3;/th +.-, +.2, 2 34-d **2, **+, fn. * !citing text"N 3ompare@ #he challenge may not, however, be made in a Ispecial appearanceJ by a motion to quash service of summons !which lies to challenge the court>s personal =ur&"d&5t&on over the moving party7 see V <)<G6". M*reener v! -orkers3 1omp! &ppeals Bd!, supra, 2 3/th at *6-2, 0, 340d at ,/-N $$a. M-@*0.N 9)o !a4 5)a//engeC 1ack of "u8=e5t !atter =ur&"d&5t&on may be raised by either of the parties7 or by the court on its own motion. M1hrom+ v! Lawrance !*55*" 0-- 3;-d *,0*, *,0., 0+, 34 /66, /6-S appellate court raised sua sponteN !*" M-@*0..*N Lo"&ng p/a&nt&66 !a4 5)a//enge =ur&"d&5t&on *)&5) &t &n+o>edC )laintiff who has lost on the merits may obtain reversal on appeal by proving the court in which he or she filed the action lacked "u8=e5t !atter =ur&"d&5t&on. M1hrom+ v! Lawrance, supra, 0-- 3;-d at *,0+, 0+, 34 at /6- Splaintiff filed death' on'high'seas claim in state court7 after losing at trial, plaintiff obtained reversal by proving claim was within exclusive federal =ur&"d&5t&onN b. M-@*0+N :&!e 6or ra&"&ng de6e5tC Since lack of "u8=e5t !atter =ur&"d&5t&on renders the proceedings void, the defect can be raised at any time. (ailure to raise it in the pleadings does not waive the defect. M33) E /-6.+67 see Parrott v! 'ooring Townhomes &ss3n" Inc! , supra, **0 3;/th at +.2, 2 34-d at **+, fn. * !citing text"N !*" M-@*0+.*N 7n appea/C :oreover, the policy against courts acting in excess of their power is so strong that lack of "u8=e5t !atter =ur&"d&5t&on can even be raised for the first time on appeal . M&sh v! Hert, 1orp! !*55." ,- 3;/th **6., ***0, 20 340d *50, *5,Simmaterial that earlier writ petition had been deniedN !0" M-@*0+.0N A6ter =udg!ent 6&na/C Dnce a udgment becomes final, it is normally res udicata as to any errors or defects in the proceedings. %ut the policy against courts acting in excess of their "u8=e5t !atter =ur&"d&5t&on is so strong that later attack may be permitted where@ W #he =ur&"d&5t&ona/ issue was not actually litigated7 and W #he issue is one of law" rather than of fact7 and

W #he court>s lack of =ur&"d&5t&on is Iclear,J and the policy against permitting the court to act beyond its =ur&"d&5t&on is Istrong.J MSee 4est.0d 3onflict of 1aws E 5., comment IdJN M-@*05N .eserved!

%ar/o* +. Ca!p8e//, 7 Ca/.App.4t) 921, 9 Ca/.Rptr.2d 51# $Ca/.App. 3 3&"t. .un 24, 1992' Dwners of mobile home park filed petition against mobile home co'owners seeking udgment declaring mobile home had been abandoned. #he Superior 3ourt, Hevada 3ounty, Ho. //05*,<ohn H. 8arlington, <., granted petition, and co'owner appealed. #he 3ourt of ;ppeal, Sparks, ;cting ).<., held that@ $$!*" Superior 3ourt lacked urisdiction to ad udicate petition, and !0" petition could not be construed as requesting declaratory relief over which court had urisdiction. 4eversed and remanded with directions. 0#1 Court" 10# 188$2'

*62 3ourts *62I? 3ourts of 1imited or Inferior <urisdiction *62k*+2 :unicipal 3ourts *62k*++ <urisdiction *62k*++!0" k. Hature of Sub ect':atter in Ceneral. :ost 3ited 3ases Court" 10# 472.7

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!;" 3ourts of Same State *62?II!;"* In Ceneral *62k/.0 Gxclusive or 3oncurrent <urisdiction *62k/.0.. k. <ustices of the )eace. :ost 3ited 3ases Superior court lacked urisdiction to ad udicate petition to declare mobile home abandoned7 statute expressly conferred urisdiction over petitions for abandonment of mobile homes upon municipal and ustice courts. &estLs ;nn.3al.3iv.3ode EE .5+ et seq., .5+.2*.

071 3e5/arator4 .udg!ent 118A

181

**+; 8eclaratory <udgment **+;II Sub ects of 8eclaratory 4elief **+;II!H" )roperty and 3onveyances **+;k*+* k. #itle and )roperty 4ights in Ceneral. :ost 3ited 3ases 8eclaratory relief is generally available if actual controversy exists, among other things, as to property. &estLs ;nn.3al.3.3.). E *626. 081 Court" 10# 121$1'

*62 3ourts *62III 3ourts of Ceneral Driginal <urisdiction *62III!;" Crounds of <urisdiction in Ceneral

*62k**5 ;mount or ?alue in 3ontroversy *62k*0* :atter in 8ispute, or ;mount or ?alue 3laimed or Involved *62k*0*!*" k. In Ceneral. :ost 3ited 3ases Superior courtLs sub ect matter urisdiction can sometimes be saved by construing complaint that should have been filed in another court as one for declaratory relief. 091 Court" 10# 472.1

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!;" 3ourts of Same State *62?II!;"* In Ceneral *62k/.0 Gxclusive or 3oncurrent <urisdiction *62k/.0.* k. In Ceneral. :ost 3ited 3ases Drdinarily, superior court has exclusive urisdiction over action for declaratory udgment, unless raised by cross complaint in municipal court. 0101 3e5/arator4 .udg!ent 118A 312.1

**+; 8eclaratory <udgment **+;III )roceedings **+;III!8" )leading **+;k-*0 3omplaint, )etition or %ill **+;k-*0.* k. In Ceneral. :ost 3ited 3ases !(ormerly **+;k-*0" (act that complaint in question is not labeled one for declaratory relief does not prevent court from so construing it. 0111 3e5/arator4 .udg!ent 118A 318

**+; 8eclaratory <udgment **+;III )roceedings **+;III!8" )leading **+;k-*0 3omplaint, )etition or %ill **+;k-*+ k. )roperty, 3onveyances and Incumbrances. :ost 3ited 3ases )etition to declare mobile home abandoned could not be construed as complaint for declaratory relief, and thus superior court lacked urisdiction7 petition sought relief which could only be rendered in special statutory abandonment procedure, and special statutory scheme contemplating that only municipal court would hear petitions for udicial declaration of abandonment controlled over general declaratory relief statute. &estLs ;nn.3al.3iv.3ode EE .5+ et seq., .5+.2*7 &estLs ;nn.3al.3.3.). E *+,5. 0121 Court" 10# 40

*62 3ourts *62I Hature, Gxtent, and Gxercise of <urisdiction in Ceneral *62k/6 k. ;cts and )roceedings &ithout <urisdiction. :ost 3ited 3ases ;ct beyond courtLs sub ect matter urisdiction is void, and may be set aside at any time, and no valid rights can accrue under it. M*NM0NM-N 8efendant Kenneth 1. 3ampbell appeals in propria persona from a udgment granting a petition to declare a mobilehome abandoned. !3iv.3ode, E .5+.2*." 8efendant contends that (924 the superior court lacked urisdiction to enter a udgment of abandonment. (H* &e agree and shall reverse.

Cal. Prac. Guide Civ. Pro. Before Trial Ch. 3-E 3alifornia )ractice Cuide@ 3ivil )rocedure %efore #rial Hon. &illiam (. 4ylaarsdam, Hon. 1ee Smalley Gdmon, 3ontributing Gditors@ ;tty. 4ichard <. %urdge, <r., ;tty. <effrey I. Ghrlich, ;tty. 4ichard %. CoetF, and ;tty. 8avid <. )asternak 3hapter -. <urisdiction ;nd ?enue E. Federal VS. State Courts *. M-@2**N EEx5/u"&+eF -edera/ .ur&"d&5t&onC #here are a few cases which m st be filed in federal court. %y virtue of federal law, state courts have no power to ad udicate !no sub ect matter urisdiction". Exa!p/e" W M-@2**.*N Patent and cop+right claims! M0+ US3 E *--+!a"7 see Holida+ 'atinee" Inc! v! .am$us" Inc! !066/" **+ 3;/th */*-, */0,, *- 34-d .22, ..,S$$although complaint alleged only state law claims, 3alifornia courts lacked urisdiction because all claims necessarily reHuired resolution of su$stantial issue of patent law over which federal courts have exclusive urisdiction7 see also Lockwood v! Sheppard" 'ullin" .ichter 4 Hampton !0665" *.- 3;/th 2.,, 2+., 5- 34-d 006, 005 S$$action based on alleged misrepresentations to U.S. )atent and #rademark Dffice necessarily involved examination of patent issues over which federal courts have exclusive urisdictionN 1ompare) %ut an action for royalties owed under a patent licensing agreement can be brought in state court, because the contract and its breach can be proved Iwithout any need whatsoever to invoke federal patent law.J M&pplera 1orp! v! 'P Biomedicals" LL1 !0665" *.- 3;/th .25, .+/, 5- 34-d *.+, *5*N W M-@2**.0N &dmiralt+ and maritime claims! M0+ US3 E *---N SM-@2**.0aN %ut state courts have concurrent urisdiction of claims under the <ones ;ct !/2 US3 E -6*6/ et seq." for in ury to or death of seamen in international waters. M #onaldson v! 0ational 'arine" Inc! !066," -, 3/th ,6-, ,*6, 0, 34-d ,+/, ,++N W M-@2**.-N 1laims arising out of $ankruptc+ proceedings . M0+ US3 E *--/7 Pauletto v! .eliance Ins! 1o. !*55+" 2/ 3;/th ,5., 260, ., 340d --/, --.Sstate courts lack urisdiction in action for malicious prosecution based on defendant>s having filed adversary proceeding in bankruptcy court@ Iit is for 3ongress and the federal courts, not state courts, to decide what incentives and penalties shall be utiliFed in the bankruptcy processJ7 1ho+ v! .edland Ins! 1o! !0660" *6- 3;/th .+5, .5+, *0. 340d 5/, *66Sstate courts lack urisdiction of malicious prosecution action based on alleged bad faith filing of voluntary bankruptcy petitionN II1ross9refer) See detailed discussion of which claims fall within exclusive federal Burisdiction in Schwar,er" Tashima 4 -agstaffe" 3al. )rac. Cuide@ (ederal 3iv. )ro. %efore #rial !#4C", 3h. 0% exclusive federal Burisdiction in Schwar,er" Tashima 4 -agstaffe" 3al. )rac. Cuide@ (ederal 3iv. )ro. %efore #rial !#4C", 3h. 0%. Cal. Prac. Guide Fed. Civ. Pro. Before Trial Ch. 2A-3

4utter Croup )ractice Cuide@ (ederal 3ivil )rocedure %efore #rial, 3alif. 9 5th 3ir. Gditions &illiam & SchwarFer, ;. &allace #ashima, and <ames :. &agstaffe7 3ontributing Gditors@ Hon. Cerald G. 4osen, Hon. 4oslyn D. Silver, Hon. ;ndrew <. &istrich, ;tty. Steven <. ;damski, and ;tty. Ivo 1abar 3hapter 0. Sub ect :atter <urisdiction ;. (ederal <urisdiction@ Introduction 3. Federal Jurisdiction As E clusive Vs. Concurrent !ith State Courts -. M0@0.N -edera/ .ur&"d&5t&on a" Ex5/u"&+e +". Con5urrent 9&t) State Court"C #here are some matters !below" that are within the exclusive urisdiction of federal courts. %ut these are very few. :ost cases, incl din! most "fede#al $ estion% cases, could be filed in eit&e# federal or state courts7 i.e., they have conc ##ent urisdiction. M' lf (ffs&o#e Co) *) Mobil (il Co#+) !*5+*" /,- US /.-, /.+, *6* S.3t. 0+.6, 0+.,N Indeed, in considering the propriety of state court urisdiction over any particular federal claim, it is +#es med that state courts en oy concurrent urisdiction. #hat presumption can be rebutted by an explicit statutory directive confining urisdiction to federal courts or I!w"hen a state court refuses urisdiction because of a neutral state rule regarding the administration of the courts.J M Ha+wood v! #rown !0665" US , , *05 S.3t. 0*6+, 0**/ !emphasis added7 internal quotes omitted"N c. M0@-6N Ex5ept&on"De,cl si*e 6edera/ =ur&"d&5t&onC #here are, however, certain types of cases which only federal courts can ad udicate. %y constitutional or statutory provision, udicial power is vested exclusivel+ in the federal courts. ;s to these matters, state courts lack su$Bect matter BurisdictionJ MSee *ulf /ffshore 1o! v! 'o$il /il 1orp! !*5+*" /,- US /.-, /.+, *6* S.3t. 0+.6, 0+.,N #he most important of these areas are the following@ !*" M0@-*N 2an>rupt54 !atter"C #he statute granting federal urisdiction in bankruptcy matters expressly provides that district courts shall have Ioriginal and exclusive urisdiction of all cases under #itle ** !%ankruptcy".J M0+ US3 E *--/N 1ross9referK$ankruptc+ removal) #he removal of state court cases to a federal bankruptcy court is discussed at V =)AF6!7 ff. !a" M0@-0N Co!pareC %ut state courts may have concurrent urisdiction over certain adversary proceedings between the representative of the bankruptcy estate and third persons@ e.g., to enforce contracts against such third persons7 or to enforce liens on property that is not in the actual or constructive possession of the bankruptcy court. f. M0@,-N E66e5t o6 6edera/ pree!pt&onC (ederal law supersedes state law whenever the federal law expressly or impliedly so provides or the federal and state laws are in conflict !see discussion at V 7)EG8 ff!". (ederal preemption of state law ordinarily does not affect a court>s urisdiction. ; defense of federal preemption can be ad udicated in either federal or state court7 and, except in the specific areas noted above !V =)<8 ff!", state courts have concurrent urisdiction of claims arising under federal law and will apply federal law in the areas where federal law controls. !*" M0@,-.*N Co!pareDE5o!p/eteF pree!pt&onC However, in a few areas the force of federal preemption is

so IcompleteJ that any state law claim is converted into a federal claim !see V 7)GG6" and thus has urisdictional repercussions@ Ho matter how the claim is pleaded, it is treated as one Iarising underJ federal law ... giving federal courts both original !federal question" urisdiction !V =)EF ff." and removal urisdiction in actions filed in state court !V =)6>< ff!".

2 $=$.

Designation of !an"ruptcy courts

,n each #udicial district, the !an"ruptcy #udges in regular active service shall constitute a unit of the district court to !e "nown as the !an"ruptcy court for that district. Cach !an"ruptcy #udge, as a #udicial officer of the district court, ay e-ercise the authority conferred under this chapter D28 ()*) 22 $=$ et se+.E with respect to any action, suit, or proceeding and ay preside alone and hold a regular or special session of the court, e-cept as otherwise provided !y law or !y rule or order of the district court. Jurisdictional provisions of title 28 added !y $98' a end ents placing certain li itations on authority of Ban"ruptcy *ourt to enter final decision on erits of clai s arising under state or non. !an"ruptcy federal law asserted against non.!an"ruptcy parties defendant, si ilar to those clai s discussed in 9orthern @ipeline, are constitutional in that they esta!lish speciali1ed Article , Ban"ruptcy *ourt capa!le of ad inistering !an"ruptcy laws while assuring litigants that Article ,,, tri!unal will !e final ar!iter of erits of state and federal clai s prosecuted against parties which would not otherwise appear !efore Ban"ruptcy *ourt !ut for pendency of !an"ruptcy case involving party plaintiff. ,n re Aathrop 8$98=, B* 9D ,ll; '9 BF 88=.
Disciplinary proceeding against attorney for isconduct in prior !an"ruptcy cases was non.core proceeding and, thus, !an"ruptcy court lac"ed statutory #urisdiction to issue final appeala!le order suspending attorney fro !an"ruptcy practiceG proceeding was not tied to pending !an"ruptcy case, relied on state law ethical o!ligations, and addressed only attorneyHs fitness to practice in future cases. )heridan v ?ichels 8,n re )heridan; 82&&', *A$ 9I; 372 63d 97, **I Ban"r A Fptr @ 8&&%$. Ban"ruptcy *ourt lac"s authority !rought pursuant to 28 ()*) 2 $9$=8a; to grant leave to proceed in for a pauperis to *hapter % de!tor so that he will not !e re+uired to pay J 3& ad inistrative fee re+uired of all *hapter % de!tors, where Ban"ruptcy *ourt is not Kcourt of (nited )tatesK under 28 ()*) 2 '=$ authori1ed to per it litigant to proceed in for a pauperis under 2 $9$=G nor do 28 ()*) 22 $=$ and $=% provide Ban"ruptcy *ourts with authority to per it de!tor to proceed in for a pauperis. ,n re Buc" 8$993, B* >D @a; $=% BF 2'%, 29 *B*2d ='$, **I Ban"r A Fptr @ %=399 8superseded !y statute as stated in ,n re 4oren 8$99=, B* CD @a; $%7 BF %'&;.

De!torsH assented otion for approval of a loan odification !etween the de!tors and a ortgage creditor could not !e ruled upon !y a !an"ruptcy court !ecause the otion, !y itself and not within the conte-t of a relief fro stay or an issue related to the confir ation or odification of a proposed plan, did not present the court with an actual case or controversy and the court was precluded fro offering an advisory opinion on the atter. ,n re ) ith 82&&9, B* D* 9I; 2&&9 B9I $9, '&9 BF $.

,ssue of e-clusive !an"ruptcy court #urisdiction over property of the estate 6ro 28BuscB$'=2Bre andBtoBstateBcourtBdigest.doc

M3ited 6 times for this legal issueN In re :iles, 05/ %.4. .,2 %;).5.3al.,066%ankruptcy courtLs decision not to remand to state court defamation and other causes of action arising out of petitioning creditorsL conduct in preparing, signing, filing and prosecuting involuntary petitions that were ultimately dismissed as bad faith filings was not abuse of discretion7 federal interest in assuring fair and equitable administration of bankruptcy system and in policing abuses predominated over any arguable state interest. 0+ U.S.3.;. E */,0!b" . M3ited 6 times for this legal issueN In re )acific Cas 9 Glec. 3o., 0+* %.4. * %ankr.H.8.3al.,0660 4emoved state court causes of action, in which creditor sought to recover for alleged fraudulent or otherwise unlawful transfers of assets of debtor'utility, belonged exclusively to estate, and not to individual creditor, and therefore would not be remanded to state court. M3ited 6 times for this legal issueN In re )acific Cas 9 Glec. 3o., 0+* %.4. * %ankr.H.8.3al.,0660 4emoved state court causes of action, in which municipality sought to recover, on behalf of ratepayers, for alleged conversion of assets of debtor'utility, belonged exclusively to estate, and thus would not be remanded to state court. <n re C)ap!an, 132 2.R. 153 $2an>r. .3.<//.,Sep 20, 1991' ;U#HD4I#O D( #HG %;HK4U)#3O 3DU4# #D 4G:;H8 M*0N Dne final issue is whether a bankruptcy udge has the authority to enter an order of remand. 3ourts are split on this issue. See In re Tandem 2nterprises" Ltd!" *0/ %.4. 0+-, 0+/ n. 0 !%ankr.H.8.Ill.*55*"7 In re -atson9'ahane+" Inc!" .6 %.4. ,.+, ,+0 !%ankr.H.8.Ill.*5+." !both cases finding that bankruptcy udges have authority to remand as udicial officers of the district court, under 0+ U.S.3. E */,0!b""7 and In re 'ill91raft" ,. %.4. at ,-,'-2 !bankruptcy courts may remand because a remand is a core proceeding which involves the administration of the estate under E *,.!b"!0"!;"". However, compare with -estern Helicopters" Inc! v! Hiller &viation" Inc!" 5. %.4. *, . !G.8.3al.*5++" and In re 0ewman" 2* %.4. 0., 05'-6 !%ankr.8.H.:.*5+2" !both cases finding that because remand is a non'appealable order, it may not be entered by an ;rticle I bankruptcy udge". #his court holds that it has the authority to remand. 0+ U.S.3. E */,0!a" states that claims may be removed to the Idistrict courtJ and makes no mention of the bankruptcy courts. However, since the bankruptcy udges collectively

comprise a unit of the district court, claims may be removed to bankruptcy court, and they are considered to have been removed to a unit of the district court. In re *ianakas" ,2 %.4. ./., .,* !H.8.Ill.*5+," . Under 0+ U.S.3. E *,*, bankruptcy udges are udicial officers of the district court, and E */,0!b" states that Iany court to which such claim or cause of action is removed may remand such claim or cause of action.J #herefore, because under E */,0!b", a case is remanded from the court to where it was removed, and a bankruptcy udge presides over his or her court as a udicial officer of the district court, it must be inferred that a bankruptcy court may remand claims which have been removed to it. See In re (1#1 Tandem 2nterprises" *0/ %.4. at 0+/ n. 0 !Ia bankruptcy court may remand a cause of action as a unit of the district courtJ" and In re -atson9'ahane+" .6 %.4. at ,+0 !Iit must be reasoned that remand by the %ankruptcy 3ourt is the same as remand by the 8istrict 3ourtJ". (urthermore, the *556 amendment to E */,0!b" strengthened the bankruptcy courtLs authority to order remands by allowing district courts to hear appeals from bankruptcy court remands, thereby eliminating former 3onstitutional concerns about authority of an ;rticle I court. In re Tandem 2nterprises" *0/ %.4. at 0+/ n. 0. #herefore this 3ourt will order remand. However, if this court lacks authority to remand, then this opinion will stand as a recommendation for remand when and if the issue is considered by the 8istrict 3ourt. 3DH31USIDH %ased on the foregoing, the court shall abstain from hearing this case under 0+ U.S.3. E *--/!c"!*", and enter an order remanding the mortgage foreclosure proceedings to the 3ircuit 3ourt of 3ook 3ounty, Illinois, pursuant to 0+ U.S.3. E */,0!b". However, the motion to abstain under 0+ U.S.3. E *--/!c"!0" will be denied. Ca/&6orn&a ;ra5t&5e ,u&deC 2an>rupt54 Kathleen ). :arch, Gsq. and <udge ;lan :. ;hart C)apter 1. ,o+ern&ng La*, .ur&"d&5t&on And Ienue 3. %ankruptcy 3ourt <urisdiction *. M*@-,6N <ntrodu5t&onC #he bankruptcy courts in each udicial district constitute a LunitL of the district court known as the Ybankruptcy courtY for that district. %ankruptcy udges are udicial officers of the district court. M0+ US3 E *,*N Gach federal district court is authoriFed to refer to the districtLs bankruptcy udges all bankruptcy cases and all proceedings arising under the %ankruptcy 3ode or arising in a bankruptcy case or related to a bankruptcy case . #he bankruptcy udges may exercise the authority conferred upon them as to any action, suit or proceeding, except as otherwise provided by law, or by rule or order of the district court. M0+ US3 EE *,*, *,.!a"7 see also In re 1asamont Investors" Ltd." supra, *52 %4 at ,0*''bankruptcy court cannot expand its urisdiction by udicial decreeN 0. M*@-,*N Exer5&"e o6 2an>rupt54 Court .ur&"d&5t&on 3ependent on 3&"tr&5t Court Re6erra/C %efore a bankruptcy udge can validly exercise any power, the federal district court must refer the matter to the bankruptcy court. #he reference can occur by blanket order or on a case'by'case basis. ?irtually all federal districts have adopted rules or orders automatically referring to the bankruptcy udges all matters that can be heard by them under 0+ US3 EE *,*'*,+. MSee 38 3; Cen. Drder 022, *6T5T+/N Some districts, by local rule or order, however, have placed restrictions on the reference of urisdiction to the bankruptcy court. MSee H8 3; 1%4 ,6**' *!b"''civil proceeding pending in district court when bankruptcy petition filed referred to bankruptcy udge only upon order of district udge before whom proceeding is pendingN a. M*@-,0N L&!&tat&on" on po*er" de"p&te re6erra/C %ankruptcy courts are, of course, sub ect to the urisdictional limitations placed on the district courts ! see V 7)768 ff.". In addition, as non';rticle III courts, bankruptcy courts may not exercise certain powers despite a reference of urisdiction by the district court@ !*" M*@-,-N 9a&+er o6 6&/&ng 6ee"C ; bankruptcy court generally lacks authority to waive prepayment of court filing fees because it is not a Ycourt of the United StatesY under 0+ US3 E /,*. MIn re Perroton !5th 3ir. *550" 5,+ (0d ++5, +5*N

!a" M*@-,-.*N Ex5ept&onGG6&/&ng 6ee" 6or &nd&gent C)apter 7 de8tor"C #he bankruptcy court may waive certain filing fees !including case filing fees" for individual 3hapter . debtors who have income of less than *,6Z of the income official poverty line !as defined by the Dffice of :anagement and %udget" applicable to a family of the siFe involved and who are unable to pay that fee in installments. M0+ US3 E *5-6!f"N

!-" M*@-2,N San5t&on" a*ard" under 28 USC J 1927K 3ourts have also split on whether bankruptcy courts are empowered to assess sanctions under 0+ US3 E *50. !authoriFing Yany court of the United StatesY to assess attorney fees and costs sanctions against an attorney or other person who Ymultiplies the proceedings ... unreasonably and vexatiouslyY". #he Hinth 3ircuit follows the apparent ma ority view that bankruptcy courts are not Ycourt!s" of the United StatesY as defined in 0+ US3 E /,* and thus lack the E *50. sanction power. MIn re Sandoval !5th 3ir. %;) *55," *+2 %4 /56, /5,'/52''%;) Yseemingly lacksY E *50. sanction power7 see also In re 1ourtes+ Inns" Ltd!" Inc! !*6th 3ir. *55/" /6 (-d *6+/, *6+,'*6+.''bankruptcy courts are not Ycourts of the United StatesY and thus cannot award E *50. sanctionsN !a" M*@-22N Co!!entC Sandoval, supra, predated the Hinth 3ircuit decision in Yochum, supra !bankruptcy court power to award fees under 02 US3 E ./-6, V 7)<E6". ;rguably, the reasoning in Yochum begs for a reexamination of the 3ircuitLs position regarding the E *50. sanction power. M*@-2.'-25N .eserved. b. M*@-.6N 9&t)dra*a/ o6 re6eren5e to 8an>rupt54 5ourtC ;s stated, bankruptcy court urisdiction is wholly dependent upon district court referrals !V 7)<E7 ff.". #he district court also has the power to withdraw any case or matter referred to the bankruptcy court $ack to the district court for determination. M0+ US3 E *,.!d"N !*" M*@-.*N Ca"e or pro5eed&ngC #he district court can withdraw an entire $ankruptc+ case or limit withdrawal to a particular proceeding in the case !leaving the bankruptcy udge to hear and determine the underlying case". !a" M*@-.0N Co!!entC 8istrict courts rarely withdraw the reference of an entire bankruptcy case. It is much more common for the district court to withdraw the reference with respect to particular proceedings or motions, and after ruling on these matters, re9refer the proceedings back to the bankruptcy court. !0" M*@-.-N %andator4 or d&"5ret&onar4C &ithdrawal of a reference may be mandatory or discretionary@ !a" M*@-./N %andator4 *&t)dra*a/ $pro5eed&ng" on/4' *)ere Lot)erL 6edera/ /a* &n+o/+edC ; proceeding !but not the entire case" referred to a bankruptcy udge must be withdrawn where the district court determines that resolution of the proceeding depends on both bankruptcy law and Yother laws of the United States regulating organiFations or activities affecting interstate commerce.Y M0+ US3 E *,.!d"N Y3ongress has unequivocally provided that where other federal laws are involved which spark interstate commerce concerns, those cases must be submitted to ;rticle III courts.Y MIn re &merican Solar ing 1orp. !&8 #P *5++" 50 %4 06., 065N *" M*@-.,N Re/at&+e &!portan5e o6 Lot)erL 6edera/ /a*C However, courts disagree regarding the standard for triggering a E *,.!d" mandatory withdrawal !there is yet no controlling Hinth 3ircuit authority on the issue"@ a" M*@-.2N I&e* reMu&r&ng *&t)dra*a/ *)ene+er Lot)erL 6edera/ /a* &n+o/+edC Dne theory suggests that E *,.!d" must be interpreted literally, requiring withdrawal Ywhenever consideration of the !nonbankruptcy" federal laws is involved.Y MSee In re &merican Solar ing 1orp!, supra, 50 %4 at 065 !noting this view but not adopting it"N b" M*@-..N I&e* reMu&r&ng *&t)dra*a/ on/4 *)en Lot)erL /a* /&>e/4 to a66e5t out5o!eC :any courts require withdrawal only Yif a proceeding arises in a #itle ** case and presents a non'#itle ** federal question which will affect the outcome of the proceeding.Y

MIn re 1ontemporar+ Lithographers" Inc! !:8 H3 *55*" *0. %4 *00, *0.'*0+ !emphasis added"7 In re &merican Solar ing 1orp! , supra, 50 %4 at 065'0*6 ''YIn other words, substantial and material claims of non'bankruptcy federal law should be in issueY7 see (nited States v! /ne Parcel of .eal Propert+" 1ommonl+ nown as Star .te! Box 7<=A" *lenwood" -ash! 1ount+" /r! !8 D4 *550" *-. %4 +60, +6/'+6,''likely consideration of federal civil forfeiture laws mandates withdrawal7 In re 1ontinental &irlines 1orp! !S8 #P *5+," ,6 %4 -/0, -26''mandatory withdrawal where federal labor law is material to proceedingLs resolutionN c" M*@-.+N I&e* /&n>&ng !andator4 *&t)dra*a/ to Lot)erL /a* en6or5ed 84 6edera/ agen54C Still a third view is even more restrictive, mandating withdrawal of a bankruptcy proceeding only where the nonbankruptcy statute !YotherY federal law" !i" is administered and enforced by a federal agenc+ and !ii" provides for exclusive review by the federal udiciary of the federal agencyLs decisions. MSee In re Blackman !%3 8 83 *5+," ,, %4 /-., //5'/,6N M*@-.5'-+/N .eserved. !b" M*@-+,N 3&"5ret&onar4 *&t)dra*a/ $5a"e or pro5eed&ng' 6or L5au"e ")o*nLC (or Ycause shown,Y the district court ma+ withdraw, in whole or in part, any case or proceeding referred to a bankruptcy court. M0+ US3 E *,.!d"N *" M*@-+2N -a5tor" 5on"&deredC Y3auseY is determined on a case'by'case basis. (irst, the district court determines whether the matter is core or noncore !V 7)FE8 ff." in nature. 4eason@ #he bankruptcy courtLs determination of a noncore matter is sub ect to de novo review by the district court, so that withdrawal in the first instance may avoid unnecessary costs. %y contrast, hearing a core matter in district court could be an inefficient allocation of udicial resources, since bankruptcy courts have urisdiction to hear and determine those matters. MIn re /rion Pictures 1orp. !0nd 3ir. *55-" / (-d *65,, **6*N Dnce the coreTnoncore determination is made, courts consider the following goals@ W achieving uniformity in bankruptcy administration7 W reducing forum'shopping7 W conserving debtor and creditor resources7 and W expediting the bankruptcy process. MIn re /rion Pictures 1orp., supra, / (-d at **6*7 Holland &merica Ins! 1o! v! Succession of .o+ !,th 3ir. *5+," ... (0d 550, 5557 see also Securit+ Farms v! International Broth! of Teamsters" 1hauffeurs" -arehousemen 4 Helpers !5th 3ir. *55." *0/ (-d 555, *66+N M*@-+.N .eserved. 0" App/&5at&on W M*@-++N &here a bankruptcy proceeding and a case pending in the district court involve common issues of law and fact, Ythe overlapping of facts, transactions and issues in the two cases ... is good cause for withdrawal of the reference and consolidation with the district court proceeding.Y MBig .ivers 2lec! 1orp! v! *reen .iver 1oal 1o!" Inc . !&8 KO *55," *+0 %4 .,*, .,, !emphasis added"N W M*@-+5N Y3auseY existed for the withdrawal of reference and district court trial of a dispute arising out of a creditorLs claim to which the debtor ob ected, where the debtorLs shareholders asserted third party claims for fraud, and the parties agreed that all claims arose out of same contract and should be tried together. !;lso, the shareholders had a right to ury trial on their claims because they were noncore proceedings." M In re 7<7 LiHuidating 1orp. !S8 HO *55+" 000 %4 065, 0**N W M*@-56N 1ompare) #he district court exercised its discretion to decline a request to withdraw reference of a noncore proceeding brought by a 3hapter ** debtor to recover damages under a prepetition insurance contract. #he insurance company had not timely demanded a ury trial and no longer had a right thereto. :oreover, the bankruptcy court was already familiar with the issues presented7 thus, not withdrawing the reference would promote

udicial economy and uniform bankruptcy administration. M In re #aewoo 'otor &merica" Inc. !38 3; 066-" -60 %4 -6+, -*/'-*,N M*@-5*'-55N .eserved. !-" M*@/66N ;ro5edureC &ithdrawal of the reference !whether mandatory or discretionary" may be made by motion or sua sponte by the district court@ !a" M*@/6*N Sua "ponte *&t)dra*a/C #he district court may withdraw a proceeding or case on its own motion. M0+ US3 E *,.!d"N *" M*@/60N o t&!e /&!&tC ; sua sponte withdrawal can be ordered by the district court at any time for cause shown before the bankruptcy udge has decided the matter. MIn re Tom 1arter 2nterprises" Inc! !38 3; *5+/" // %4 26,, 26+7 In re &merican 1omm! Services" Inc! !8 U# *5++" +2 %4 2+*, 2+,N However, once a matter has been determined by the bankruptcy udge, some courts hold that district court urisdiction is limited to hearing an appeal from the bankruptcy udgeLs order. MIn re Pruitt !-rd 3ir. *556" 5*6 (0d **26, **2+N !b" M*@/6-N %ot&on to *&t)dra* re6eren5eC ; case or proceeding may also be withdrawn pursuant to motion filed by any interested party. M0+ US3 E *,.!d"N 1ross9refer) Ceneral motion practice is discussed in 1h! 7>. F(RMS W :otion to &ithdraw 4eference !:andatory &ithdrawal", see 1al! Prac! *uide 1iv! Pro! Before Trial Forms Form 7)&. W :otion to &ithdraw 4eference !8iscretionary &ithdrawal", see 1al! Prac! *uide 1iv! Pro! Before Trial Forms Form 7)B. *" M*@/6/N %ot&on )eard &n dist#ict co #t- ; motion to withdraw the entire case or any proceeding therein must be heard by a district court udge . M0+ US3 E *,.!d"7 (4%) ,6**!a" and ;dv. 3omm. Hote thereto''decision whether to withdraw is Ycommitted exclusively to the district courtY7 see also In re Healthcen9tral!com !5th 3ir. 066." ,6/ (-d ..,, .+/'.+,'' invalidating local bankruptcy court rule providing for automatic withdrawal of reference to district court if bankruptcy court determines one of the parties has a ury trial right and parties refuse to consent to bankruptcy court ury trialN 0" 9)ere !ot&on 6&/ed a" M*@/6,N 2an>rupt54 5ourtC #he ;dvisory 3ommittee Hote to (4%) ,6** states that motions to withdraw the reference should be filed with the clerk of the $ankruptc+ court. M;dv. 3omm. Hote to (4%) ,6**7 EFth 4 Harper v! Southmark 1orp! !8 U# *5++" +0 %4 ,56, ,5*',507 see also S8 3; 1%4 ,6**' *!a"''motion filed with bankruptcy court7 H8 3; 1%4 ,6**'0!a" !same"N [\ M*@/62N PR.C/0C1 P(02/1R- Gven so, not all bankruptcy courts have established procedures for transfer of withdrawal motions filed in bankruptcy court to the district court. %e sure to contact the clerk of the bankruptcy court to ensure proper transmittal and calendaring of your motion with the district court. !Oou may need to contact the district court clerk as well." b" M*@/6.N 3&"tr&5t 5ourtC Some local bankruptcy court rules provide that motions for withdrawal of the reference must be filed in district court. MSee 38 3; 1%4 ,6**'*!b"N -" M*@/6..*N -&/&ng 6ee genera//4 reMu&redC ; filing fee is generally required for the motion7 but no fee is required where the movant is@ ''the United States7 ''a federal agency7 ''a program funded from udiciary appropriations !including but not limited to agencies, organiFations and individuals providing services authoriFed under the 3riminal <ustice ;ct !*+ US3 E -662;"7 or ''a child support creditor or its representative. MSee <udicial 3onference Schedule of (ees''

%ankruptcy 3ourt :isc. (ee Schedule !following 0+ US3 E *5-6"N /" M*@/6+N :&!e 6or 6&/&ng !ot&onC ;lthough the statute requires motions for withdrawal to be YtimelyY made, no express deadline is specified in the statute or the (4%). 3ourts generally find withdrawal motions timely where made Yas promptly as possible in light of the developments in the bankruptcy proceeding.Y MSecurit+ Farms v! International Broth! of Teamsters" 1hauffeurs" -arehousemen 4 Helpers !5th 3ir. *55." *0/ (-d 555, *66., fn. !internal citation omitted"N a" App/&5at&on W M*@/65N ; motion to withdraw an adversary proceeding was not YtimelyY made where the proceeding had been pending for nearly a year and the involvement of YotherY federal law was evident on the face of the complaint. M In re *iorgio !8 4I *5+," ,6 %4 -0., -0+'-05 !mandatory withdrawal"N W M*@/*6N 1ikewise, a withdrawal motion was untimely where it was filed after the debtorLs 3hapter ** reorganiFation plan had been filed and disclosure statement approved. #he motion could have been filed earlier in the case when it would not have eopardiFed the reorganiFation prospects. MIn re Baldwin9 (nited 1orp! !S8 DH *5+," ,. %4 .,*, .,-'.,,7 compare In re Texaco Inc! !S8 HO *5++" +/ %4 5**, 506''withdrawal motion timely where debtorLs plan not on fileN M*@/**'/*/N .eserved. b" M*@/*,N L;re!atureL !ot&on"C If no pending issue exists for the bankruptcy court to decide, a motion to withdraw a proceeding will be considered premature. MSee In re 1hateauga+ 1orp! !S8 HO *5+5" *6/ %4 200, 20/ ''motion requesting mandatory withdrawal of G4IS; claim filed against debtorLs estate was premature where no ob ection to claim had been filedN c" M*@/*,.*N %andator4 *&t)dra*a/ !ot&on *)ere part&e" do not 5on"ent to 8an>rupt54 =ur4 tr&a/ $ ort)ern 3&"tr&5t'C In the Horthern 8istrict, where a bankruptcy udge determines a party has a ury trial right and all parties do not consent to a ury trial before the bankruptcy udge, the bankruptcy udge shall !i" certify to the district court that the proceeding is to be tried by a ury and the parties have not consented to a bankruptcy court ury trial7 and !ii" include a report of the status of the proceeding and a recommendation on when the matter would be suitable for withdrawal from the bankruptcy court. Upon such certification, the party who has demanded a ury trial shall promptl+ file a motion for withdrawal of the reference of the proceeding to be tried to a ury. MH8 3; 1%4 56*,'0!b"N *T M*@/*,.0N Co!pareGGno auto!at&5 *&t)dra*a/C ; local rule providing for automatic withdrawal of the reference to the district court where parties refused to consent to a bankruptcy ury trial was held inconsistent with ;cts of 3ongress and the (4%). MSee In re Healthcentral!com !5th 3ir. 066." ,6/ (-d ..,, .+/'.+,N ," M*@/*2N Aut)or&t4 o+er 5a"e or pro5eed&ng pend&ng d&"po"&t&on o6 !ot&onN !ot&on to "ta4C (iling a withdrawal motion does not stay administration of the case or proceeding before the bankruptcy udge. However, the bankruptcy udge !or, under certain circumstances, the district udge" may stay proceedings pending the district courtLs determination of the motion. M(4%) ,6**!c"N a" M*@/*.N Sta4 !ot&on )eard 84 e&t)er 5ourtC Gither the bankruptcy court or the district court may hear a motion to stay !or for relief from stay" in connection with a withdrawal motion. However, a stay motion filed with the district court must state why it has not been presented to the bankruptcy court. M(4%) ,6**!c"N !In practice, stay motions relating to withdrawal motions are ordinarily presented to the bankruptcy court." M*@/*+'/0+N .eserved.

[\ M*@/05N PR.C/0C1 P(02/1R- 8efendants with lawsuits pending in federal district court sometimes file bankruptcy to take advantage of the bankruptcy automatic stay and thereby delay the district court action. 1itigants who suddenly find their lawsuit stayed by the defendantLs bankruptcy may initially react by moving to withdraw the reference of the entire bankruptcy case to the district court. However, district courts rarely withdraw entire cases from bankruptcy courts. #he better practice is to move for relief from the automatic sta+ in the bankruptcy court to allow the district court lawsuit to proceed ! see V A)77FE ff!". :any bankruptcy udges will lift the stay where it is clear the bankruptcy case was filed as a delay tactic. !;nother option is to request withdrawal of the reference as to the relief from stay motion so the motion will be heard by the district court." !/" M*@/-6N Appe//ate re+&e* o6 *&t)dra*a/ order"C Cenerally, orders granting or denying withdrawal of the reference of cases or proceedings are interlocutory !not final" and nonappeala$le. 4eview by appeal is available only after final udgment in the underlying case. M In re issel 1o! !5th 3ir. *55." *6, (-d *-0/, *-0, !order denying motion for withdrawal"7 In re em$le !5th 3ir. *5+," ..2 (0d +60, +62 !order granting motion for withdrawal"7 see also 0+ US3 E *,+!a"!*"''district courtLs appellate urisdiction limited to Yfinal udgments, orders, and decreesYN Immediate review may be sought by petition for writ of mandamus. %ut, at least in the Hinth 3ircuit, the standards for granting mandamus review are strict ! Bauman v! (nited States #ist! 1t! !5th 3ir. *5.." ,,. (0d 2,6, 2,/'2,,". ;mong other things, it must be shown that the petitioner will be damaged or pre udiced in a way not correctable by later appeal, and that the district courtLs order is clearl+ erroneous. !See detailed discussion in CoelF 9 &atts, .utter *roup Prac! *uide) Federal 0inth 1ircuit 1ivil &ppellate Practice !#4C", 3h. *-." [\ M*@/-*N PR.C/0C1 P(02/1R- If you decide to seek writ review of a withdrawal order, file the writ petition immediately after the order is made. Oour petition should also ask the appellate court to sta+ the district courtLs withdrawal order. M*@/-0'//5N .eserved. -. M*@/,6N .ur&"d&5t&on 7+er LCoreL +". L on5oreL ;ro5eed&ng"GG<n ,enera/C ;ssuming the federal district court has issued a YblanketY referral order !V 7)<E7 ff!", bankruptcy udges may@ W hear and determine YcoreY proceedings7 and W hear !but not determine" YnoncoreY proceedings otherwise related to a case under #itle **. M0+ US3 E *,.!b" !*",!c"!*"N a. M*@/,*N LCoreL pro5eed&ng"C Y3oreY proceedings generally involve causes of action created or determined $+ the Bankruptc+ 1ode or administrative matters arising only in bankruptcy cases. M In re Harris Pine 'ills !5th 3ir. *55," // (-d */-*, */-,'*/-2N In addition, #itle 0+ of the U.S. 3ode contains a nonexclusive list of *2 specific core proceedings !V 7)E88 ff.". M0+ US3 E *,.!b"!0"N !*" M*@/,0N <dent&5a/ to Lar&"&ng underL and Lar&"&ng &nL pro5eed&ng"C 3ore proceedings are identical to proceedings that Yarise underY or Yarise in a case underY #itle ** ! see V 7)>6 ff.". MIn re Harris Pine 'ills, supra, // (-d at */-,7 In re Turner !%3 H8 3; *552" *5- %4 ,/+, ,,*N !0" M*@/,-N 2an>rupt54 =udge ma3 enter 6&na/ orderO=udg!entC %ankruptcy udges may enter final orders and udgments in core proceedings !reviewable, however, on appeal by the district court or %ankruptcy ;ppellate )anel". M0+ US3 E *,.!b"!*"N !a" M*@/,-.*N ot !andator4C #he statute does not reHuire bankruptcy udges to hear core proceedings7 it simply grants them the power to do so if they choose. M Hopkins v! Plant Insulation 1o! !H8 3; 0662" -/5 %4 +6,, +*6N b. M*@/,/N L on5oreL re/ated pro5eed&ng"C %ankruptcy udges can hear''but not determine''YnoncoreY proceedings Yotherwise related to a case under title **.Y M0+ US3 E *,.!c"!*"N !*" M*@/,,N L on5oreL de6&nedC YIf the proceeding does not invoke a substantive right created by the

federal bankruptcy law and is one that could exist outside of bankruptcy it is not a core proceeding7 it may be related to the bankruptcy because of its potential effect, but ... it is an otherwise related or non' core proceeding.Y MIn re Harris Pine 'ills !5th 3ir. *55," // (-d */-*, */-, !emphasis in original7 internal quotes and citation omitted"N !a" M*@/,2N L7t)er*&"e re/ated toLC ; proceeding is Yrelated toY a bankruptcy case !so as to be within bankruptcy court urisdiction to hear it" if the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy. See discussion at V 7)778 ff. !b" App/&5at&on W M*@/,.N 8ebtorLs causes of action for breach of contract, interference with contractual relations and bad faith breach of contract were noncore. M In re -orld Solar 1orp! !%3 S8 3; *5++" +* %4 26-, 26+'2657 see also In re 2astport &ssocs! !5th 3ir. *55*" 5-, (0d *6.*, *6..'' debtorLs suit against municipality for declaratory relief re state law real property development rights could have been brought in state court !regardless of debtorLs bankruptcy" and is noncoreN W M*@/,+N 8ebtorLs counterclaim to set aside a trusteeLs sale, involving only state law causes of action, is not a YcoreY proceeding dealing with federal bankruptcy concerns, such as restructuring the debtor'creditor relationship. MIn re -orcester !5th 3ir. *5+." +** (0d *00/, *005, fn. ,N W M*@/,5N State law claims asserted against the debtorLs principal shareholder in his individual capacity were Ynoncore.Y MIn re 1inematronics" Inc! !5th 3ir. *556" 5*2 (0d *///, */,6N W M*@/26N 8ebtorLs action against defendant for money for goods sold and delivered, on an account stated or open book account, was a noncore related action. M In re (nited States Bedding 1o!" Inc! !%3 38 3; *5+," ,0 %4 +.,, +.+N M*@/2*'/25N .eserved. $$!0" M*@/.6N A8"ent 5on"ent, 8an>rupt54 5ourt 5annot enter 6&na/ orderO=udg!entC ; bankruptcy udge does not have power to render a final udgment or order in noncore related proceedings unless all parties consent thereto !V 7)FGE". Instead, the bankruptcy udge must submit proposed findings of fact and conclusions of law to the district court, which the district court reviews de novo. M0+ US3 E *,.!c"!*"7 (4%) 56--7 In re 'ann !5th 3ir. *556" 56. (0d 50-, 50,'502N !a" M*@/.*N Co!pareGG&nter/o5utor4 order"C %ankruptcy courts may enter interlocutory orders in noncore related proceedings !e.g., orders on motions in limine re admissibility of evidence". Interlocutory orders need not be submitted to the district court. M In re 1astro !5th 3ir. *556" 5*5 (0d *6., *6+'*65N !b" M*@/.0N 3e no+o re+&e* 84 d&"tr&5t 5ourtC It is up to the district court udge to enter any final udgment or order on noncore matters''after considering the bankruptcy udgeLs proposed findings and conclusions, and Yreviewing de novo matters to which any party has timely and specifically ob ected.Y M0+ US3 E *,.!c"!*"7 see also In re 'ann, supra, 56. (0d at 50,'502N #he district udge may accept, re ect or modify the proposed findings of fact or conclusions of law, or recommit the matter to the bankruptcy udge with instructions. M(4%) 56--!d"N *" M*@/.-N 2road d&"5ret&on re !anner o6 re+&e*C #he manner in which a de novo review is conducted lies within the district courtLs broad discretion. MSee .osen90ovak &uto 1o! v! Hon, !+th 3ir. *5+2" .+- (0d .-5, ./-N (or example, the district court is not reHuired to conduct new hearings or take additional evidence !although it may do so". However, the district udge must review the entire record and reach an independent udgment regarding matters to which any party has timely and specifically ob ected. M(4%) 56--!d"7 see also In re 1astro !5th 3ir. *556" 5*5 (0d *6., *6+N M*@/./N .eserved. !-" M*@/.,N 2an>rupt54 5ourt po*er to enter =udg!ent *&t) part&e"P 5on"entC %ankruptcy courts properly may enter final orders and udgments in noncore YrelatedY proceedings with the consent of all

parties to the proceeding. M0+ US3 E *,.!c"!0"7 In re 'ann !5th 3ir. *556" 56. (0d 50-, 5027 see In re #aniels9Head 4 &ssocs! !5th 3ir. *5+." +*5 (0d 5*/, 5*+ ''Y; related proceeding with the consent of the parties functionally has the same effect as a core proceeding, permitting the bankruptcy court to ... enter a final udgment, order, or decreeYN !a" M*@/.2N L&!&tat&onGG"u8=e5t !atter =ur&"d&5t&on reMu&redC Sub ect matter urisdiction, however, cannot be conferred by agreement. #hus, the partiesL consent to entry of a final order or udgment is of no effect if the bankruptcy court lacks urisdiction over the matter. M In re 1r+stal 'fg! 4 Packaging" Inc! !H8 I1 *5+2" 26 %4 +*2, +067 see also In re 1it+ -ide Press" Inc! !%3 G8 ); *5+5" *6. %4 2+, .6N !b" M*@/..N Expre"" 5on"ent reMu&red &n ad+er"ar4 pro5eed&ng"C 3ase law at one time indicated that the requisite party consent could be implied by the failure to ob ect to the bankruptcy courtLs power to enter a final udgment. MSee In re #aniels9Head 4 &ssocs!, supra, +*5 (0d at 5*+'5*5N However, that authority predated an amendment to (4%) .6*0!b", which now states explicitly that final orders and udgments Yshall notY be entered by a bankruptcy udge in noncore proceedings Yexcept with the express consent of the parties.Y MSee (4%) .6*0!b" !emphasis added", and ;dv. 3omm. Hote to *5+. ;mend.7 Home Ins! 1o! v! 1ooper 4 1ooper" Ltd! !.th 3ir. *5+5" ++5 (0d ./2, ./5''Yonly written consent sufficesYN *" M*@/.+N Co!pareGG!ot&on !atter"C (4%) .6*0!b" applies only to adversar+ proceedings !it is in )art ?II of the (4%), governing adversary proceedings7 see (4%) .66*". #hus, implied consent may suffice on bankruptcy motions. MSee In re -indmill Farms 'gmt! 1o! !%3 S8 3; *556" **2 %4 .,,, .2*'.20'' implied consent to bankruptcy courtLs determination of lease assignment and sale motion7 see also (4%) 56*/!c" !4ule .6*0 is not among the adversary proceeding rules made applicable to motion matters"N M*@/.5N .eserved.

<n re ;erroton, 958 -.2d 889, #0 USL9 2590, 2# Co//&er 2an>r.Ca".2d 890, 22 2an>r.Ct.3e5. 1152, 2an>r. L. Rep. ; 74,510 $9t) C&r.,%ar 09, 1992' 8ebtorLs appeal was dismissed by the %ankruptcy ;ppellate )anel for failure to pay required filing fees, and his motion to proceed in forma pauperis was denied. He appealed pro se. #he 3ourt of ;ppeals, 3hoy, 3ircuit <udge, held that bankruptcy court is not a Icourt of the United StatesJ within meaning of statute allowing any court of the United States to permit court proceeding without requiring payment of fees and costs, and thus lacks authority to waive payment of statutorily required filing fees. ;ffirmed. &est Headnotes 011 2an>rupt54 51 2190

,* %ankruptcy ,*II 3ourts7 )roceedings in Ceneral ,*II!3" 3osts and (ees ,*k0*56 k. In (orma )auperis )roceedings. :ost 3ited 3ases %ankruptcy court is not a Icourt of the United StatesJ within meaning of statute allowing any court of the United States to permit court proceeding without requiring payment of fees and costs, and thus lacks authority to waive payment of statutorily required filing fees. 0+ U.S.3.;. EE /,*, *5*,!a", *50., *5-6, *5-6!a'c". <n re 3an&e/"G@ead Q A""o5&ate", 819 -.2d 914, 2an>r. L. Rep. ; 71,852 $9t) C&r.$ e+.',.un 15, 1987'

@o!e <n". Co. +. Cooper Q Cooper, Ltd., 889 -.2d 74#, 19 2an>r.Ct.3e5. 1#88, 2an>r. L. Rep. ; 73,15# $7t) C&r.$<//.' o+ 13, 1989' Insurer which had issued Iclaims madeJ malpractice policy to law firm that later filed for bankruptcy brought adversary proceeding seeking declaratory udgment that policy was invalid because of misrepresentation on application form, including determination that coverage was not available for associates of law firm other than the misrepresenting sole shareholder or for plaintiffs in state court suits against the sole shareholder . #he %ankruptcy 3ourt, 4obert G. Cinsberg, <., held that misrepresentation vitiated policy with respect to misconduct of misrepresenting attorney shareholder, but that other attorneys, and firm in event of vicarious liability for their conduct, were entitled to coverage. #he United States 8istrict 3ourt for the Horthern 8istrict of Illinois, Gastern 8ivision, )rentice H. :arshall, <., affirmed, and insurer appealed. #he 3ourt of ;ppeals, Gasterbrook, 3ircuit <udge, held that@ !*" declaratory udgment determination was Ifinal,J for purposes of bankruptcy appeal, and !0" issues of whether adversary proceeding should be referred to bankruptcy court, whether resolution of policyLs application to associates and state court tort plaintiffs had potential effect on law firmLs bankruptcy estate, and whether claims were made with insurer andTor sufficiently asserted with insurer that estate might be affected by resolution of dispute should be addressed by district court, to resolve sub ect matter urisdiction questions, before 3ourt of ;ppeals reached merits of udgment by bankruptcy udge. ?acated and remanded. 031 2an>rupt54 51 2043$3'

,* %ankruptcy ,*I In Ceneral ,*I!3" <urisdiction ,*k06/- 3ore, Hon'3ore, or 4elated )roceedings in Ceneral7 Hexus ,*k06/-!-" k. 4elated )roceedings. :ost 3ited 3ases I4elatedness,J even if present, is not enough to permit bankruptcy udge to issue decision binding unless reversed on appeal7 statute provides for bankruptcy udges to make recommendations to district udge on IrelatedJ matters, rather than decisions, or alternatively permits district udge to refer proceeding to bankruptcy udge with consent of parties. 0+ U.S.3.;. E *,.!c"!*, 0"7 U.S.3.;. 3onst. ;rt. -, E * et seq. 041 2an>rupt54 51 2043$3'

,* %ankruptcy ,*I In Ceneral ,*I!3" <urisdiction ,*k06/- 3ore, Hon'3ore, or 4elated )roceedings in Ceneral7 Hexus ,*k06/-!-" k. 4elated )roceedings. :ost 3ited 3ases 2an>rupt54 51 2058.1

,* %ankruptcy ,*I In Ceneral ,*I!3" <urisdiction ,*k06,+ 3onsent to or &aiver of Db ections to <urisdiction or ?enue ,*k06,+.* k. In Ceneral. :ost 3ited 3ases !(ormerly ,*k06,+" Statute providing for bankruptcy udge to hear IrelatedJ proceeding and make recommendations or to make decision upon reference from district udge with consent of parties gives leading role to district udge, who makes initial

decision on recommendation of bankruptcy udge or decides whether to accept partiesL consent to referral to bankruptcy udge. 0+ U.S.3.;. E *,.!c"!*, 0"7 U.S.3.;. 3onst. ;rt. -, E * et seq. 051 2an>rupt54 51 2102

,* %ankruptcy ,*I In Ceneral ,*I!G" 4eference ,*k0*60 k. Issues 4eferrable7 ;utomatic 4eference. :ost 3ited 3ases Issues of whether insurerLs adversary proceeding seeking declaratory udgment regarding malpractice coverage for law firm should be referred to bankruptcy court, whether resolution of policyLs application to associates and state court tort plaintiffs had potential effect on law firmLs bankruptcy estate, and whether claims were made with insurer andTor sufficiently asserted with insurer that estate might be affected by resolution of dispute should be addressed by district court, to resolve sub ect matter urisdiction questions, before 3ourt of ;ppeals reached merits of declaratory udgment by bankruptcy udge. 0+ U.S.3.;. E *,.!c". ;ttorney 1awrence :. 3ooper embeFFled from accounts held by his firm, 3ooper 9 3ooper, 1td., of which he was sole shareholder. (or his sins he is doing time, and his firm has been cast into bankruptcy'a fitting d]nouement, for 3ooper stole money he held as trustee in other peopleLs bankruptcies. 3ooper 9 3ooper employed *0 other lawyers, and to protect their interests !as well as his own", 3ooper sought malpractice insurance from #he Home Insurance 3ompany. #he application form asked@ I8oes any lawyer Min the firmN know of any circumstances, act, error or omission that could result in a professional liability claim against him or his predecessors in businessRJ Dn behalf of the firm, 3ooper answered IHo.J ; truthful answer would have led any !sane" insurer to balk, but relying on 3ooperLs lie Home issued a Iclaims madeJ policy providing A* million of coverage !A,66,666 per occurrence" for the period ;pril *+, *5+2, to <une *+, *5+.. 8uring that time 3ooperLs crimes came to light7 he and his firm filed bankruptcy petitions. Home commenced an adversary proceeding in the law firmLs bankruptcy, naming as defendants 3ooper, the twelve other attorneys employed by the firm, and the plaintiffs in two suits filed in state court !one against 3ooper and the other against both 3ooper and associate Glliott 8unn". #he insurer sought a declaratory udgment that the policy of insurance is invalid because of 3ooperLs deceit. %ankruptcy <udge Cinsberg held that 3ooperLs lie vitiated the policy with respect to 3ooperLs delicts, whether the plaintiffs named him or the firm7 the court concluded that the other *0 lawyers !and the firm, in the event of vicarious liability" were entitled to coverage. #he district udge affirmed. M*N 3ooper 9 3ooperLs bankruptcy is ongoing7 the order is not IfinalJ in the traditional sense, and under 0+ U.S.3. E *,+!d" an appeal lies in a bankruptcy case only from a Ifinal decisionJ. &e asked the parties for supplemental briefs on appellate urisdiction and the urisdictional problems discussed below. ;fter considering these submissions, we conclude that the declaratory udgment wrapped up a dispute that would be a stand'alone case outside of bankruptcy7 actions to determine the validity and coverage of a policy of insurance are common. So the decision was IfinalJ in the practical sense that term takes in bankruptcy law. G.g., In re 'orse 2lectric 1o!" +6, (.0d 020 !.th 3ir.*5+2"7 In re Berke" +-. (.0d 05- !.th 3ir.*5++". ;ppellate urisdiction is secure7 sub ect'matter urisdiction is dubious. ; policy of insurance is an asset of the estate, and a request to determine its validity with respect to the debtor is a Icore proceedingJ over which a bankruptcy udge has urisdiction. Home wanted to resolve more than its entitlements vis9M9vis 3ooper 9 3ooper, however. It named as parties the firmLs *0 associates and the plaintiffs in two tort suits pending in state court. #he only apparent basis of sub ect'matter urisdiction is 0+ U.S.3. E *,.!c", which provides@ !*" ; bankruptcy udge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title **. In such proceeding, the bankruptcy udge shall submit proposed (749 findings of fact and

conclusions of law to the district court, and any final order or udgment shall be entered by the district udge after considering the bankruptcy udgeLs proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically ob ected. !0" Hotwithstanding the provisions of paragraph !*" of this subsection, the district court, with the consent of all the parties to the proceeding, may refer a proceeding related to a case under title ** to a bankruptcy udge to hear and determine and to enter appropriate orders and udgments, sub ect to review under section *,+ of this title. 3ongress enacted E *,.!c" in *5+/ in response to 0orthern Pipeline 1onstruction 1o! v! 'arathon Pipe Line 1o!" /,+ U.S. ,6, *60 S.3t. 0+,+, .- 1.Gd.0d ,5+ !*5+0", which held that bankruptcy udges, lacking the tenure and salary protections of ;rticle III, may not ad udicate contract and tort claims arising under state law. HomeLs request for a declaratory udgment settling the rights of 3ooper 9 3ooperLs employees and of plaintiffs in tort cases unrelated to the law firmLs bankruptcy would fall within 'arathon unless the new E *,.!c" provides for urisdiction in the bankruptcy court, and is constitutional as so applied. M-NM/N I4elatednessJ, even if present, is not enough to permit a bankruptcy udge to issue a decision binding unless reversed on appeal. ;nything less than a de novo decision by an ;rticle III udge leaves the 'arathon problem. Under E *,.!c"!*" bankruptcy udges make not decisions but recommendations to the district udge, so that the initial decision comes from an ;rticle III officer, cf. (nited States v! .addat," //. U.S. 22., *66 S.3t. 0/62, 2, 1.Gd.0d /0/ !*5+6" !system of recommendations sub ect to de novo review is constitutional"7 alternatively the district udge may refer a proceeding on the partiesL consent, E *,.!c"!0", which effectively waives the entitlement to the benefits of an initial ;rticle III decisionmaker. See *eras v! Lafa+ette #ispla+ Fixtures" Inc!" ./0 (.0d *6-. !.th 3ir.*5+/" ! 0+ U.S.3. E 2-2!c", which allows parties to consent to final decision by a magistrate, complies with ;rticle III". %oth branches of the statute give the leading role to the district udge, who makes the initial decision ! E *,.!c"!*"" or decides whether to accept the parties consent to referral !E *,.!c"!0"". M,N So far as we can tell, the district udge exercised neither function. #he bankruptcy udge did not transmit recommendations, followed by de novo review7 he entered a final decision, reviewed by appeal. ;ll would be well if the district udge had referred the case on consent under E *,.!c"!0", but there was no reference, and consent, if any, was presented only to the bankruptcy udge. #he bankruptcy udge asked for briefs concerning urisdiction and held that parties who did not respond had consented. Under %ankruptcy 4ules .66+ and .6*0, which went into force on ;ugust *, *5+., only written consent suffices. <n re @arr&", 590 -.3d 730, 73#, 2an>r. L. Rep. ; 81,#57, 09 Ca/. 3a&/4 7p. Ser+. 15,019 $9t) C&r.$Ca/.',3e5 21, 2009' 2a5>groundC 3hapter . debtor brought state'court action against bankruptcy trustee and other estate representatives, alleging that trustee and her agents breached a settlement agreement that was entered into during the course of his bankruptcy proceedings and was directly related to the administration of estate assets . (ollowing removal, the United States %ankruptcy 3ourt for the Southern 8istrict of 3alifornia granted defendantsL motions to dismiss, and debtor appealed. #he 8istrict 3ourt, &illiam B. Hayes, <., 066. &1 0/,2060, affirmed, and debtor appealed. @o/d&ng"C #he 3ourt of ;ppeals, %ea, 3ircuit <udge, held that@ !*" the bankruptcy court had Iarising inJ urisdiction to ad udicate debtorLs state'law contract claim7 !0" debtorLs claim that trusteeLs sale of estate assets was a breach of contract was a IcoreJ bankruptcy proceeding7 !-" the district court erred when it dismissed debtorLs suit for lack of sub ect matter urisdiction under the Barton doctrine7 !/" trustee was entitled to derived quasi' udicial immunity7 and !," individual appointed as special representative of the estate, as well as individualLs court'approved counsel, were entitled to derived quasi' udicial immunity.

;ffirmed. 031 2an>rupt54 51 2041.1

,* %ankruptcy ,*I In Ceneral ,*I!3" <urisdiction ,*k06/* %ankruptcy <urisdiction ,*k06/*.* k. In general. :ost 3ited 3ases %ankruptcy courtLs urisdiction is established by statute. 0+ U.S.3.;. EE *,.!a", *--/!b". 041 2an>rupt54 51 2043$2'

,* %ankruptcy ,*I In Ceneral ,*I!3" <urisdiction ,*k06/- 3ore, Hon'3ore, or 4elated )roceedings in Ceneral7 Hexus ,*k06/-!0" k. 3ore or non'core proceedings. :ost 3ited 3ases %ecause bankruptcy udges are not ;rticle III udges, the 3onstitution limits their ability to Iad udicate,J that is, to render a final udgment, to issues that are at the IcoreJ of the bankruptcy power. U.S.3.;. 3onst. ;rt. -, E * et seq. 051 2an>rupt54 51 2043$3'

,* %ankruptcy ,*I In Ceneral ,*I!3" <urisdiction ,*k06/- 3ore, Hon'3ore, or 4elated )roceedings in Ceneral7 Hexus ,*k06/-!-" k. 4elated proceedings. :ost 3ited 3ases $$%ankruptcy udge may hear a non'core proceeding that is otherwise related to a case under title **, but the bankruptcy udge may make only proposed findings of fact and conclusions of law to the district udge, who reviews all non'core matters de novo. 0+ U.S.3.;. E *,.!c"!*". M-N ; bankruptcy courtLs urisdiction is established by statute. 0+ U.S.3. E *--/!b" gives federal district courts sub ect matter urisdiction over Iall civil proceedings arising under title **, or arising (737 in or related to cases under title **.J (H0 0+ U.S.3. E *,.!a" allows district courts to refer any of these proceedings to bankruptcy courts. (H0. #itle ** of the United States 3ode contains the entire bankruptcy code. #his includes 3hapter ., 3hapter **, and 3hapter *- bankruptcy cases. M/NM,N However, because bankruptcy udges are not ;rticle III udges, the 3onstitution limits their ability to ad udicate'i.e., to render a final udgment'to issues that are at the IcoreJ of the bankruptcy power.(H- %ecause of this limitation, 0+ U.S.3. E *,.!b"!*" provides bankruptcy udges authority to make binding decisions only in Icore proceedingsJ (H/ that arise under or arise in a case under #itle **. $$; bankruptcy udge may hear a non'core proceeding that is otherwise related to a case under #itle **, but there, the bankruptcy udge may make only proposed findings of fact and conclusions of law to the district udge, who reviews all non'core matters de novo . 0+ U.S.3. E *,.!c"!*". (H-. See 0orthern Pipeline 1onstr! 1o! v! 'arathon Pipe Line 1o!" /,+ U.S. ,6, *60 S.3t. 0+,+, .1.Gd.0d ,5+ !*5+0" !plurality opinion". Horthern )ipeline filed bankruptcy, and shortly thereafter filed in the bankruptcy court a suit against :arathon for breach of contract relating to a pre'petition contract and

pre'petition conduct of :arathon. Id! at ,2, *60 S.3t. 0+,+. :arathon ob ected to the bankruptcy courtLs exercise of urisdiction over the claim because the bankruptcy udges lacked the constitutional protections of ;rticle III'salary protection and life tenure. Id! at ,2',., *60 S.3t. 0+,+. #he Supreme 3ourt, without ma ority opinion, held that bankruptcy court urisdiction over the claim was unconstitutional. Id! at +., *60 S.3t. 0+,+. )art of the rationale for the plurality was that ;rticle III required the federal udicial power to be exercised by ;rticle III udges with three exceptions@ !*" territorial courts, !0" courts'martial for the military, and !-" disputes involving public rights as opposed to private rights. Id! at 2,'.6. However, 'arathon has been interpreted narrowly. ; ma ority of the 3ourt in a later case clarified the holding in 'arathon was only that I3ongress may not vest in a non';rticle III court the power to ad udicate, render final udgment, and issue binding orders in a traditional contract action arising under state law.J Thomas v! (nion 1ar$ide &gric! Prods! 1o!" /.- U.S. ,2+, ,+/, *6, S.3t. --0,, +. 1.Gd.0d /65 !*5+," !emphasis added". <n re %ar")a//, #00 -.3d 1037, 2an>r. L. Rep. ; 81,717, 10 Ca/. 3a&/4 7p. Ser+. 3437, 2010 3a&/4 .ourna/ 3.A.R. 419# $9t) C&r.,%ar 19, 2010' %y way of comparison, E *,.!c"!*" authoriFes the bankruptcy udge to Yhear a proceeding that is not a core proceeding $ut that is otherwise related to a case under title **.Y 1ompare id! E *,.!c"!*" !emphasis added", with id! E *,.!b"!*" !authoriFing the bankruptcy court to Yhear and determine Y certain matters" !emphasis added". (or proceedings falling within E *,.!c"!*", the bankruptcy court is empowered only to Ysubmit proposed findings of fact and conclusions of law to the district court.Y Id! E *,.!c"!*". $$#hus, unless the parties consent to final determination by the bankruptcy udge, id! E *,.!c"!0", the responsibility to YdetermineY a YMnon'Ncore proceeding that is otherwise related to a case under title **Y always remains with the district court, id! E *,.!c"!*" !YM;Nny final order or udgment shall be entered by the district udge after considering the bankruptcy udgeLs proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically ob ected.Y". #he *5+/ ;ct does not specifically detail what it means for a civil proceeding to Yarise under title **,Y Yarise in a case under title **,Y Yor relate M N to a case under title **.Y Dur case law, however, holds that proceedings Yarise under title **Y if they Y&n+o/+e a 5au"e o6 a5t&on 5reated or deter!&ned 84 a "tatutor4 pro+&"&on o6 t&t/e 11 .Y 0n #e 4a##is5 590 -.3d at 737. Dn the other hand, civil proceedings Yarise in a case under title **Y when they are Ynot (1055 based on any right expressly created by title **, but nevertheless, would have no existence outside of the bankruptcy.Y In re 2astport &ssocs!" 5-, (.0d *6.*, *6.2'.. !5th 3ir.*55*" !quoting In re -ood" +0, (.0d 56, 52' 5. !,th 3ir.*5+.""7 see 0n #e 4a##is5 590 -.3d at 737. M(H0,N 1ike the (ourth, (ifth, and Gight 3ircuit 3ourts of ;ppeal, we adopted without modification the #hird 3ircuitLs definition of what constitutes a YrelatedY proceeding@ (H0,. See In re *oodman" 55* (.0d 2*-, 2*2'*. !5th 3ir.*55-" !discussing In re 2astport &ssociates and proceedings arising under title ** or arising in a case under title **"7 see also H.4.4ep. Ho. 5,',5,, at 2/6* !Sept. +, *5..", U.S.3ode 3ong. 9 ;dmin.Hews *5.+, p. ,52- !Y#he phrase Larising underL has a well defined and broad meaning in the urisdictional context. %y a grant of urisdiction over all proceedings arising under title **, the bankruptcy courts will be able to hear any matter under which a claim is made under a provision of title **.Y"7 3ollier V -.6*M/NMcNMiN !statutory language suggests that civil proceedings arise under title ** Ywhen the cause of action is one that is created by title **Y". #he usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy.... ;n action is related to bankruptcy if the outcome could alter the debtorLs right, liabilities, options, or freedom of action !either positively or negatively" and which in any way impacts upon the handling and administration of the bankrupt estate. In re Fiet," +,0 (.0d /,,, /,. !5th 3ir.*5++" !quoting Pacor" Inc! v! Higgins" ./- (.0d 5+/, 55/ !-d 3ir.*5+/"".

&ith this constitutional and statutory backdrop in mind, we turn to the question before us today@ whether the bankruptcy udge could Yhear and determine,Y as a Ycore proceedingM N arising under title **, or arising in a case under title **,Y ?ickie 1ynn :arshallLs counterclaim for tortious interference against )ierce :arshall. 0 M0N )ierce :arshall takes the position that even if a counterclaim is asserted in response to a proof of claim against the bankruptcy estate, such that it meets 3ongressL definition of a core proceeding contained in E *,.!b"!0"!3", the bankruptcy court cannot exercise Yfinal orderY urisdiction over it under E *,.!b"!*" unless the counterclaim Yarises underY or Yarises in a case underY the %ankruptcy 3ode. )ierce :arshall argues that ?ickie 1ynn :arshallLs claim neither Yarises underY nor Yarises in a case underY the %ankruptcy 3ode@ it is a state law counterclaim that could have been brought and was brought, at least in part, in a non'bankruptcy forum. %ecause there is nothing unique to bankruptcy about her claim, )ierce :arshall argues that the bankruptcy court could not, consistent with the 3onstitution, the 'arathon decision, and the bankruptcy courtLs statutory grant of power in E *,.!b"!*", enter a final udgment against him. M-N &e agree with )ierce :arshall that our case law presents a two'step approach. ; bankruptcy udge may only determine a claim that meets 3ongressL definition of a core proceeding and arises under or arises in title **. See 0n #e 4a##is5 590 -.3d at 737G41.

93F<39 BA94F(@<*: AA> A9D @FA*<,*C 2d *opyright L 2&&% !y *lar" Board an *allaghan a division of <ho son Aegal @u!lishing ,nc. **** <I,) D3*(?C9< ,) *(FFC9< <IF3(5I <IC J(9C 2&&% )(@@AC?C9< **** @AF< 2. <IC J(D,*,AA )<F(*<(FC ,9 BA94F(@<*: *IA@<CF '. J(F,)D,*<,39 ,,,. FC6CFFAA <3 BA94F(@<*: *3(F< A. *3FC @F3*CCD,95) Norton Bankruptcy Law and Practice 2d 4:72 2 'M%2. ,n general

whether the party **consents to entry of final orders or #udg ent !y the !an"ruptcy #udge. **<he sa e is re+uired !y Ban"ruptcy Fule 9&2%8a;8$; and8e;83; concerning re oved proceedings. <he reason is that #urisdiction cannot !e created !y consent, n%& nor ay the protection of Article ,,, !e waived other than !y an e-press and intentional action.
;merican <urisprudence, Second Gdition 8atabase updated <uly 06*6 %ankruptcy <oseph <. %assano, <.8.7 Gric <. 8awson, <.8.7 1aura Hunter 8ietF, <.8.7 4omualdo ). Gclavea, <.8.7 Gleanor 1.

Crossman, <.8., of the staff of the Hational 1egal 4esearch Croup, Inc.7 Clenda K. Harnad, <.8., of the staff of the Hational 1egal 4esearch Croup, Inc.7 ;lan <. <acobs, <.8.7 4achel Kane, <.8.7 <oseph #. 1atronica, <.8.7 <ack 1evin, <.8.7 1ucas :artin, <.8.7 Karl Dakes, <.8.7 :arie K. )esando, <.8.7 <effrey <. Shampo, <.8.7 Gric 3. Surette, <.8.7 and :itchell &aldman, <.8. I. (undamentals of %ankruptcy )ractice 3. Dverview of Selected ;spects of %ankruptcy )rocedure 0. Specific :atters and )roceedings a. <urisdiction7 <udgments and Drders7 3hange of ?enue !*" <urisdictional :atters #opic Summary 4eferences J 99. 3e no+o re+&e* &n non5ore pro5eed&ng" 9e"tP" Ae4 u!8er 3&ge"t &estLs Key Humber 8igest, %ankruptcy -or!" (ederal )rocedural (orms E 5@-,5 ; bankruptcy udge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under #itle ** and, in such proceeding, is to submit proposed findings of fact and conclusions of law to the district court for entry of any final order or udgment by the district udge after considering the bankruptcy udgeLs proposed findings and conclusions and reviewing de novo those matters to which any party has timely and specifically ob ected.M*N In noncore proceedings so heard, the bankruptcy clerk must serve forthwith copies of the bankruptcy udgeLs proposed findings and conclusions on all parties by mail and note the date of mailing on the docket.M0N &ithin *6 days after being served with a copy of the proposed findings and conclusions, a party may serve and file with the clerk written ob ections which identify the specific proposed findings or conclusions ob ected to and state the grounds for such ob ections7 a party may respond to another partyLs ob ections within *6 days after being served with a copy thereof.M-N #he bankruptcy udge may, for cause, extend the time for filing ob ections by any party for a period not to exceed 06 days from the expiration of the time otherwise prescribed7 a request to extend the time for filing ob ections must be made before the time for filing ob ections has expired, except that a request made no more than 06 days after the expiration of the time for filing ob ections may be granted upon a showing of excusable neglect.M/N #he district udge must make a de novo review upon the record or, after additional evidence, of any portion of the bankruptcy udgeLs findings of fact or conclusions of law to which specific written ob ection has been made.M ,N #he district udge may accept, re ect, or modify the proposed findings of fact or conclusions of law, receive further evidence, or recommit the matter to the bankruptcy udge with instructions.M2N CU%ULA:<IE SU;;LE%E : Statutes@ (ed. 4. %ankr. ). 56--!b" was amended, effective 8ecember *, 0665, to change the time limits for both serving and filing written ob ections to proposed findings of fact and conclusions of law, and responding thereto, from *6 to */ days. (ed. 4. %ankr. ). 56--!c" was amended, effective 8ecember *, 0665, to change the period a bankruptcy udge may, for cause, extend the time for filing ob ections from a period not to exceed 06 to a period not to exceed 0* 06/-!*", 06/-!0"

days. 0E 3 7- SU;;LE%E :1

M(H*N 0+ U.S.3.;. E *,.!c"!*". 3ore proceedings are discussed in EE .,0 to +62. M(H0N (ed. 4. %ankr. ). 56--!a". M(H-N (ed. 4. %ankr. ). 56--!b". M(H/N (ed. 4. %ankr. ). 56--!c". M(H,N (ed. 4. %ankr. ). 56--!d". M(H2N (ed. 4. %ankr. ). 56--!d". ;merican <urisprudence, Second Gdition 8atabase updated <uly 06*6 %ankruptcy <oseph <. %assano, <.8.7 Gric <. 8awson, <.8.7 1aura Hunter 8ietF, <.8.7 4omualdo ). Gclavea, <.8.7 Gleanor 1. Crossman, <.8., of the staff of the Hational 1egal 4esearch Croup, Inc.7 Clenda K. Harnad, <.8., of the staff of the Hational 1egal 4esearch Croup, Inc.7 ;lan <. <acobs, <.8.7 4achel Kane, <.8.7 <oseph #. 1atronica, <.8.7 <ack 1evin, <.8.7 1ucas :artin, <.8.7 Karl Dakes, <.8.7 :arie K. )esando, <.8.7 <effrey <. Shampo, <.8.7 Gric 3. Surette, <.8.7 and :itchell &aldman, <.8. I?. %ankruptcy <udges and 3ourt )ersonnel7 United States #rustees ;. %ankruptcy <udges *. In Ceneral a. Dverview of 3ourt Structure #opic Summary 4eferences J 391. 3ependen5e on d&"tr&5t 5ourt 9e"tP" Ae4 u!8er 3&ge"t &estLs Key Humber 8igest, %ankruptcy 06*2, 06/* to 06/0, 0*0* to 0*0&estLs Key Humber 8igest, <udges * to ,2 In response to the Supreme 3ourtLs holding in Horthern )ipeline, 3ongress increased the control of the district courts over bankruptcy cases and proceedings, in part by designating bankruptcy udges a YunitY of the district court. M*N %ankruptcy udges are permitted to exercise their udicial function only if cases are referred to them under a general order of referenceM0N by the district courtM-N which is vested with urisdiction over bankruptcy cases and proceedings.M/N #he district court is authoriFed, but is not required, to refer any or all such cases and proceedings to the bankruptcy udges for the district.M,N However, the district court may, for cause shown, withdraw any case or proceeding, in whole or in part, which was referred to the bankruptcy udges for the district and under certain circumstances is required to do so.M2N %ankruptcy udges are granted the power to hear and determine all cases filed under the %ankruptcy 3ode,M.N sub ect to review by the district court.M+N #he district court has urisdiction to hear appeals from final udgments, orders, and decrees7M 5N from

interlocutory orders increasing or reducing a bankruptcy debtorLs time for filing a reorganiFation plan under section **0*!d" of 3hapter **7M*6N and with leave of the court, from other interlocutory orders and decrees.M**N (urther, the district court has urisdiction to hear appeals, with leave of the court, from interlocutory orders and decrees of bankruptcy udges entered in cases and proceedings referred to the bankruptcy udges by the district court.M *0N ;n appeal under this provision can be taken only to the district court for the udicial district in which the bankruptcy udge is serving.M*-N In Ynoncore proceedingsY heard by a bankruptcy udge, the bankruptcy udge may not enter the final udgment or order, but must submit proposed findings of fact to the district court, and any final order or udgment shall be entered by the district udge after considering the bankruptcy udgeLs proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically ob ected.M*/N In reaching a decision, the bankruptcy udge should follow the decisions of the district court.M*,N #he bankruptcy court is bound by the decisions of the district courtM*2N even if a bankruptcy udge concludes that the clear nonconflicting precedent of the district court was wrongly decided.M*.N &here there are conflicting decisions by two district court udges of the same district, a bankruptcy court is free to follow either decision7 however, where the most recent expression of law by the district court specifically overrules a prior decision of the bankruptcy court within the district, the bankruptcy court is bound by that district court decision.M*+N

^
;merican <urisprudence, Second Gdition 8atabase updated <uly 06*6

%ankruptcy <oseph <. %assano, <.8.7 Gric <. 8awson, <.8.7 1aura Hunter 8ietF, <.8.7 4omualdo ). Gclavea, <.8.7 Gleanor 1. Crossman, <.8., of the staff of the Hational 1egal 4esearch Croup, Inc.7 Clenda K. Harnad, <.8., of the staff of the Hational 1egal 4esearch Croup, Inc.7 ;lan <. <acobs, <.8.7 4achel Kane, <.8.7 <oseph #. 1atronica, <.8.7 <ack 1evin, <.8.7 1ucas :artin, <.8.7 Karl Dakes, <.8.7 :arie K. )esando, <.8.7 <effrey <. Shampo, <.8.7 Gric 3. Surette, <.8.7 and :itchell &aldman, <.8. I?. %ankruptcy <udges and 3ourt )ersonnel7 United States #rustees ;. %ankruptcy <udges *. In Ceneral b. <udicial and 4ulemaking )owers #opic Summary 4eferences J 395. .ud&5&a/ po*er 9e"tP" Ae4 u!8er 3&ge"t &estLs Key Humber 8igest, %ankruptcy 06*2, 0*0* to 0*02 &estLs Key Humber 8igest, <udges 0/ to -+ )owers granted to bankruptcy udges under the %ankruptcy 3ode may be exercised only by reference to the udicial power granted bankruptcy udges under the <udicial 3ode.M*N #he <udicial 3ode was designed to give bankruptcy udges the greatest power possible to fulfill their functions under the %ankruptcy 3ode, while preventing the exercise of the Y udicial power of the United States,Y in accordance with the principles enunciated by the Supreme 3ourt in the Horthern )ipeline decision.M0N

Under the <udicial 3ode, bankruptcy udges are granted the power to hear and determine all cases filed under the %ankruptcy 3ode,M-N and all core proceedings arising under the %ankruptcy 3ode,M/N and may enter appropriate orders and udgments, sub ect to review as provided by statute.M,N ;ra5t&5e ,u&deC &hile the statute does not define core proceedings, it sets forth a lengthy nonexclusive list of illustrations of core proceedings.M2N ; bankruptcy udge may hear proceedings which are not core but are otherwise related to a bankruptcy case,M .N or so'called YnoncoreY proceedings. In noncore proceedings, bankruptcy udges are required to submit proposed findings of fact and conclusions of law to the district court for entry of a final udgment or order.M+N Gxcept as otherwise provided by law or by rule or order of the district court, each bankruptcy udge of a district, as a udicial officer of the district court, may exercise the udicial power conferred under the <udicial 3ode upon the bankruptcy udges for that district.M5N ; bankruptcy udge is more than a moderator7 he or she is charged with seeing that law is properly administered.M*6N #he bankruptcy court has an independent duty pursuant to statute to refer a matter to the United States ;ttorneyLs Dffice whenever reasonable grounds exist for a belief that a violation of the bankruptcy laws has occurred.M**N 78"er+at&onC %ankruptcy courts have broad equitable powers to act in a manner not inconsistent with the %ankruptcy 3ode.M*0N

^
M(H*N ** U.S.3.;. E *6,!c"7 0+ U.S.3.;. E *,..

^
M(H0N Kellogg v. 3hester, .* %.4. -2 !H.8. #ex. *5+."7 In re 8erryberry, .0 %.4. +./ !%ankr. H.8. Dhio *5+.". M(H-N 0+ U.S.3.;. E *,.!b"!*". M(H/N 0+ U.S.3.;. E *,.!b"!*". M(H,N 0+ U.S.3.;. E *,.!b"!*". M(H2N 0+ U.S.3.;. E *,.!b". M(H.N 0+ U.S.3.;. E *,.!c"!*". M(H+N 0+ U.S.3.;. E *,.!c"!*". M(H5N 0+ U.S.3.;. E *,*. M(H*6N In re 3ent. Idaho (orest )roducts, -*. %.4. *,6 !%ankr. 8. Idaho 066/".

$$M(H**N In re Halko, 06- %.4. 22+ !%ankr. H.8. Ill. *552".

M(H*0N In re Cardenhire, 006 %.4. -.2 !%.;.). 5th 3ir. *55+", revLd, 065 (.-d **/, !5th 3ir. 0666".

M(H*N In re 3oporacion de Servicios :edicos Hospitalarios de (a ardo, +6, (.0d //6 !*st 3ir. *5+2"7 &indsor 3ommunications Croup, Inc. v. Crant, ., %.4. .*- !G.8. )a. *5+,"7 Kellogg v. 3hester, .* %.4. -2 !H.8. #ex. *5+."7 In re Criffith, 0*, %.4. +5- !%ankr. :.8. ;la. *55."7 In re 1athrop, /5 %.4. ++, !%ankr. H.8. Ill. *5+,"7 In re 4omFek, ,6 %.4. .06 !%ankr. G.8. :ich. *5+,". M(H0N In re Criffith, 0*, %.4. +5- !%ankr. :.8. ;la. *55.". M(H-N 0+ U.S.3.;. E *,.!a". M(H/N 0+ U.S.3.;. E *--/. M(H,N 0+ U.S.3.;. E *,.!a". M(H2N 0+ U.S.3.;. E *,.!d". M(H.N 0+ U.S.3.;. E *,.!b"!*". ;s to udicial power of bankruptcy courts, generally, see E -5,. M(H+N 0+ U.S.3.;. E *,.!b"!*". M(H5N 0+ U.S.3.;. E *,+!a"!*". M(H*6N 0+ U.S.3.;. E *,+!a"!0". M(H**N 0+ U.S.3.;. E *,+!a"!-". M(H*0N 0+ U.S.3.;. E *,+!a". M(H*-N 0+ U.S.3.;. E *,+!a". M(H*/N 0+ U.S.3.;. E *,.!c"!*". M(H*,N In re &hitehorn, 55 %.4. .-/ !%ankr. H.8. #ex. *5+5". M(H*2N %ryant v. Smith, *2, %.4. *.2 !&.8. ?a. *55/"7 In re &right, *// %.4. 5/- !%ankr. S.8. Ca. *550". M(H*.N %ryant v. Smith, *2, %.4. *.2 !&.8. ?a. *55/". M(H*+N In re &right, *// %.4. 5/- !%ankr. S.8. Ca. *550".

*ourtsBdecisionsBasBauthorityBinBstateBcourtsBcontructionBofBstateBcon stitutionsBandBstatutesBdigest.doc
M3ited 0 times for this legal issueN 3ampbell v. Superior 3ourt, ,0 3al.4ptr.0d -+, 3al.;pp.0.8ist.,*552 (ederal opinions do not constitute binding interpretations of state law. M3ited 0 times for this legal issueN :c3ord v. :artin, *5* ). +5 3al.;pp.-.8ist.,*506 8ecisions of the federal courts construing state statutes are not controlling on the state courts.

M3ited * times for this legal issueN ;labama State (ederation of 1abor, 1ocal Union Ho. *6-, United %roth. of 3arpenters and <oiners of ;merica v. :c;dory, 2, S.3t. *-+/ U.S.;la.,*5/, #he United States Supreme 3ourt, asked to pass on constitutionality of state statute not yet construed or applied by state courts in manner anticipated, cannot make construction thereof which would be controlling on state courts. M3ited * times for this legal issueN 3ity of Dakland v. %uteau, *.5 ). *.6 3al.,*5*5 8ecisions of the federal courts construing state statutes are not controlling on the state courts. M3ited 6 times for this legal issueN 8onley v. 8avi, *6- 3al.4ptr.-d * 3al.;pp.-.8ist.,0665 8ecision of United States 3ourt of ;ppeals for the Hinth 3ircuit was not binding or controlling on 3alifornia appellate court with respect to whether state offense was one involving moral turpitude within meaning of prior version of real estate licensing statute. &estLs ;nn.3al.%us. 9 )rof.3ode E *6*.. !066.". M3ited 6 times for this legal issueN )eople v. Kroncke, +- 3al.4ptr.0d /53al.;pp.*.8ist.,*555 State courts, and not federal courts, have responsibility for interpreting their own state statutes. M3ited 6 times for this legal issueN United 3lerical Gmployees v. 3ounty of 3ontra 3osta, */0 3al.4ptr. .-, 3al.;pp.*.8ist.,*5.. In the absence of controlling state law in the field of labor relations, state court may look to federal law for guidance in interpreting state provisions whose language parallels that of federal statutes. M3ited 6 times for this legal issueN 1os ;ngeles 3ity High School 8ist. v. State %d. of GqualiFation, *2- ).0d /, 3al.;pp.-.8ist.,*5/, #he interpretation of a state statute is for state courts.

*ourtsBpreviousBdecisionsBasBcontrollingBorBasBprecedentsBdecisionsBof BusBcourtsBasBauthorityBinBotherBusBcourtsBinBgeneralBdigest.doc
M3ited ** times for this legal issueN Hart v. :assanari, 022 (.-d **,, 3.;.5.3al.,066* If a federal court must decide an issue governed by a prior opinion that constitutes binding authority, the later court is bound to reach the same result, even if it considers the rule unwise or incorrect7 binding authority must be followed unless and until overruled by a body competent to do so.

*ourtsBdecisionsBofBusBcourtsBasBauthorityBinBstateBcourtsBinBgeneralB digest.doc
M3ited /, times for this legal issueN ;S;43D Inc. v. Kadish, *65 S.3t. 06-. U.S.;riF.,*5+5 ;lthough state courts are not bound to adhere to federal standing requirements, they possess authority, absent provision for exclusive federal urisdiction, to render binding udicial decisions that rest on their own interpretations

of federal law. 0+ U.S.3.;. E *.-+ . M3ited /- times for this legal issueN In re #yrell <., +.2 ).0d ,*5 3al.,*55/ In absence of decision by United States Supreme 3ourt directly on point on issue of admissibility of evidence obtained by allegedly improper search or seiFure, State Supreme 3ourt must fulfill its independent state constitutional obligation to interpret federal constitutional guarantee against unreasonable searches and seiFures, recogniFing that decisions of lower federal courts are persuasive but not controlling. &estLs ;nn.3al. 3onst. ;rt. 06, E - 7 RU.S.3.;. 3onst.;mend. / . M3ited -. times for this legal issueN %ruce v. #erhune, -.2 (.-d 5,6 3.;.5.3al.,066/ &hile circuit law may be persuasive authority for purposes of determining whether a state court decision is an unreasonable application of Supreme 3ourt law, for purposes of habeas review of state court decisions, only the Supreme 3ourtLs holdings are binding on the state courts and only those holdings need be reasonably applied. 0+ U.S.3.;. E 00,/!d" . M3ited -0 times for this legal issueN )eople v. %radford, 5-5 ).0d 0,5 3al.,*55. 8ecisions of federal courts of appeals provide persuasive rather than binding authority on search and seiFure issues.

M3ited 0. times for this legal issueN 3hesapeake 9 D. 4y. 3o. v. :artin, ,* S.3t. /,U.S.?a.,*5-* (ederal Supreme 3ourtLs decision of federal questions bind state court. M3ited 02 times for this legal issueN )eople v. &illiams, 5/6 ).0d .*6 3al.,*55. 8ecisions of lower federal courts interpreting federal law are not binding on state courts. M3ited 0, times for this legal issueN Hagel v. #win 1aboratories, Inc., *-/ 3al.4ptr.0d /06 3al.;pp./.8ist.,066(ederal decisional authority is neither binding nor controlling in matters involving state law. M3ited 00 times for this legal issueN (letcher v. &eir, *60 S.3t. *-65 U.S.Ky.,*5+0 )rinciples which evolve on basis of decisional law dealing with appeals within federal court system are not necessarily based on any constitutional principle, and where they are not, states are free to follow or to disregard them so long as state procedure as a whole remains consistent with due process of law. U.S.3.;.3onst.;mend. */ .

M3ited 06 times for this legal issueN 8ebtor 4eorganiFers, Inc. v. State %d. of GqualiFation, *-6 3al.4ptr. 2/ 3al.;pp.0.8ist.,*5.2 8ecisions of lower federal courts, even on federal questions, are not binding upon state 3ourt of ;ppeal. M3ited *. times for this legal issueN

(orsyth v. <ones, 2. 3al.4ptr.0d -,. 3al.;pp./.8ist.,*55. ;bsent controlling United States Supreme 3ourt opinion, 3alifornia state court makes independent determination of federal law and, where federal circuits are in conflict, decisions of the Hinth 3ircuit are entitled to no greater weight than those of other circuits. M3ited *2 times for this legal issueN Scheiding v. Ceneral :otors 3orp., 55- ).0d 552 3al.,0666 If a precedent of United States Supreme 3ourt has direct application in a case, yet appears to rest on reasons re ected in some other line of decisions, federal 3ourts of ;ppeals, and state courts applying federal law, should follow the case which directly controls, leaving to Supreme 3ourt the prerogative of overruling its own decisions. M3ited *, times for this legal issueN Gtcheverry v. #ri';g Service, Inc., 55- ).0d -22 3al.,0666 &hile Supreme 3ourt is not bound by decisions of the lower federal courts, even on federal questions, they are persuasive and entitled to great weight. M3ited */ times for this legal issueN Gtcheverry v. #ri';g Service, Inc., 55- ).0d -22 3al.,0666 &here lower federal precedents are divided or lacking, state courts must necessarily make an independent determination of federal law, but where the decisions of the lower federal courts on a federal question are both numerous and consistent, a state court should hesitate to re ect their authority. M3ited */ times for this legal issueN Heck v. Humphrey, **/ S.3t. 0-2/ U.S.Ind.,*55/ State courts are bound to apply federal rules in determining preclusive effect of federal'court decisions on issues of federal law. M3ited *0 times for this legal issueN Semtek Intern. Inc. v. 1ockheed :artin 3orp., *0* S.3t. *60* U.S.:d.,066* States cannot give federal court udgments in federal question cases merely whatever preclusive effect they would give their own udgments, but must accord them effect prescribed by Supreme 3ourt. M3ited *0 times for this legal issueN Oee v. 3ity of Gscondido, 0./ 3al.4ptr. ,,* 3al.;pp./.8ist.,*556 &hile federal circuit court precedent on issues of federal law is entitled to substantial deference, it is not binding. M3ited *0 times for this legal issueN Oee v. 3ity of Gscondido, 0./ 3al.4ptr. ,,* 3al.;pp./.8ist.,*556 &hile federal circuit court precedent on issues of federal law is entitled to substantial deference, it is not binding. M3ited ** times for this legal issueN Glliot v. ;lbright, 0,. 3al.4ptr. .20 3al.;pp.2.8ist.,*5+5 &hen deciding questions of federal law, decisions of Hinth 3ircuit 3ourt of ;ppeals are not given greater weight by state courts than other 3ircuit 3ourts where the various federal circuits are in conflict. M3ited *6 times for this legal issueN

%utcher v. #ruck Ins. Gxchange, 50 3al.4ptr.0d ,0* 3al.;pp.0.8ist.,0666 )reclusive effect of a prior udgment of a federal court is determined by federal law, at least where the prior udgment was on the basis of federal question urisdiction. M3ited *6 times for this legal issueN Howard 3ontracting, Inc. v. C.;. :ac8onald 3onstruction 3o., Inc., +- 3al.4ptr.0d ,56 3al.;pp.0.8ist.,*55+ (ederal decisional authority is neither binding nor controlling in matters involving state law. M3ited *6 times for this legal issueN #oledo, St. 1. 9 &.4. 3o. v. Slavin, -, S.3t. -62 U.S.Dhio,*5*, ; controlling federal question is involved in a state udgment refusing to measure liability of interstate carrier in an action by an employ] for personal in uries, by the GmployersL 1iability ;ct, /, U.S.3.;. E ,* et seq. M3ited 5 times for this legal issueN &agner v. ;pex :arine Ship :anagement 3orp., *66 3al.4ptr.0d ,-3al.;pp.*.8ist.,0666 &hile decisions of the United States Supreme 3ourt are binding on state courts on federal questions, the decisions of the lower federal courts, while persuasive, are not binding. M3ited 5 times for this legal issueN Camble v. Ceneral (oods 3orp., 0+6 3al.4ptr. /,. 3al.;pp.*.8ist.,*55* &here action is filed in 3alifornia state court and defendant claims the suit is barred by final federal udgment, 3alifornia law will determine res udicata effect of prior federal court udgment on basis of whether federal and state actions involve same primary right. M3ited + times for this legal issueN )eople v. 4ooney, 00* 3al.4ptr. /5 3al.;pp.0.8ist.,*5+, 3alifornia Supreme 3ourt decisions holding that trash placed outside of a defendantLs house for collection was not Iabandoned propertyJ placed beyond protection (ourth ;mendment and state 3onstitution were based on both federal and state constitutional provisions, and were valid and binding authority that 3ourt of ;ppeal had to follow until either 3alifornia or United States Supreme 3ourt ruled on the issue. U.S.3.;. 3onst.;mend. / 7 R&estLs ;nn.3al.3onst. ;rt. *, E *- . M3ited . times for this legal issueN )eople ex rel. 4enne v. Servantes, *6- 3al.4ptr.0d +.6 3al.;pp.*.8ist.,066* #he 3ourt of ;ppeal is not bound by a federal circuit court opinion. M3ited . times for this legal issueN )eople v. :adrid, 5 3al.4ptr.0d .5+ 3al.;pp.2.8ist.,*550 In determining whether to exclude evidence seiFed pursuant to unlawful search or seiFure, 3ourt of ;ppeal is bound by decisions of United States Supreme 3ourt and by 3alifornia Supreme 3ourt cases interpreting those decisions7 R although decisions of lower federal courts are not binding precedent, they are persuasive authority. &estLs ;nn.3al. 3onst. ;rt. *, E 0+!d" . M3ited . times for this legal issueN Gstate of 8Lindia, *-/ 3al.4ptr. *2, 3al.;pp.*.8ist.,*5.2 (ederal decisions are in no event controlling in matter of state law.

M3ited 2 times for this legal issueN ;lameida v. State )ersonnel %d., *, 3al.4ptr.-d -+3al.;pp.-.8ist.,066/ (ederal case law is not binding on 3ourt of ;ppeal, although it may be in some circumstances persuasive and entitled to weight7 it is an appellantLs burden to demonstrate those circumstances. M3ited 2 times for this legal issueN #ully v. &orld Savings 9 1oan ;ssn., 2, 3al.4ptr.0d ,/, 3al.;pp.0.8ist.,*55. ;lthough 3alifornia 3ourt of ;ppeal is obligated to follow decisions of United States Supreme 3ourt, it is not bound by decisions of lower federal courts7 where lower federal court precedents are divided or lacking, state courts must necessarily make independent determination of federal law. &ichita 4oyalty 3o. v. 3ity Hat. %ank of &ichita (alls, ,5 S.3t. /06 U.S.#ex.,*5-5 State courts are not required to adopt rule which federal or other courts may consider the better one, or to be consistent in their decisions. M3ited 2 times for this legal issueN %elcher v. 3hambers, / ).3.1.<. *+5 3al.,*+.5 ; decision of the federal Supreme 3ourt on a federal question is controlling on the state courts. M3ited , times for this legal issueN )eople v. :e ia, 2, 3al.4ptr.-d ..2 3al.;pp.0.8ist.,066. 3alifornia 3ourt of ;ppeal is not bound by the decisions of lower federal courts. M3ited , times for this legal issueN )eople v. )almer, /. 3al.4ptr.-d +2/ 3al.;pp.-.8ist.,0662 8ecisions of lower federal courts interpreting federal law are not binding on state courts.

_
M3ited / times for this legal issueN &agner v. ;pex :arine Ship :anagement 3orp., *66 3al.4ptr.0d ,-3al.;pp.*.8ist.,0666 In the absence of a controlling United States Supreme 3ourt opinion, state courts make an independent determination of federal law. M3ited / times for this legal issueN 3onrad v. %ank of ;merica, ,- 3al.4ptr.0d --2 3al.;pp.-.8ist.,*552 3ourt of ;ppeal is hesitant to re ect authority of federal decisions on questions of federal law where those decisions are both numerous and consistent. M3ited - times for this legal issueN :oses v. )ayne, ,,, (.-d ./0 3.;.5.&ash.,0665 Dnly definitive source of clearly established federal law under ;ntiterrorism and Gffective 8eath )enalty ;ct !;G8);" is the holdings of the Supreme 3ourt as of the time of the state court decision7 Rwhile circuit law may be persuasive authority for purposes of determining whether a state court decision is an unreasonable application of Supreme 3ourt law, only the Supreme 3ourtLs holdings are binding on the state courts and only those holdings need

be reasonably applied. 0+ U.S.3.;. E 00,/!d"!*". M3ited - times for this legal issueN )acific Shore (unding v. 1oFo, /0 3al.4ptr.-d 0+3al.;pp.0.8ist.,0662 Dn federal questions, the decisions of the lower federal courts are persuasive and entitled to great weight, but where lower federal precedents are divided or lacking, state courts must necessarily make an independent determination of federal law. M3ited - times for this legal issueN :etalclad 3orp. v. ?entana Gnvironmental DrganiFational )artnership, * 3al.4ptr.-d -0+ 3al.;pp./.8ist.,066Dn a federal question, the decisions of the United States Supreme 3ourt are binding on state courts7 however, the decisions of the lower federal courts, while persuasive, are not binding.

M3ited - times for this legal issueN <acobs v. 3%S %roadcasting, Inc., 05* (.-d **.3.;.5.3al.,0660 Under 3alifornia law, the preclusive effect of a prior federal udgment is a matter governed by federal law. M3ited - times for this legal issueN Gast Buincy Services 8ist. v. Ceneral ;ccident Ins. 3o. of ;merica, *6, 3al.4ptr.0d 25/ 3al.;pp.-.8ist.,066* Dn questions of state law even United States Supreme 3ourt decisions are not controlling M3ited - times for this legal issueN )eople v. Soto, ., 3al.4ptr.0d 26, 3al.;pp.,.8ist.,*55+ (ederal decisions are particularly compelling, although not controlling, on issues of statutory interpretation of state law, where 3alifornia statute is based on another federal statute or (ederal 4ules. M3ited - times for this legal issueN )eople v. A+,50* United States 3urrency, -/ 3al.4ptr.0d 0*6 3al.;pp./.8ist.,*55/ 3alifornia courts are not bound by federal decisions, including those of United States Supreme 3ourt on nonfederal questions, but such decisions are instructive and entitled to great weight, particularly if stateLs statute is derived from federal statute. M3ited - times for this legal issueN Security'(irst Hat. %ank v. U.S., *+* (.Supp. 5** S.8.3al.3.8iv.,*526 ; federal trial udge is not bound by the opinion of even his own 3ourt of ;ppeals, in a case which may be differentiated. M3ited 0 times for this legal issueN <)I &estcoast 3onst., 1.). v. 4<S 9 ;ssociates, Inc., 2+ 3al.4ptr.-d 5* 3al.;pp.*.8ist.,066. (ederal decisional authority is neither binding nor controlling in matters involving state law. M3ited 0 times for this legal issueN %arrett v. 4osenthal, */2 ).-d ,*6 3al.,0662 &here lower federal precedents are divided or lacking, state courts must necessarily make an independent

determination of federal law, but where the decisions of the lower federal courts on a federal question are both numerous and consistent, state courts should hesitate to re ect their authority. M3ited 0 times for this legal issueN 3redit :anagers ;ssLn of 3alifornia v. 3ountrywide Home 1oans, Inc., ,6 3al.4ptr.-d 0,5 3al.;pp./.8ist.,0662 1ower federal court decisions on federal questions are persuasive authority, but they are not binding on 3ourt of ;ppeal. M3ited 0 times for this legal issueN 3ounty of 1os ;ngeles v. Superior 3ourt, /0 3al.4ptr.-d -56 3al.;pp.0.8ist.,0662 ;lthough federal law controls the substantive aspects of a federal civil rights claim filed in state court, state rules of evidence and procedure apply unless application of those rules would affect the plaintiffLs substantive federal rights. /0 U.S.3.;. E *5+- . M3ited 0 times for this legal issueN Cates v. 8iscovery 3ommunications, Inc., *6* ).-d ,,0 3al.,066/ Dn matters of federal constitutional law, the 3alifornia Supreme 3ourt is bound by the decisions of the United States Supreme 3ourt. M3ited 0 times for this legal issueN State of 3al. ex rel. State 1ands 3om. v. Superior 3ourt, 566 ).0d 2/+ 3al.,*55, ;lthough federal law may apply to oceanfront property owned by, or where ownership derives from, federal government, it is clear that state law applies at least to dispute involving inland property over which federal government has no interest.

M3ited 0 times for this legal issueN Service Gmployees Internat. Union v. 3ounty of 1os ;ngeles, 0., 3al.4ptr. ,6+ 3al.;pp.0.8ist.,*556 State courts are not bound by decisions of lower federal courts even on federal questions. M3ited 0 times for this legal issueN Hall v. Homura Securities International, 02+ 3al.4ptr. /, 3al.;pp.*.8ist.,*556 &hile lower federal court opinions on federal questions are not binding on state courts, they are entitled to great weight. M3ited 0 times for this legal issueN In re SloanLs Gstate, -, 3al.4ptr. *2. 3al.;pp.*.8ist.,*528ecisions of federal courts in matters of state law are not binding on state courts but they may be persuasive. M3ited 0 times for this legal issueN ;lbert )ick 9 3o. v. <ordan, */, ). ,62 3al.,*5*/ ; decision of the federal Supreme 3ourt on a federal question is controlling on the state courts.

M3ited 0 times for this legal issueN United 1and ;ssLn v. )acific Imp. 3o., 25 ). *62/

3al.,*560 ; decision of the federal Supreme 3ourt on a federal question is controlling on the state courts. M3ited 0 times for this legal issueN :ayor and ;ldermen of 3ity of Hashville v. 3ooper, .- U.S. 0/. U.S.#enn.,*+2. 8ecisions of courts of the United States within their sphere of action are as conclusive as laws of 3ongress made in pursuance of the 3onstitution. M3ited * times for this legal issueN )eople v. )once, 50 3al.4ptr.-d 22. 3al.;pp.0.8ist.,0665 #he 3ourt of ;ppeal is not bound by the decisions of the lower federal courts even on federal questions.

M3ited * times for this legal issueN :iller v. 3ollectors Universe, Inc., .0 3al.4ptr.-d *5/ 3al.;pp./.8ist.,066+ (ederal decisions on matters of 3alifornia law, although entitled to respect and careful consideration, are not binding or conclusive on the courts of the state.

M3ited * times for this legal issueN %urdette v. 3arrier 3orp., .* 3al.4ptr.-d *+, 3al.;pp.-.8ist.,066+ ; diversity claim resolved in a federal action is sub ect to the law of res udicata of the state in which the federal court sits. M3ited * times for this legal issueN %urdette v. 3arrier 3orp., .* 3al.4ptr.-d *+, 3al.;pp.-.8ist.,066+ #he claim'preclusive effect of the prior federal udgment is determined by 3alifornia law. M3ited * times for this legal issueN :c:ullen v. Haycock, ,/ 3al.4ptr.-d 226 3al.;pp.0.8ist.,066. 8ecisions of lower federal courts are not binding on the 3ourt of ;ppeal, even on federal questions. M3ited * times for this legal issueN :aughan v. Coogle #echnology, Inc., /5 3al.4ptr.-d +2* 3al.;pp.0.8ist.,0662 ;lthough 3ourts of ;ppeal are obligated to follow the decisions of the United States Supreme 3ourt, they are not bound by the decisions of the lower federal courts. M3ited * times for this legal issueN (raFier Huts, Inc. v. ;merican ;C 3redit, /2 3al.4ptr.-d +25 3al.;pp.,.8ist.,0662 3ourt of ;ppeal is not bound by federal decisions on questions of state law. M3ited * times for this legal issueN 4itschel v. 3ity of (ountain ?alley, /6 3al.4ptr.-d /+ 3al.;pp./.8ist.,0662 #he decisions of lower federal courts interpreting federal law are not binding on state courts.

M3ited * times for this legal issueN #ruong v. Drange 3ounty SheriffLs 8ept., 05 3al.4ptr.-d /,6 3al.;pp./.8ist.,066, State courts look to federal law to determine the validity of an action under federal civil rights statute7 state law that would produce a different outcome in state than in federal court under federal civil rights statute must yield to federal law. /0 U.S.3.;. E *5+- . M3ited * times for this legal issueN :c1aughlin v. &alnut )roperties, Inc., */ 3al.4ptr.-d -25 3al.;pp.0.8ist.,066/ &hen 3ourt of ;ppeal must apply and interpret federal law, decisions of the United States Supreme 3ourt are binding. M3ited * times for this legal issueN :c1aughlin v. &alnut )roperties, Inc., */ 3al.4ptr.-d -25 3al.;pp.0.8ist.,066/ &hen 3ourt of ;ppeal must apply and interpret federal law, lower federal court decisions, including those of the Hinth 3ircuit 3ourt of ;ppeals, are not binding. M3ited * times for this legal issueN :c1aughlin v. &alnut )roperties, Inc., */ 3al.4ptr.-d -25 3al.;pp.0.8ist.,066/ &hen 3ourt of ;ppeal must apply and interpret federal law and federal precedent is either lacking or in conflict, the court will independently determine federal law. M3ited * times for this legal issueN ;lan v. Superior 3ourt, - 3al.4ptr.-d -.. 3al.;pp.0.8ist.,0668ecisions of federal district and circuit courts, although entitled to great weight, are not binding on state courts even as to issues of federal law. M3ited * times for this legal issueN ;dams v. )acific %ell 8irectory, - 3al.4ptr.-d -2, 3al.;pp./.8ist.,0663alifornia 3ourt of ;ppeal is not required to adhere to decisions by the federal appellate courts, even on questions of federal law. M3ited * times for this legal issueN ;dams v. )acific %ell 8irectory, - 3al.4ptr.-d -2, 3al.;pp./.8ist.,066;lthough decisions by the federal appellate courts are not binding on the 3alifornia 3ourt of ;ppeal, such decisions are given great weight, particularly in the context of their determination of federal law. M3ited * times for this legal issueN :etalclad 3orp. v. ?entana Gnvironmental DrganiFational )artnership, * 3al.4ptr.-d -0+ 3al.;pp./.8ist.,066In the absence of a controlling United States Supreme 3ourt opinion, the state courts make an independent determination of federal law. M3ited * times for this legal issueN Covernor Cray 8avis 3om. v. ;merican #axpayers ;lliance, *0, 3al.4ptr.0d ,-/ 3al.;pp.*.8ist.,0660 &here the federal circuit courts of appeals are in conflict, the decisions of the United States 3ourt of ;ppeals for the Hinth 3ircuit are entitled to no greater weight than those of other circuits.

M3ited * times for this legal issueN &ayne v. 8H1 &orldwide Gxpress, 05/ (.-d **.5 3.;.5.3al.,0660 ;lthough there is no general federal common law, there are enclaves of federal udge'made law which bind the States. M3ited * times for this legal issueN Susag v. 3ity of 1ake (orest, **, 3al.4ptr.0d 025 3al.;pp./.8ist.,0660 State law that would produce a different outcome on a E *5+- claim in state than in federal court must yield to federal law. /0 U.S.3.;. E *5+- . M3ited * times for this legal issueN )eople ex rel. 4enne v. Servantes, *6- 3al.4ptr.0d +.6 3al.;pp.*.8ist.,066* In the absence of a controlling United States Supreme 3ourt decision on a federal question, a state court is free to make an independent determination of law. M3ited * times for this legal issueN 3hoate v. 3ounty of Drange, *6- 3al.4ptr.0d --5 3al.;pp./.8ist.,0666 In interpreting federal statutes, 3ourt of ;ppeal is bound to follow controlling opinions of United States Supreme 3ourt, but is not bound to follow federal circuit or district court decisions. M3ited * times for this legal issueN 1agatree v. 1uce, (orward, Hamilton 9 Scripps, ++ 3al.4ptr.0d 22/ 3al.;pp.0.8ist.,*555 ;lthough decisions of the United States Supreme 3ourt are not binding with respect to state law, they are entitled to respectful consideration. M3ited * times for this legal issueN )eople ex rel. 1ungren v. 3ommunity 4edevelopment ;gency, 2, 3al.4ptr.0d .+2 3al.;pp./.8ist.,*55. (ederal decisions are persuasive authority in state courts, particularly in areas which involve state statutes or rules based on federal enactments, but federal decisions, although entitled to respect and careful consideration, are not binding or conclusive. M3ited * times for this legal issueN In re 1aFar, 066 %.4. -,+ %ankr.3.8.3al.,*552 State courts are required to enforce applicable federal law in suits brought before them. M3ited * times for this legal issueN )eople v. )rince, ,* 3al.4ptr.0d *-+ 3al.;pp.*.8ist.,*552 State court is bound only by precedent of United States Supreme 3ourt on issues of federal constitutional law. M3ited * times for this legal issueN KalfountFos v. Hartford (ire Ins. 3o., // 3al.4ptr.0d .*/ 3al.;pp.-.8ist.,*55, 3alifornia 3ourt of ;ppeal is not bound by decisions of federal 3ourt of ;ppeals on questions of 3alifornia law. M3ited * times for this legal issueN :yers %uilding Industries, 1td. v. Interface #echnology, Inc., *. 3al.4ptr.0d 0/0 3al.;pp.0.8ist.,*55-

3ourt of ;ppeal is not bound by decisions of Hinth 3ircuit on matters of 3alifornia law. M3ited * times for this legal issueN In re 8iaF, *. 3al.4ptr.0d -5, 3al.;pp.2.8ist.,*553ourt of ;ppeal is not bound by decision of federal district court nor are federal decisions controlling on questions of interpretation of state law. M3ited * times for this legal issueN San <ose #eachers ;ssn. v. Superior 3ourt, .66 ).0d *0,0 3al.,*5+, Summary disposition by United States Supreme 3ourt, while not binding upon that 3ourt, carries full precedential authority for other courts, including state Supreme 3ourts. M3ited * times for this legal issueN :ueller v. &alker, 0*- 3al.4ptr. //0 3al.;pp./.8ist.,*5+, ;bsent an indication of any purpose upon part of state authority, whether legislative or udicial, to evade some prior decision of United States Supreme 3ourt or federal 3ongress, principles of finality protecting the parties to the litigation, res udicata or collateral estoppel, are, within broad limits of fundamental fairness, solely the concern of state law since it is for the public good that there be an end to litigation. M3ited * times for this legal issueN )eople v. Superior 3ourt !8odson", *52 3al.4ptr. /-* 3al.;pp.0.8ist.,*5+State court is not required to follow decisions of lower federal courts on constitutional issues. M3ited * times for this legal issueN #homas C. (erruFFo, Inc. v. Superior 3ourt, *2- 3al.4ptr. ,.3al.;pp./.8ist.,*5+6 Heither federal district court procedures nor decisions are binding on 3alifornia 3ourt of ;ppeal. M3ited * times for this legal issueN )eople v. Soto, -6* ).0d /, 3al.;pp.*.8ist.,*5,2 In view of fact that rules applicable to illegal searches are not based on due process, but are mere rules of evidence, 8istrict 3ourt of ;ppeal is not bound by decisions of the United States Supreme 3ourt on the sub ect. M3ited * times for this legal issueN :orrow v. 3oast 1and 3o., +/ ).0d -6* 3al.;pp./.8ist.,*5-+ 8ecisions of federal courts were entitled to great respect in the 8istrict 3ourt of ;ppeal, where the issues that were decisive of the appeal were decided there upon similar pleadings and evidence. M3ited * times for this legal issueN Glliott v. Superior 3ourt of San %ernardino 3ounty, */, ). *6* 3al.,*5*/ #he state Supreme 3ourt is not bound by decisions of the federal Supreme 3ourt, except in cases where the udgment might be reviewed as arising under the 3onstitution and laws of the United States. M3ited * times for this legal issueN (oss v. <ohnstone, **6 ). 05/ 3al.,*5*6 ; decision of the federal Supreme 3ourt on a federal question is controlling on the state courts.

M3ited * times for this legal issueN United 1and ;ssLn v. ;brahams, 0+ S.3t. ,25 U.S.3al.,*56+ ; decision of the United States Supreme 3ourt in a matter of federal urisdiction must be regarded as of binding authority on a state court of last resort. M3ited 6 times for this legal issueN 3oral 3onst., Inc. v. 3ity and 3ounty Df San (rancisco, *6 3al. 8aily Dp. Serv. 5+2* 3al.,06*6 &hile the lower federal courtsL decisions do not bind the 3alifornia Supreme 3ourt, the Supreme 3ourt gives them great weight when they reflect a consensus. M3ited 6 times for this legal issueN )arks v. :%H; ;merica %ank, H.;., *65 3al.4ptr.-d 0/+ 3al.;pp./.8ist.,06*6 3alifornia courts are not bound to follow federal court precedent7 however, numerous and consistent federal decisions may be particularly persuasive when they interpret federal law. M3ited 6 times for this legal issueN <ohnson v. 3ullen, 06*6 &1 *-/,0+H.8.3al.H.8iv.,06*6 &hile circuit law may be Ipersuasive authorityJ for purposes of determining under ;ntiterrorism and Gffective 8eath )enalty ;ct !;G8);" whether state court decision is unreasonable application of Supreme 3ourt law, only Supreme 3ourtLs holdings are binding on state courts and only those holdings need be reasonably applied . 0+ U.S.3.;. E 00,/!d". M3ited 6 times for this legal issueN <ohnson v. 3ullen, 06*6 &1 *-/,0+H.8.3al.H.8iv.,06*6 &hile circuit law may be Ipersuasive authorityJ for purposes of determining under ;ntiterrorism and Gffective 8eath )enalty ;ct !;G8);" whether state court decision is unreasonable application of Supreme 3ourt law, only Supreme 3ourtLs holdings are binding on state courts and only those holdings need be reasonably applied . 0+ U.S.3.;. E 00,/!d". M3ited 6 times for this legal issueN Karuk #ribe of Horthern 3alifornia v. 3alifornia 4egional &ater Buality 3ontrol %d., Horth 3oast 4egion, 06*6 &1 *06+/0/ 3al.;pp.*.8ist.,06*6 3ourt of ;ppeal is bound by decisions of the United States Supreme 3ourt in the construction and application of federal law. M3ited 6 times for this legal issueN In re ?ictor 1., *6 3al. 8aily Dp. Serv. 05,6 3al.;pp.*.8ist.,06*6 Gven on constitutional issues, 3ourt of ;ppeal is not bound by federal circuit court decisions. M3ited 6 times for this legal issueN )eople v. Superior 3ourt, 00/ ).-d +2 3al.,06*6 ; decision by the United States Supreme 3ourt, and especially a unanimous one, is entitled to respectful consideration by the 3alifornia Supreme 3ourt. M3ited 6 times for this legal issueN 3atsouras v. 8epartment of 3alifornia Highway )atrol, *6/ 3al.4ptr.-d -,0

3al.;pp./.8ist.,06*6 #he state courts of 3alifornia should apply federal law to determine whether a complaint pleads a cause of action under E *5+- sufficient to survive a general demurrer. /0 U.S.3.;. E *5+- . M3ited 6 times for this legal issueN 1ouie v. %(S 4etail and 3ommercial Dperations, 113, *6* 3al.4ptr.-d //* 3al.;pp.-.8ist.,0665 &here a prior federal udgment was based on federal question urisdiction, the preclusive effect of the prior udgment of a federal court is determined by federal law. 0+ U.S.3.;. E *--* . M3ited 6 times for this legal issueN 1ouie v. %(S 4etail and 3ommercial Dperations, 113, *6* 3al.4ptr.-d //* 3al.;pp.-.8ist.,0665 &here a prior federal udgment was based on diversity urisdiction, its preclusive effect is sub ect to federal common law, meaning the law of the state in which the federal court sits, if the state law is compatible with federal interests. 0+ U.S.3.;. E *--0 . M3ited 6 times for this legal issueN %earman v. 3alifornia :edical %d., 55 3al.4ptr.-d 26 3al.;pp.0.8ist.,0665 Immunity from liability under E *5+- of the (ederal 3ivil 4ights ;ct is governed by federal, not state law. /0 U.S.3.;. E *5+- . M3ited 6 times for this legal issueN <ohnson v. G'Q Ins. %rokerage, Inc., 5, 3al.4ptr.-d .+0 3al.;pp./.8ist.,0665 &hether a property interest exists is a matter of state law. M3ited 6 times for this legal issueN In re :arriage of )adgett, 5* 3al.4ptr.-d /., 3al.;pp.*.8ist.,0665 #he decisions of the lower federal courts, although entitled to great weight, are not binding on state courts. M3ited 6 times for this legal issueN In re :arriage of )adgett, 5* 3al.4ptr.-d /., 3al.;pp.*.8ist.,0665 #he decisions of the lower federal courts on federal questions are merely persuasive authority to state courts. M3ited 6 times for this legal issueN In re :arriage of )adgett, 5* 3al.4ptr.-d /., 3al.;pp.*.8ist.,0665 &here lower federal court precedents are divided or lacking, state courts must necessarily make an independent determination of federal law. M3ited 6 times for this legal issueN 8elgado v. Oates, 200 (.Supp.0d +,/ H.8.3al.,066+ &hile circuit law may be persuasive authority for purposes of determining whether a state court decision is an unreasonable application of Supreme 3ourt precedent, as would warrant federal habeas relief, only the Supreme 3ourtLs holdings are binding on the state courts and only those holdings need be reasonably applied. 0+ U.S.3.;. E 00,/!d". M3ited 6 times for this legal issueN Stone Street 3apital, 113 v. 3alifornia State 1ottery 3omLn, +6 3al.4ptr.-d -02 3al.;pp.0.8ist.,066+

1ower federal decisional authority is neither binding nor controlling in matters involving state law. M3ited 6 times for this legal issueN (rastaci v. ?apor 3orp., .6 3al.4ptr.-d /60 3al.;pp.*.8ist.,066. 3alifornia courts are not constrained by opinions of lower federal courts, even on federal questions. M3ited 6 times for this legal issueN #iffany ;. v. Superior 3ourt, ,5 3al.4ptr.-d -23al.;pp.0.8ist.,066. 8ecision of federal district court was not binding on 3alifornia 3ourt of ;ppeal. M3ited 6 times for this legal issueN )eople v. &ilmshurst, ,- 3al.4ptr.-d *-2 3al.;pp.-.8ist.,066. ; decision of a lower federal court does not have any binding force as precedent on the state court. M3ited 6 times for this legal issueN :acias v. 3ounty of 1os ;ngeles, ,6 3al.4ptr.-d -2/ 3al.;pp.0.8ist.,0662 In absence of United States Supreme 3ourt precedent on issue of officersL integral participation in conduct giving rise to constitutional right as requirement for E *5+- claim, the 3ourt of ;ppeal would make independent determination of issue, without according decisions of the Hinth 3ircuit 3ourt of ;ppeals greater weight than those of other circuits. /0 U.S.3.;. E *5+- . M3ited 6 times for this legal issueN Hood v. Santa %arbara %ank 9 #rust, /5 3al.4ptr.-d -25 3al.;pp.0.8ist.,0662 #he 3ourt of ;ppeal is not bound by lower federal appellate court decisions. M3ited 6 times for this legal issueN :cKell v. &ashington :ut., Inc., /5 3al.4ptr.-d 00. 3al.;pp.0.8ist.,0662 #he 3ourt of ;ppeal is not bound by decisions of the lower federal courts, even on questions of federal law. M3ited 6 times for this legal issueN Haberbush v. 3harles and 8orothy 3ummins (amily 1td. )artnership, /- 3al.4ptr.-d +*/ 3al.;pp.0.8ist.,0662 8ecisions of the lower federal courts on federal questions are persuasive but not binding on state courts. M3ited 6 times for this legal issueN )acific Shore (unding v. 1oFo, /0 3al.4ptr.-d 0+3al.;pp.0.8ist.,0662 8ecisions of lower federal courts interpreting federal law are not binding on state courts. M3ited 6 times for this legal issueN ;llegretti 9 3o. v. 3ounty of Imperial, /0 3al.4ptr.-d *00 3al.;pp./.8ist.,0662 3ourt of ;ppeal is not bound by lower federal court decisions. M3ited 6 times for this legal issueN )eople v. :c3oy, -, 3al.4ptr.-d -22 3al.;pp.,.8ist.,066, Gven on federal questions, Hinth 3ircuit 3ourt of ;ppeals cases do not bind the state courts.

M3ited 6 times for this legal issueN DvitF v. Schulman, -, 3al.4ptr.-d **. 3al.;pp.0.8ist.,066, 8ecisions by the Hinth 3ircuit have no greater persuasive force on 3alifornia courts than those of other circuits. M3ited 6 times for this legal issueN :c3ann v. 1ucky :oney, Inc., 05 3al.4ptr.-d /-. 3al.;pp./.8ist.,066, ;lthough federal court opinions are not binding on state courts as to interpretation of state law, state courts may rely upon the federal court opinions for their cogent reasoning and persuasive value. M3ited 6 times for this legal issueN )ower Standards 1ab, Inc. v. (ederal Gxp. 3orp., 02 3al.4ptr.-d 060 3al.;pp.*.8ist.,066, (ederal common law is truly federal law in the sense that, by virtue of the Supremacy 3lause, it is binding on state courts. U.S.3.;. 3onst. ;rt. 2, cl. 0 . M3ited 6 times for this legal issueN &hiteley v. )hilip :orris Inc., ** 3al.4ptr.-d +6. 3al.;pp.*.8ist.,066/ 8ecisions of the federal courts are not controlling on questions of state law. M3ited 6 times for this legal issueN In re )once 8e 1eon, *- 3al.4ptr.-d -*6 3al.;pp.0.8ist.,066/ ;lthough decisions of lower federal courts are not binding on state courts, they are entitled to great weight. M3ited 6 times for this legal issueN In re )once 8e 1eon, *- 3al.4ptr.-d -*6 3al.;pp.0.8ist.,066/ &hen it is useful to its analysis, the 3alifornia 3ourt of ;ppeal generally will consider the result of cases under federal law. M3ited 6 times for this legal issueN Cenesis Gnvironmental Services v. San <oaquin ?alley Unified ;ir )ollution 3ontrol 8ist., 2 3al.4ptr.-d ,./ 3al.;pp.,.8ist.,066State courts must apply federal substantive law in cases brought pursuant to E *5+-. /0 U.S.3.;. E *5+- . M3ited 6 times for this legal issueN Covernor Cray 8avis 3om. v. ;merican #axpayers ;lliance, *0, 3al.4ptr.0d ,-/ 3al.;pp.*.8ist.,0660 #he 3alifornia 3ourt of ;ppeal is not bound by a federal circuit court opinion, and in the absence of a controlling United States Supreme 3ourt decision on a federal question, the 3ourt of ;ppeal is free to make an independent determination of law. M3ited 6 times for this legal issueN Covernor Cray 8avis 3om. v. ;merican #axpayers ;lliance, *0, 3al.4ptr.0d ,-/ 3al.;pp.*.8ist.,0660 #he 3alifornia 3ourt of ;ppeal is bound to accept the decisions of the United States Supreme 3ourt, on questions of federal law. M3ited 6 times for this legal issueN %rown v. 3ity of 1os ;ngeles, *0, 3al.4ptr.0d /./

3al.;pp.0.8ist.,0660 &hat procedures are constitutionally required under (ourteenth ;mendment if state seeks to deprive person of a protected interest is determined by federal law, not state law. U.S.3.;. 3onst.;mend. */ . M3ited 6 times for this legal issueN )eople v. 4omero, *00 3al.4ptr.0d -55 3al.;pp./.8ist.,0660 ;lthough lower federal court decisions are entitled to great weight, state courts are not bound by those decisions. M3ited 6 times for this legal issueN Sram 3orp. v. Shimano, Inc., 0, (ed.;ppx. 202 3.;.5.3al.,0660 )ronouncements by the Hinth 3ircuit 3ourt of ;ppeals as to 3alifornia law are not binding on the 3alifornia courts and might be discredited at any time by the state courts of 3alifornia. M3ited 6 times for this legal issueN Qochlinski v. Handy, 0660 &1 *26+3al.;pp.-.8ist.,0660 Heutral state procedural rules of court administration not affecting the ultimate outcome of the controversy are not preempted by federal law, but state law that would produce a different outcome in state than in federal court must yield to federal law. M3ited 6 times for this legal issueN Kirchmann v. 1ake Glsinore Unified School 8ist., *66 3al.4ptr.0d 0+5 3al.;pp./.8ist.,0666 Dn matters of federal law, State Supreme 3ourt is not bound by lower federal court authority and must make an independent determination of federal law. M3ited 6 times for this legal issueN (inley v. Superior 3ourt, 52 3al.4ptr.0d *0+ 3al.;pp./.8ist.,0666 8ecisions of the federal courts interpreting 3alifornia law, although not binding on the 3ourt of ;ppeal, are persuasive. M3ited 6 times for this legal issueN Hatch v. Superior 3ourt, 5/ 3al.4ptr.0d /,3al.;pp./.8ist.,0666 3onstitutional ad udications of the United States Supreme 3ourt are binding on state courts, in contrast to those of federal district courts.

M3ited 6 times for this legal issueN SoliF v. &illiams, ++ 3al.4ptr.0d *+/ 3al.;pp.0.8ist.,*555 8ecision of federal circuit court relating to whether absolute udicial immunity existed in E *5+- action against state court udge was persuasive rather than controlling authority for 3alifornia 3ourt of ;ppeal in defamation action against a state court udge. /0 U.S.3.;. E *5+- . M3ited 6 times for this legal issueN )eople v. Soto, ., 3al.4ptr.0d 26, 3al.;pp.,.8ist.,*55+ 8ecisions of federal courts are not controlling on matters of state law. M3ited 6 times for this legal issueN

)eople v. ;lvarado, .0 3al.4ptr.0d 065 3al.;pp.Super.,*55. &hile decisions by lower federal courts on constitutional issues are not necessarily controlling, they are persuasive authority and entitled to great weight. M3ited 6 times for this legal issueN Union of Heedletrades, etc. Gmployees v. Superior 3ourt, 2, 3al.4ptr.0d +-+ 3al.;pp.0.8ist.,*55. 8ecisions of federal circuit court are not binding on 3ourt of ;ppeal. M3ited 6 times for this legal issueN In re 3asamont Investors, 1td., *52 %.4. ,*. %;).5.3al.,*552 8ecisions of federal courts on state law issues are not binding on 3alifornia state courts. M3ited 6 times for this legal issueN ?arr v. Dlimpia, ,- 3al.4ptr.0d *62 3al.;pp.2.8ist.,*552 8ecisions of lower federal courts are entitled to great weight but are not binding. M3ited 6 times for this legal issueN Ceneral :otors 3orp. v. 3ity of 1os ;ngeles, /0 3al.4ptr.0d /-6 3al.;pp.0.8ist.,*55, 8ecisions of the United States Supreme 3ourt are binding not only on all of the lower federal courts, but also on state courts when federal question is involved, such as constitutionality of ordinance or construction of (ederal 3onstitution or statutes.

M3ited 6 times for this legal issueN 3haveF v. Keat, /* 3al.4ptr.0d .0 3al.;pp./.8ist.,*55, State court cannot apply its own substantive law when ad udicating federal claims. M3ited 6 times for this legal issueN )eople v. Qimmerman, *5 3al.4ptr.0d /+2 3al.;pp.Super.,*55&ith respect to federal constitutional questions, decision of the United States Supreme 3ourt are binding on state courts. M3ited 6 times for this legal issueN )eople v. Qimmerman, *5 3al.4ptr.0d /+2 3al.;pp.Super.,*55&hile decisions of lower federal courts on federal constitutional questions are persuasive and entitled to great weight, they are not binding on state courts. M3ited 6 times for this legal issueN 4esolution #rust 3orp. v. &inslow, *0 3al.4ptr.0d ,*6 3al.;pp.2.8ist.,*550 If policy of federal statute so requires, state law must give way. M3ited 6 times for this legal issueN Koch v. Hankins, 0.- 3al.4ptr. //0 3al.;pp.*.8ist.,*556 &hen prior udgment is rendered by federal court, it must be given same res udicata effect by state courts that it

would have been given in federal court. M3ited 6 times for this legal issueN )eople v. 8aan, 06. 3al.4ptr. 00+ 3al.;pp./.8ist.,*5+/ 3alifornia courts are not required to follow decisions of the federal district courts or courts of appeal, but are bound by United States Supreme 3ourt decisions on questions of federal constitutional law. U.S.3.;. 3onst.;mend. / 7 R &estLs ;nn.3al.3onst. ;rt. *, EE *- , 0+!d" . M3ited 6 times for this legal issueN In re <avier ;., 062 3al.4ptr. -+2 3al.;pp.0.8ist.,*5+/ 8ecisions of federal district court are not binding in 3alifornia courts. M3ited 6 times for this legal issueN 8ivision of 1abor Standards Gnforcement v. #exaco, Inc., *55 3al.4ptr. ,2* 3al.;pp.Super.,*5+State courts are final arbiters of meaning of state law, and federal cases, although entitled to considerable respect, are not binding on the state court. M3ited 6 times for this legal issueN 3hicago and H.&. #ransp. 3o. v. Kalo %rick 9 #ile 3o., *6* S.3t. **0/ U.S.Iowa,*5+* (ederal court ruling that removal was not proper because of lack of diversity of citiFenship had no relevance to state court inquiry into whether the preemption doctrine barred the state court from exercising urisdiction.

M3ited 6 times for this legal issueN )eople v. Creen, *,2 3al.4ptr. .*3al.;pp.Super.,*5.5 8ecision of federal district court, though entitled to respect, is not binding upon appellate department of the superior court. M3ited 6 times for this legal issueN San 8iego Unified )ort 8ist. v. Superior 3ourt, *-2 3al.4ptr. ,,. 3al.;pp./.8ist.,*5.. 8ecision of lower federal court on federal question, though not binding on state court, is persuasive and entitled to great weight. M3ited 6 times for this legal issueN Ceneral Glectric 3o. v. State of 3al. ex rel. 8ept. )ub. &ks., *6+ 3al.4ptr. ,/3al.;pp.*.8ist.,*5.8ecisions of lower federal courts are entitled to great respect but are not binding on state courts. M3ited 6 times for this legal issueN Sheridan v. Sheridan, *65 3al.4ptr. /22 3al.;pp.-.8ist.,*5.0 3alifornia 3ourt of ;ppeal is not bound by decisions of lower federal courts even on federal questions. M3ited 6 times for this legal issueN )eople ex rel. 8ept. of )ublic &orks v. 4odoni, ,0 3al.4ptr. +,. 3al.;pp.,.8ist.,*522 Interpretation of 3alifornia law by federal court need not be followed by state court unless a conflict between federal and state law is at issue7 Ryet such dictum is persuasive.

M3ited 6 times for this legal issueN %ank of ;merica Hat. #rust 9 Savings ;ssLn v. :c1aughlin 1and 9 1ivestock 3o., *6, ).0d 26. 3al.;pp.*.8ist.,*5/6 #he decisions of federal courts determining the urisdiction of their own courts is controlling on the state courts, as well as the decisions interpreting and declaring the purport and effect of the udgments of the federal courts. M3ited 6 times for this legal issueN :elville 3lark )iano 3o. v. <ordan, */, ). ,*2 3al.,*5*/ ; decision of the federal Supreme 3ourt on a federal question is controlling on the state courts.

Ca!p8e// +. Super&or Court, 44 Ca/.App.4t) 1308, 1318G1319, 52 Ca/.Rptr.2d 385, 9# Ca/. 3a&/4 7p. Ser+. 2957, 9# 3a&/4 .ourna/ 3.A.R. 4858 $Ca/.App. 2 3&"t.,Apr 2#, 199#' 041 Court" 10# 97$#'

*62 3ourts *62II Gstablishment, DrganiFation, and )rocedure *62II!C" 4ules of 8ecision *62k++ )revious 8ecisions as 3ontrolling or as )recedents *62k5. 8ecisions of United States 3ourts as ;uthority in State 3ourts *62k5.!2" k. 3onstruction of State 3onstitutions and Statutes. :ost 3ited 3ases (ederal opinions do not constitute binding interpretations of state law. (armers attacks Ti$$s on several grounds'that it overlooked controlling and contradictory 3alifornia precedent7 (H. that it misinterpreted the out'of'state authorities7 and that it was distinguishable because of Ithe particularly egregious facts presentedJ as to how and why the insurer refused to defend. #hese arguments need not detain us. ;s we have already noted, federal opinions, including Ti$$s" do not constitute binding interpretations of state law. #he main point is that because no 3alifornia decision has squarely addressed the question of whether the (1319 refusal to defend can support a claim for breach of the implied covenant, we are writing upon a clean slate in resolving the issue. ;s we shall now explain, sound policy considerations as well as precedent in other areas of insurance law support the conclusion that the cause of action does lie. (H.. Dn this point, (armers is referring to 1omunale and its progeny.

,f state court ar presu ed to !e capa!le as federal courts of dis issing wholly !ogus cases, a !ad faith o!#ection could conceiva!ly !e raised as a defense in a state court proceeding. 3r a otion to stri"e. 5eorge >ashington Aaw Feview =9 5eo >ash A. Fev. $$' 5eorge D. Brown >hen federalis and separation of powers collide rethin"ing younger a!stention.
Cal. Prac. Guide Civ. Pro. Before Trial Ch. ""-B 3alifornia )ractice Cuide@ 3ivil )rocedure %efore #rial Hon. &illiam (. 4ylaarsdam, Hon. 1ee Smalley Gdmon, 3ontributing Gditors@ ;tty. 4ichard <. %urdge, <r., ;tty. <effrey I. Ghrlich, ;tty. 4ichard %. CoetF, and ;tty. 8avid <. )asternak

3hapter **. 8ismissals B. #nvoluntar$ %is&issals e. M**@/5N on"tatutor4 ground"C In addition to the various statutory grounds above, the court has inherent authorit+ to dismiss an action !recogniFed in 33) E ,+-.*,6". Gxercise of this power has generally been confined to IshamJ actions, or cases involving pre udicial delay in prosecution for less than the statutory periods !see V 77)=A8!A". !0" M**@0+6.*6N App/&5at&onC #he discretionary power to dismiss has been confined to two types of cases@ !a" IshamJ actions in which it is shown that the claim is fictitious or otherwise invalid7 and !b" pre udicial delay in prosecution for less than the statutory periods for dismissal. M L+ons v! -ickhorst" supra, /0 3-d at 5*,, 0-* 34 at .-5N W M**@0+6.*6aN #he court had power under 33) E ,+-.*,6 to dismiss a trespass and invasion of privacy action naming only I8oeJ defendants !involving events over a *6Xyear period" where plaintiff could not show any real likelihood that he would be able to identify even one actual defendant. M Pearlson v! #oes 7 To 6F6 !*555" .2 3;/th *66,, *665, 56 340d .+., .+5N

L4on" +. 9&5>)or"t, 42 Ca/.3d 911, 915, 727 ;.2d 1019, 231 Ca/.Rptr. 738 $Ca/. 3e5 01, 198#' $$In the absence of express statutory authority, a trial court may, under certain circumstances, invoke its limited, inherent discretionary power to dismiss claims with pre udice. !See 2 &itkin, 3al.)rocedure !-d ed. *5+," )roceedings &ithout #rial, E 0*0, pp. ,*.',*+." However, this power has in the past been confined to two types of situations@ $$!*" the plaintiff has failed to prosecute diligently ! .omero v! Sn+der !*5*/" *2. 3al. 0*2, *-+ ). *660"7 or $$!0" the complaint has been shown to be Ifictitious or a shamJ such that the plaintiff has no valid cause of action ! 1unha v! &nglo 1alifornia 0at! Bank !*5-5" -/ 3al.;pp.0d -+-, -++, 5- ).0d ,.0".(H/ (H/. Several additional grounds for dismissal have been recogniFed over the years. #hese include@ !*" lack of urisdiction7 !0" inconvenient forum !see E /*6.-6 Mgenerally without pre udiceN7 !-" non usticiable controversy, and !/" plaintiffLs failure to give security for costs !See 2 &itkin, op! cit! supra" E 0*0, pp. ,*.',*+". Hone of these miscellaneous grounds is applicable here.

Cun)a +. Ang/o Ca/&6orn&a at. 2an> o6 San -ran5&"5o, 34 Ca/.App.2d 383, 93 ;.2d 572 $Ca/.App. 1 3&"t.,Aug 30, 1939' ;ppeal from Superior 3ourt, 3ity and 3ounty of San (rancisco7 Glmer G. 4obinson, <udge. ;ction by 8ean 3unha, as executor of the last will and testament of Harry I. Stafford, deceased, against the ;nglo 3alifornia Hational %ank of San (rancisco, as trustee, and others to recover accrued stock dividends allegedly assigned to plaintiffLs intestate. (rom a udgment on orders sustaining defendantsL demurrer to plaintiffLs original complaint, first amended complaint, and second amended complaint, and granting defndantsL motion to dismiss, the plaintiff appeals. ;ffirmed. Hearing denied7 SHGHK and 3;4#G4, <<., dissenting. 011 :ru"t" 390 371$1'

-56 #rusts -56?II Gstablishment and Gnforcement of #rust

-56?II!3" ;ctions -56k-.* )leading -56k-.*!*" k. %ill, 3omplaint, or )etition in Ceneral. :ost 3ited 3ases In action against remainderman under a trust established for life of settlor to recover a sum of money allegedly received as stock dividends, a complaint alleging that settlor of trust assigned to plaintiffLs intestate accrued dividends of stock held in trust, that stock as result of merger was exchanged with its accrued dividends for other shares of stock, and that on death of settlor stock passed to remaindermen, was demurrable for failure to allege whether merger was consummated prior to death of settlor, whether accumulated dividends were ever paid in money, and whether trust was in existence at time of merger. 031 ;retr&a/ ;ro5edure 307A 531

-6.; )retrial )rocedure -6.;III 8ismissal -6.;III!%" Involuntary 8ismissal -6.;III!%"* In Ceneral -6.;k,-* k. Hature and Scope of 4emedy in Ceneral. :ost 3ited 3ases !(ormerly *0+k/2 8ismissal and Honsuit" #he same rules apply to a dismissal of an action at law or in equity unless modified by statute. 041 ;retr&a/ ;ro5edure 307A #75

-6.; )retrial )rocedure -6.;III 8ismissal -6.;III!%" Involuntary 8ismissal -6.;III!%"2 )roceedings and Gffect -6.;k2., k. :otion and )roceedings #hereon. :ost 3ited 3ases !(ormerly *0+k2. 8ismissal and Honsuit" ; motion to dismiss an action is proper practice but in each case question arises whether specific facts presented constitute grounds for an order of dismissal. &estLs ;nn.3ode 3iv.)roc. EE ,+*',+*b. 051 ;retr&a/ ;ro5edure 307A #85

-6.; )retrial )rocedure -6.;III 8ismissal -6.;III!%" Involuntary 8ismissal -6.;III!%"2 )roceedings and Gffect -6.;k2+, k. ;ffidavits or Dther Showing of :erit. :ost 3ited 3ases !(ormerly *0+k.* 8ismissal and Honsuit" Dn motion to dismiss an action to recover accrued stock dividend on ground that action was a sham, and based on false allegations and that interests of ustice would be subserved by dismissal, the defendants had right to support their motion by affidavits. &estLs ;nn.3ode 3iv.)roc. E 0665. 0#1 ;retr&a/ ;ro5edure 307A 552

-6.; )retrial )rocedure -6.;III 8ismissal -6.;III!%" Involuntary 8ismissal -6.;III!%"0 Crounds in Ceneral -6.;k,,0 k. ?exatious or (ictitious Suit7 :ootness. :ost 3ited 3ases !(ormerly *0+k,-!0" 8ismissal and Honsuit" In action to recover accrued dividends on stock held in trust, which dividends were allegedly assigned by settlor of trust to plaintiffLs intestate, trial court properly granted motion to dismiss action where demurrers to original and to two amended complaints had been sustained, and where affidavit in support of motion to dismiss showed that accrued dividends were neither declared nor paid to settlor during his lifetime, that settlor had only a life estate

under trust, and that settlor had no title to any other dividends which he could have assigned. 071 A5t&on 13 #8

*- ;ction *-I? 3ommencement, )rosecution, and #ermination *-k2. Stay of )roceedings *-k2+ k. In Ceneral. :ost 3ited 3ases ;retr&a/ ;ro5edure 307A 552

-6.; )retrial )rocedure -6.;III 8ismissal -6.;III!%" Involuntary 8ismissal -6.;III!%"0 Crounds in Ceneral -6.;k,,0 k. ?exatious or (ictitious Suit7 :ootness. :ost 3ited 3ases !(ormerly *0+k,-!0" 8ismissal and Honsuit" $$3ourt has inherent power, in absence of any statute to dismiss or perpetually stay groundless, vexatious, annoying, and harassing litigations. 081 Appea/ and Error 30 1024.1

-6 ;ppeal and Grror -6P?I 4eview -6P?I!I" Buestions of (act, ?erdicts, and (indings -6P?I!I"2 Buestions of (act on :otions or Dther Interlocutory or Special )roceedings -6k*60/.* k. In Ceneral. :ost 3ited 3ases !(ormerly -6k*60/!*"" Dn motion to dismiss an action as being groundless, vexatious, and harassing, the weight of evidence is to be determined by the trial court. 091 ;retr&a/ ;ro5edure 307A #85

-6.; )retrial )rocedure -6.;III 8ismissal -6.;III!%" Involuntary 8ismissal -6.;III!%"2 )roceedings and Gffect -6.;k2+, k. ;ffidavits or Dther Showing of :erit. :ost 3ited 3ases !(ormerly *0+k.* 8ismissal and Honsuit" Dn motion to dismiss an action to recover accrued dividends on stock held in trust, which dividends were allegedly assigned by settlor of a trust to plaintiffLs intestate, plaintiff, if it were possible for him to do so, was bound to present documents controverting affidavits of defendants showing that settlor had only life estate in trust, and that accrued dividends on stock held in trust were neither declared nor paid to settlor during his lifetime. 0101 ;retr&a/ ;ro5edure 307A #84

-6.; )retrial )rocedure -6.;III 8ismissal -6.;III!%" Involuntary 8ismissal -6.;III!%"2 )roceedings and Gffect -6.;k2+0 Gvidence -6.;k2+/ k. Sufficiency and Gffect. :ost 3ited 3ases !(ormerly *0+k.- 8ismissal and Honsuit" Dn motion to dismiss an action to recover accrued dividends on stock held in trust, which dividends were allegedly assigned by settlor to plaintiffLs intestate, fact that complaint was drawn by attorney who had actually participated in

framing agreements was not conclusive on whether contract of assignment had been fully and fairly pleaded, where defendants by uncontradicted affidavits proved that settlor had only life estate in trust, and that during settlorLs life no accrued dividends were declared. #he plaintiffLs decedent, on :ay */, *5-., commenced an action against the defendants praying a udgment for money. #he defendants appeared and filed demurrers which were both general and special. #he demurrers were sustained. #he plaintiff filed a first amended complaint which made no substantial change in the averments of the original complaint. #he defendants interposed other demurrers that were both general and special and they were sustained. #he plaintiff filed a second amended complaint which contains no substantial changes and again the defendants demurred. #hose demurrers were also both general and special demurrers. $$;t about the same time the defendants also filed a notice of motion to dismiss the action. #he trial court entered orders sustaining the demurrers without leave to amend and granting the motion to dismiss. (rom the udgment entered on those orders the plaintiff has appealed. &e will first take up the order sustaining the demurrers. (385 #he second amended complaint may be summariFed as follows@ $$Harry I. Stafford died on :arch *6, *5-+, his will was admitted to probate and 8ean 3unha was appointed executor and the latter has been substituted as plaintiff in this action. #he ;nglo 3alifornia Hational %ank is a corporation. )rior to Dctober ,, *5-,, ;rthur Qellerbach, under written trust agreements, placed in trust 0,--* shares of the 3lass ; preferred stock of the 3rown Qellerbach 3orporation, a corporation, and **,22, shares of its common stock, reserving to himself the income from said trust estate and designating as the remaindermen of the corpus of said estate his nephews, the defendants, <.8. Qellerbach and Harold 1. Qellerbach. Dn Dctober ,, *5-,, a written agreement was made and entered into between said ;rthur Qellerbach, as first party, )hilip S. Ghrlich, as second party, the said defendant Harold 1. Qellerbach, as third party, the said defendant <.8. Qellerbach, as fourth party, the defendant I. Qellerbach, as fifth party, 8orothy <ohnson Qellerbach, as sixth party, and 8orothy 4yan Qellerbach, as seventh party confirming in part and ((574 modifying in part the aforesaid trust7 and by said agreement the parties contracted and agreed there was then accrued but unpaid, dividends in the sum of A*..,6 per share on the said 0,--* shares of the 3lass ; preferred stock of the said 3rown Qellerbach 3orporation, and that said accrued dividends belonged to and were owned by said ;rthur Qellerbach, and that all of said arrearage of, or accrued dividends when paid, no matter when or how such payment should be evidenced or made, would be paid to said ;rthur Qellerbach. Under the agreement of Dctober /, )hilip S. Ghrlich was designated as the trustee and later resigned and the ;nglo 3alifornia Hational %ank of San (rancisco was substituted in his stead. $$Dn (ebruary *6, *5-., ;rthur Qellerbach assigned all of his interest in said accrued dividends to Harry I. Stafford. ;rthur Qellerbach died on :arch -, *5-.. Dn (ebruary *-, *5-., Harry I. Stafford delivered to the ;nglo 3alifornia %ank of San (rancisco and to Harold 1. Qellerbach and <.8. Qellerbach, written notices of the assignment held by him. ;fter proceedings duly and regularly had, commencing with (ebruary 5, *5-., and finally completed prior to the commencement of this action, the said 3rown Qellerbach 3orporation merged with 3rown &illamette )aper 3ompany and by virtue of (38# the merger agreement between said corporations, the original 3rown Qellerbach 3orporation 3lass ; preferred stock was exchanged for stock in 3rown Qellerbach 3orporation, the merged corporation, upon the following basis@ Dne and *T/6 th share of the A, cumulative convertible preferred stock of 3rown Qellerbach 3orporation, the merged corporation, and one share of common stock of the merged corporation, for one share of the said 3rown Qellerbach 3orporation, 3lass ; preferred stock with its accrued dividends of A*..,6 per share. #he 0,--* shares of 3lass ; preferred stock of 3rown Qellerbach 3orporation, with accrued dividends in the amount of A*..,6 per share held under the trust referred to in said agreement of Dctober ,, *5-,, has been exchanged in accordance with the said plan of merger as aforesaid, and plaintiff is informed and believes, and so alleges, that all the stock of 3rown Qellerbach 3orporation, as merged, issued in exchange for the aforesaid 3lass ; preferred stock, with accrued dividends of original 3rown Qellerbach 3orporation, has been delivered to, and is now held by, and is in the possession of, the defendants herein, and by reason thereof, the accrued dividends of A*..,6 per share heretofore sold and assigned to said Harry I. Stafford by said ;rthur Qellerbach as hereinabove set forth, have been paid to, and received by said defendants. )rior to the commencement of this action Harry I. Stafford demanded of said defendants that they pay to him the amount of said accrued dividends. ;t the time of the assignment to Harry I. Stafford the accrued dividends amounted to A/6,.50.,6. #hen follows a prayer for said sum. #he defendants demurred to the foregoing second amended complaint. ;mong others they stated the following grounds@

$$III. #hat plaintiffLs second amended complaint on file herein does not state facts sufficient to constitute a cause of action against these defendants, or any of them. $$IIII. #hat plaintiffLs second amended complaint is uncertain in each of the following particulars@ $$I!a" It does not appear therein, nor can it be ascertained therefrom, whether the merger between 3rown &illamette )aper 3ompany and 3rown Qellerbach 3orporation was consummated prior to :arch -, *5-., the date of ;rthur QellerbachLs death7 (387 I!b" It does not appear therein, nor can it be ascertained therefrom, whether the accumulated dividends upon the 0,--* shares of 3lass ; preferred stock of 3rown Qellerbach 3orporation were ever declared and paid by the 3rown Qellerbach 3orporation7 I!c" It does not appear therein, nor can it be ascertained therefrom, whether the trust described in paragraph - of plaintiffLs second amended complaint was in existence at the time of the consummation of the merger between 3rown &illamette )aper 3ompany and 3rown Qellerbach 3orporation.J M*N It is alleged that ;rthur Qellerbach placed his stock in a trust reserving to himself the income and designating his nephews as remaindermen. It is alleged that ;rthur Qellerbach died :arch -, *5-.. Hothing to the contrary appearing, it may be assumed the remaindermen at the time of his death took the trust estate together with the income thereof. It is alleged that a merger between 3rown Qellerbach )aper 3ompany and 3rown Qellerbach 3orporation was effected. If so, it became material to know whether such merger was consummated ((575 prior or subsequent to the death of ;rthur Qellerbach. ;s plaintiffLs action was an action for money, it also became material to know whether any dividends had been declared and paid. ;ssuming that some moneys were paid, under the allegations set forth in the second amended complaint the plaintiff could claim an interest in those moneys paid to or for the account of ;rthur Qellerbach but not to moneys paid to or for the account of the remaindermen. (or these reasons each of the specifications !a", !b" and !c" was well taken. Under the allegations contained in the second amended complaint it appears the parties contemplated that at least some dividends might be paid in some manner otherwise than in money. Under other allegations it appears the accrued dividends were not paid in money but by the merger agreement the stockholders were given shares in the 3rown Qellerbach 3orporation in lieu of the payment of money. In other words, on the face of the pleading it appears the original contract between the stockholders of the 3rown Qellerbach 3orporation and the holders of the preferred stock thereof was modified by all parties in interest and to each stockholder shares of stock were issued for the accrued dividends. #he parties anticipated such corporate action and (388 they inserted in the trust agreement that the dividends should be paid to the trustor I$$$ no matter when or how such payment should be evidenced or made $$$J. If at the time of the merger the trustor had been alive, his right would have been to demand stock, not money. His assignee has no greater right. ;ssuming that the trust has not been terminated, the second amended complaint was insufficient because the trustorLs assignee has not pleaded facts showing he is entitled to a udgment for money, and the trial court did not err in sustaining the demurrers. &e pass now to a consideration of the order dismissing the action. #he notice of motion to dismiss set forth@ ISaid motion will be made upon the following grounds@ I!*" ;s originally begun, the action was sham and based on false allegations, and the first amended complaint and the second amended complaint on file herein are, and each of them is, likewise sham and based upon false allegations7 I!0" #he filing of said second amended complaint and the maintenance of the action in the circumstances herein appearing were and are an abuse of the process of the court by the plaintiff7 I!-" #he second amended complaint is an abuse of the leave granted to the plaintiff to amend given in the order whereby these defendantsL demurrers to plaintiffLs first amended complaint were sustained7

I!/" #he interests of ustice will be subserved by the dismissal of said action. ISaid motion will be based upon this notice of motion, the affidavit of <.8. Qellerbach, served and filed herewith, and all the records, papers and pleadings on file in the above entitled cause, including the original and first amended complaint filed herein and the demurrers and answers thereto and the motions to strike portions thereof.J M0NM-NM/N It is obvious that the motion to dismiss was not made pursuant to the provisions of sections ,+*',+*b, 3ode of 3ivil )rocedure. %ut it is also true that, as to the power to dismiss, those sections are not exclusive. )eople v. <efferds, *02 3al. 052, ,+ ). .6/. #he power to dismiss was formerly exercised by courts of chancery and later it was exercised in the law courts. 2 ;m. 9 Gng.Gncy. of )l. 9 )r. 5*67 5 3al.<ur. ,6,. %y those courts it was exercised when it was shown that an action was fictitious or sham. /5 3.<. .6*, and *+ 3.<. **+6. #he same rules apply to (389 a dismissal at law or in equity under code procedure unless modified by statute . 2 ;m. 9 Gng.Gncy.)l. 9 )r. 5*6. Ho statute has modified the rule in this state. #hat a motion to dismiss is proper practice is settled law but in each case the question arises whether the specific facts presented to the court constitute grounds for an order of dismissal. #herefore the defendants had the right to make, and the trial court had urisdiction to hear and determine the motion to dismiss. M,N ;s the court had the urisdiction to entertain the motion the defendants had the right to support their motion with affidavits. 3ode 3iv.)roc. E 06657 3alifornia :ortg. 9 Sav. %ank v. Craves, *05 3al. 2/5, 2,*, 20 ). 0,57 )acific )aving 3o. v. ?iFelich, */* 3al. /, *6, ./ ). -,07 Cuardianship of ?an 1oan, */0 3al. /0-, /02, .2 ). -.7 (uller v. 1indenbaum, 05 3al.;pp.0d 00., 0-6, +/ ).0d *,,. In the original complaint and in each amended complaint the plaintiff, by virtue ((57# of a written assignment, asserted title to A/6,.50.,6, the amount of accrued dividends claimed to have been paid on certain shares of stock. In no one of those pleadings was there an allegation to that effect but each pleading contained intimations that ;rthur Qellerbach held the title to and assigned to plaintiffLs decedent $$!*" dividends payable after the death of the assignor, and $$!0" that such dividends were paid. $$#he defendants contended that neither proposition was true and that they were not liable in any sum if the facts were fully alleged . In support of that contention they filed demurrers in which they made specific attacks. #heir demurrers were sustained to the first complaint, their demurrers were sustained to the amended complaint, and they interposed similar demurrers to the second amended complaint.

$$M2N #hey also moved to dismiss on the ground above stated and in support of their motion they offered in evidence all the records and files and also the affidavit of <.8. Qellerbach. #he plaintiff offered no evidence. #he trial court granted the motion. #he proof so offered by the defendants consisted of certain written agreements which showed that ;rthur Qellerbach had only a life estate under certain trust agreements. #he proof also showed that the accrued dividends were neither declared nor paid to or for the account of ;rthur Qellerbach during his lifetime . It further showed he had no title to any other dividends which he could have (390 assigned or that he ever attempted to assign. $$#herefore, in dismissing said action the trial court did not err. 2 ;m. 9 Gng.Gncy.)l. 9 )r. 5*67 0* 4.3.1. /,07 *+ 3.<. **+67 Stewart v. %utler, 0. :isc. .6+, ,5 H.O.S. ,.-7 Scarcia v. United States Cypsum 3o., *2/ :isc. +0,, * H.O.S.0d -,+7 Kirby v. )ease, -- &ash. ,**, ./ ). 22,7 8elahoyde v. 1ovelace, -5 H.:. //2, /5 ).0d 0,-, 0,.7 Heard v. :c3abe, *-6 ;rk. *+,, *52 S.&. 5*.7 4hea v. Hackney, **. (la. 20, *,. So. *567 )ueblo 8e #aos v. ;rchuleta, *6 3ir., 2/ (.0d +6., +*0. In Stewart v. %utler, supra, an interesting discussion is found regarding the power of courts over litigation which is vexatious, clearly without merit, and not brought in good faith. ,5 H.O.S. on page ,.2, the court quotes with approval@ IDn principle, I am of opinion that where you find a litigant like :r. Gdmunds, who will have recourse to such a series of vexatious and improper litigations as he has had recourse to, and, when a decision has been given against him, will persist in treating it as a mere nullity,'for he has considered the decision of the arbitrators as a nullity, he has considered my decision of <anuary, *+.2, a nullity, and he has considered the decision of ?ice 3hancellor %acon, in (ebruary, *+.., a nullity,'when such a litigant is found I think it a most wholesome doctrine that any court should have the power of stopping such a litigation.J
Having quoted the above with approval, the court continued@ M.NM+N I#he same inherent power of the court was invoked and applied in <acobs v. 4aven, -6 1aw #., H.S., -22 . In each of the cases above cited the actions were disposed of, as is sought to be done in the present case, on motion based upon affidavits. #he power of a court of equity to entertain an action to restrain vexatious, annoying, and

harassing suits at law is well recogniFed !0 Story, Gq.<ur. !*-th Gd." p. 0**", and such an action has been maintained in this state to restrain groundless and vexatious suits in other states. 3laflin v. Hamlin, 20 How.)rac. 0+/. It is not necessary, however, to resort to an affirmative action in equity to accomplish the purpose. =#he more usual course in modern times, especially in this state, has been to grant the same relief on motion as might be obtained on formal suit.> 1owber v. :ayor, etc., of 3ity of Hew Oork, , ;bb.)rac. -0,. #here seems to be no doubt of the inherent power of the court, in the absence of any statute on the sub ect, to dismiss or (391 perpetually stay groundless, vexatious, and harassing litigations.J In some of the cases which we have cited the conduct complained of consisted of acts done in different independent actions, in others some acts were done in the pending action and some acts were done in other actions, and in still other instances the conduct was done in the pending action. However, the rule is the same. Such circumstances are but the evidence and, of course, the weight of the evidence is to be determined by the trial court that is called upon to determine whether the party complained against has been guilty of maintaining groundless, vexatious, and harassing suits. In the instant case the plaintiff claims he pleaded the trust agreements by their legal effect . %ut he did not do so. He pleaded only a part of the legal effect. #he demurrers to the first complaint specified the defects. ((577 In his amended complaint the plaintiff did not cure the omitted portions but added a large amount of matter that was immaterial to the issue on trial. #he demurrers of the defendants to the amended complaint made the same attacks. ;gain the plaintiff omitted to cure the defects when he filed his second amended complaint. #he defendants repeated the same attacks. In pleading to the plaintiffLs original complaint the defendant ;nglo 3alifornia Hational %ank filed an answer. #hat answer, among other things, set forth the facts showing that the trust under which this plaintiff claims he derived his title terminated on :arch -, *5-., the date of the death of ;rthur Qellerbach, that the administration of said trust was completed on ;pril 0*, *5-., that the ;nglo 3alifornia Hational %ank, the trustee, paid down to the date of :arch -, *5-., all of the dividends received under said trust as therein provided, and that no part or portion of the said accrued dividends were paid to or for the account of ;rthur Qellerbach during his life time or until after the said trust had terminated. #hat answer was filed <une ., *5-., whereas the second amended complaint was not filed until ;pril 0+, *5-+. #he affidavit of <.8. Qellerbach was filed :ay *2, *5-+. $$It pleaded with meticulous care the facts showing that plaintiff had no cause of action. $$Hotwithstanding these facts the plaintiff continued to press his claim. $$Under these circumstances the trial court did not err in dismissing the action as I$$$ litigation which is (392 vexatious, clearly without merit, and not brought in good faithJ. At>&n"on +. E/> Corp., 109 Ca/.App.4t) 739, 748G749, 135 Ca/.Rptr.2d 433, 03 Ca/. 3a&/4 7p. Ser+. 50##, 2003 3a&/4 .ourna/ 3.A.R. #391 $Ca/.App. # 3&"t.,.un 11, 2003' M2N &e find that the grant of nonsuit in favor of respondent on the courtLs own motion was irregular. M(H**N YIn the absence of express statutory authority, a trial court may, under certain circumstances, invoke its limited, inherent discretionary power to dismiss claims with pre udice. (749 M3itations.NY !L+ons v! -ickhorst !*5+2" /0 3al.-d 5**, 5*,, 0-* 3al.4ptr. .-+, .0. ).0d *6*57 see also E ,+*, subd. !m" M#he provisions of 3iv.3ode, E ,+* shall not be deemed to be an exclusive enumeration of the courtLs power to dismiss an action or dismiss a complaint as to a defendantN." However, the power of the court to dismiss actions with pre udice Yhas in the past been confined to two types of situations@ !*" the plaintiff has failed to prosecute diligently !.omero v! Sn+der !*5*/" *2. 3al. 0*2 M*-+ ). *660N ... "7 or !0" the complaint has been shown to be Lfictitious or shamL such that the plaintiff has no valid cause of action !C n&a *) .n!lo Califo#nia 2at) 6an7 $1939' 34 Ca/.App.2d 383, 388 093 ;.2d 572 N ... ".Y !L+ons v! -ickhorst" supra" /0 3al.-d at p. 5*,, 0-* 3al.4ptr. .-+, .0. ).0d *6*5 Mfn. omittedN." (H**. &e note that the author of Senate %ill Ho. *,,2 asserted that amendment to section ,+*c was needed because YMcNase law does not presently forbid a motion for non'suit prior to the opening statement. ; motion for non'suit after an opening statement is logical because a plaintiff in an opening statement must state that the evidence will prove every element of the particular case at bar. If the plaintiff doesnLt promise the ury evidence of every element of the case, then itLs logical and sensible for the defendant to make the motion, and for the court to grant it. ; motion for non'suit prior to the opening statement, however, is nonsensical and wasteful of court time for all concerned.Y !Sen. Buentin 1. Kopp, sponsor of Sen. %ill Ho. *,,2 !*55.'*55+ 4eg. Sess.", letter to Covernor, <uly *,, *55+." However, we can see no greater waste of court time than to require that a ury be impaneled and plaintiff make an opening statement, before the court could rule as a matter of law that ;tkinson was not a retail buyer within the meaning of Song'%everly.

Step)en S/e"&nger, <n5. +. 9a/t 3&"ne4 Co., 155 Ca/.App.4t) 73#, ## Ca/.Rptr.3d 2#8, 07 Ca/. 3a&/4 7p. Ser+. 11,#10 $Ca/.App. 2 3&"t.,Sep 25, 2007'

6raud on the court warrants ter inating sanction.


%5Aenna +. E//&ott Q @orne Co., 118 Ca/.App.2d 551, 258 ;.2d 528 $Ca/.App. 2 3&"t.,.un 18, 1953' ;ction to quiet title to realty. #he Superior 3ourt, 1os ;ngeles 3ounty, Gllsworth :eyer, <., granted defendantsL motion to dismiss, and plaintiff appealed from udgment of dismissal and from orders deying plaintiffLs motions for relief after udgment. #he 8istrict 3ourt of ;ppeals, &hite, ). <., held that where plaintiffLs claims to the property were ad udicated in actions in *5/. and *5/+, plaintiffsL subsequent quiet title suit, brought in *5,6, and based upon a claim of 06 years adverse possession, was barred by the prior udgments, and that the orders denying motions for relief after udgment were nonappealable. <udgment affirmed, attempted appeal from orders dismissed. 011 .udg!ent 228 743$2'

00+ <udgment 00+PI? 3onclusiveness of ;d udication 00+PI?!3" :atters 3oncluded 00+k./- #itle or 3laim to )roperty 00+k./-!0" k. 4eal )roperty. :ost 3ited 3ases &here plaintiffLs claims to certain lots were ad udicated in actions filed in *5/. and *5/+, plaintiffLs subsequent quiet title suit, brought in *5,6 and based upon a claim of 06 years adverse possession, was barred by the prior udgments. 021 .udg!ent 228 948$2'

00+ <udgment 00+PPII )leading <udgment as Gstoppel or 8efense 00+k5/+ )leading in Ceneral 00+k5/+!0" k. 4aising Buestion by 8emurrer or :otion. :ost 3ited 3ases #he defense of res udicata may be raised by motion to dismiss supported by affidavit. 031 .udg!ent 228 948$2'

00+ <udgment 00+PPII )leading <udgment as Gstoppel or 8efense 00+k5/+ )leading in Ceneral 00+k5/+!0" k. 4aising Buestion by 8emurrer or :otion. :ost 3ited 3ases <udgment dismissing action as barred by prior udgments was not erroneous as denying plaintiffLs right to trial of issue of res udicata, although such defense was raised by motion to dismiss complaint supported by affidavit, instead of by verified answer, as evidence at trial would be record of former action, which was introduced at hearing on motion to dismiss, and trial would take place before trial of another issue, as in case of hearing on motion. 041 ;retr&a/ ;ro5edure 307A 552

-6.; )retrial )rocedure -6.;III 8ismissal -6.;III!%" Involuntary 8ismissal -6.;III!%"0 Crounds in Ceneral -6.;k,,0 k. ?exatious or (ictitious Suit7 :ootness. :ost 3ited 3ases !(ormerly *0+k,-!0" 8ismissal and Honsuit"

; trial court has inherent power to dismiss an action which is clearly shown to be sham and without merit. actions in *5/. and *5/+, plaintiffsL subsequent quiet

@e/+e4 +. Se5ur&t4G-&r"t at. 2an> o6 Lo" Ange/e", 99 Ca/.App.2d 149, 221 ;.2d 257 $Ca/.App. 2 3&"t.,Aug 22, 1950'

)hort case
;. 3. Helvey, administrator of the estate of Ira %. :urphy, deceased, sued the Security'(irst Hational %ank of 1os ;ngeles for the amount of a deposit account paid by defendant to the state treasury under the ;bandoned )roperty ;ct. (rom an order of the Superior 3ourt of ?entura 3ounty, 3harles (. %lackstock, <., dismissing plaintiffLs amended complaint on defendantLs motion, plaintiff appealed. #he 8istrict 3ourt of ;ppeal, 8rapeau, <., held that the ;bandoned )roperty ;ct is not unconstitutional. Drder affirmed. &est Headnotes 011 Appea/ and Error 30 907$2'

-6 ;ppeal and Grror -6P?I 4eview -6P?I!C" )resumptions -6k562 (acts or Gvidence Hot Shown by 4ecord -6k56. In Ceneral -6k56.!0" k. (ailure to Set (orth Gvidence in Ceneral. :ost 3ited 3ases In absence of record of evidence before trial court, 8istrict 3ourt of ;ppeal must presume that evidence supports order appealed from. 021 ;retr&a/ ;ro5edure 307A #85

-6.; )retrial )rocedure -6.;III 8ismissal -6.;III!%" Involuntary 8ismissal -6.;III!%"2 )roceedings and Gffect -6.;k2+, k. ;ffidavits or Dther Showing of :erit. :ost 3ited 3ases !(ormerly *0+k.* 8ismissal and Honsuit" ;ffidavits may be used in support of motion to dismiss action. 031 ;retr&a/ ;ro5edure 307A 552

-6.; )retrial )rocedure -6.;III 8ismissal -6.;III!%" Involuntary 8ismissal -6.;III!%"0 Crounds in Ceneral -6.;k,,0 k. ?exatious or (ictitious Suit7 :ootness. :ost 3ited 3ases !(ormerly *0+k,-!0" 8ismissal and Honsuit" #he Superior 3ourt has inherent power to dismiss action shown to be fictitious and sham, without basing order on facts specified in statute. &estLs ;nn.3ode 3iv.)roc. E ,+* et seq. 041 2an>" and 2an>&ng 52 ,0 %anks and %anking ,0I? Hational %anks 234

,0k0-/ k. Statutory )rovision. :ost 3ited 3ases Statute" 3#1 278.30

-2* Statutes -2*?I 3onstruction and Dperation -2*?I!8" 4etroactivity -2*k0.+.0/ ?alidity of )articular 4etroactive Statutes -2*k0.+.-6 k. )roperty. :ost 3ited 3ases !(ormerly 50k*56" Con"t&tut&ona/ La* 92 4090

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!C" )articular Issues and ;pplications 50PP?II!C"- )roperty in Ceneral 50k/656 k. ;bandoned, 1ost, or Unclaimed )roperty7 Gscheat. :ost 3ited 3ases !(ormerly 50k-62!*", 50k-62" E"5)eat 152 2

*,0 Gscheat *,0k0 k. 3onstitutional and Statutory )rovisions. :ost 3ited 3ases #he ;bandoned )roperty ;ct, providing for payment to state treasury of amounts of abandoned bank deposit accounts, is not unconstitutional on grounds that it deprives depositors of interest, applies to money deposited before enactment of law, does not provide for notice to depositors, and applies to national banks. 3ode 3iv.)roc. EE *0./.*'*0./.*.. In <une of *5*5 Ira %. :urphy made two deposits in (armers and :erchants %ank of Santa )aula, in the sum of A.*6. 8efendant in this case is successor to that bank. Ho further deposits were made, except credits of interest earned. Ho withdrawals were made. Dctober 0, *5/2, defendant bank paid the amount due on the account to the #reasury of the State of 3alifornia. ;bandoned )roperty ;ct7 3ode 3iv.)roc. secs. *0./.* to *0./.*.. )laintiff is administrator of the estate of Ira %. :urphy, and assignee of decedentLs widow. ;s such, he first petitioned in the Superior 3ourt in Sacramento county in a proceeding against the State of 3alifornia. #he procedure is outlined in 3ode 3iv.)roc. sec. *0./.*6. Upon making the necessary proof the court is empowered to direct return of abandoned property to the owner thereof. 8efendant served plaintiffLs counsel with notice of motion to dismiss. )laintiff made no appearance on the hearing of the motion. Gvidence was heard by the court, the motion was granted, and the case dismissed. (rom this order plaintiff appeals. (151 M*NM0N Ho record of the evidence before the trial court has been supplied to this 3ourt. #herefore, it must be presumed that the evidence supports the order. ?ieth v. Klett, ++ 3al.;pp.0d 0-, *5+ ).0d -*/7 1ucich v. 1ucich, ., 3al.;pp.0d +56, *.0 ).0d .-. ;ffidavits may be used in support of a motion to dismiss. %est v. (itFgerald, +* 3al.;pp.0d 52,, *+, ).0d -... M-N )laintiff argues that the order is not based on facts specified in Section ,+* et seq. of the 3ode of 3ivil )rocedure, and is, therefore, void. ((258 #he Superior 3ourt has inherent power to dismiss actions which are made to appear fictitious and sham. 3unha ;nglo 3alifornia Hational %ank, -/ 3al.;pp.0d -+-, 5- ).0d ,.0.

L&n5o/n +. 3&da>, 1#2 Ca/.App.2d #25, 328 ;.2d 498 $Ca/.App. 2 3&"t.,Aug 0#, 1958' ;ction for false imprisonment and for wrongful taking of cash bail. #he Superior 3ourt of 1os ;ngeles 3ounty, Kenneth H. 3hantry and &illiam G. (ox, <<., entered orders dismissing complaint, and plaintiff appealed. #he 8istrict 3ourt of ;ppeal held that where affidavits and the record of the prior udicial proceedings disclosed that imprisonment of plaintiff was pursuant to commitment valid on its face issued by municipal court and that plaintiffLs cash bail was ordered forfeited by order of municipal court, complaint charging false imprisonment of plaintiff and theft of his cash bail was false, fictitious and sham and constituted an abuse of process of court and was properly dismissed for that reason. Drders affirmed. 011 -a/"e <!pr&"on!ent 1#8 12

*2+ (alse Imprisonment *2+I 3ivil 1iability *2+I!;" ;cts 3onstituting (alse Imprisonment and 1iability #herefor *2+k5 8efenses *2+k*0 k. <udicial )rocess. :ost 3ited 3ases Imprisonment of person pursuant to commitment valid on its face issued by municipal court is not false imprisonment. 021 :ro+er and Con+er"&on 389 25

-+5 #rover and 3onversion -+5II ;ctions -+5II!;" 4ight of ;ction and 8efenses -+5k0, k. )ersons 1iable. :ost 3ited 3ases &here cash bail is ordered forfeited by order of municipal court, the person giving bail could not charge city attorney, his deputies, the police chief, a member of county board of supervisors and the municipal court clerk with theft of the bail7 if the order of forfeiture was wrongful or erroneous the person giving bail had available a ready remedy. 031 ;/ead&ng 302 354

-60 )leading -60P?I :otions -60k-,* Striking Dut )leading or 8efense -60k-,/ k. Insufficient ;llegations or 8enials. :ost 3ited 3ases !(ormerly -60k-,/!-0"" ;retr&a/ ;ro5edure 307A #51

-6.; )retrial )rocedure -6.;III 8ismissal -6.;III!%" Involuntary 8ismissal -6.;III!%", )articular ;ctions or Sub ect :atter, 8efects in )leading -6.;k2,* k. #orts in Ceneral. :ost 3ited 3ases &here affidavits and the record of the prior udicial proceedings disclosed that imprisonment of plaintiff was pursuant to commitment valid on its face issued by municipal court and that plaintiffLs cash bail was ordered forfeited by order of municipal court, $$complaint charging false imprisonment of plaintiff and theft of his cash bail was false, fictitious and sham and constituted an abuse of process of court and was properly dismissed for that reason. 041 ;retr&a/ ;ro5edure 307A 552

-6.; )retrial )rocedure -6.;III 8ismissal -6.;III!%" Involuntary 8ismissal -6.;III!%"0 Crounds in Ceneral -6.;k,,0 k. ?exatious or (ictitious Suit7 :ootness. :ost 3ited 3ases !(ormerly *0+k,-!0" 8ismissal and Honsuit" ; court has inherent power to dismiss an action when it is shown to be sham, fictitious or without merit in order to prevent abuse of the udicial process. 051 ;retr&a/ ;ro5edure 307A #82.1

-6.; )retrial )rocedure -6.;III 8ismissal -6.;III!%" Involuntary 8ismissal -6.;III!%"2 )roceedings and Gffect -6.;k2+0 Gvidence -6.;k2+0.* k. In Ceneral. :ost 3ited 3ases !(ormerly -6.;k2+0, *0+k.* 8ismissal and Honsuit" (acts warranting dismissal of action when it is shown to be sham, fictitious or without merit in order to prevent abuse of the udicial process may be made to appear by affidavit as well as by the record of prior udicial proceedings. 0#1 ;/ead&ng 302 352

-60 )leading -60P?I :otions -60k-,* Striking Dut )leading or 8efense -60k-,0 k. In Ceneral. :ost 3ited 3ases &hile the 3ode of 3ivil )rocedure provision authoriFing a motion to strike the whole of a complaint without the necessity of filing an answer or demurrer does not purport to state the grounds upon which or the manner in which such motion may be made, the 1egislature must have contemplated that the motion might be made for reasons and upon grounds not appearing upon the face of the complaint7 such provision constitutes a legislative reaffirmance of the inherent right of a court to strike or dismiss a complaint when it is made to appear by extraneous evidence that it is sham and based upon false allegations. &estLs ;nn.3ode 3iv.)roc. EE /-,, /,-.

Cro*/e4 +. %odern -au5et %6g. Co., 44 Ca/.2d 321, 282 ;.2d 33 $Ca/. Apr 19, 1955'

Ne-atious second action is the grounds for the finding the case as sha . Felitigating so ething that already has !een finally deter ined.
ea/ +. 2an> o6 A!er&5a at. :ru"t Q Sa+&ng" A""Pn, 93 Ca/.App.2d #78, 209 ;.2d 825 $Ca/.App. 2 3&"t.,Sep 20, 1949'

Applying to de urrer

0 3<G4'%#4I;1 3h. *,, E 0 3al. <udges %enchbook 3iv. )roc. %efore #rial 3hapter *,, E *,.++

Ca/&6orn&a .udge" 2en5)8oo>C C&+&/ ;ro5eed&ng" G 2e6ore :r&a/ 3opyright ` *55.'066+ by #he (oundation for <udicial Gducation Io/u!e 2 C)apter 15. 3&"!&""a/" I<. 0J 15.881 .U3,EPS < @ERE : AU:@7R<:Y :7 3<S%<SS In addition to the statutory grounds that authoriFe dismissal, a udge has inherent authority to dismiss an action. 3ode of 3ivil )rocedure E,+*!m" states that the statutory grounds for dismissal specified in 33) E,+* are not an exclusive enumeration of a udgeLs power to dismiss an action or to dismiss a complaint as to a particular defendant. 3ode of 3ivil )rocedure E,+-.*,6 states that the statutes providing for dismissal for delay in prosecution !33) EE,+-.**6',+-./-6" do not limit or affect a udgeLs Yinherent authorityY to dismiss an action or to impose other sanctions under local court rules. In L+ons v -ickhorst !*5+2" /0 3-d 5**, 5*,, 0-* 34 .-+, the Supreme 3ourt declared that a udge has the limited, inherent discretionary power to dismiss an action with pre udice when the plaintiff has failed to prosecute it diligently or when the complaint is shown to be fictitious or sham so that the plaintiff has no valid cause of action7 and in Pearlson v #oes 7 to 6F6 !*555" .2 3;/th *66,, *6*6'*6*0, 56 340d .+., the appellate court held that the trial udge had properly exercised his inherent power under 33) E,+-.*,6 when dismissing the action on the ground that the complaint had named only 8oe defendants and the plaintiff had failed to show that he could determine the identity of even one viable defendant. Ca/&6orn&a ;ra5t&5e ,u&deC Su!!ar4 .udg!ent and Re/ated :er!&nat&on %ot&on" Current t)roug) 2010 Update 8onna %ader C)apter #. 3&"!&""a/ %ot&on" E 2@0-0. 8ismissal based on inherent authority of court''Suggested motion text 3e6endant 8name9 *&// !o+e t)&" Court 6or an order d&"!&""&ng t)&" a5t&on pur"uant to t)&" CourtP" &n)erent aut)or&t4 a" aut)or&?ed 84 Code C&+. ;ro5. J 583.150, 8a"ed upon t)e 6o//o*&ng ground" 8desc#ibe cond ct wa##antin! dismissal9.

3r in the alternative
J 435. ot&5e o6 !ot&on to "tr&>e *)o/e or part o6 5o!p/a&nt !a" ;s used in this section@ !*" #he term IcomplaintJ includes a cross'complaint. !0" #he term IpleadingJ means a demurrer, answer, complaint, or cross'complaint. !b"!*" ;ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision !e". !0" ; notice of motion to strike the answer or the complaint, or a portion thereof, shall specify a hearing date set in

accordance with Section *66,. !-" ; notice of motion to strike a demurrer, or a portion thereof, shall set the hearing thereon concurrently with the hearing on the demurrer. !c" If a party serves and files a notice of motion to strike without demurring to the complaint, the time to answer is extended and no default may be entered against that defendant, except as provided in Sections ,+, and ,+2. !d" #he filing of a notice of motion to strike an answer or complaint, or portion thereof, shall not extend the time within which to demur. !e" ; motion to strike, as specified in this section, may be made as part of a motion pursuant to subparagraph !;" of paragraph !*" of subdivision !i" of Section /-+.

J 438. .udg!ent on t)e p/ead&ng"N ground"N !ot&on"N 5ond&t&on" 6or !ot&on"N a!ended 5o!p/a&nt or an"*er !a" ;s used in this section@ !*" I3omplaintJ includes a cross'complaint. !0" I)laintiffJ includes a cross'complainant. !-" I8efendantJ includes a cross'defendant. !b"!*" ; party may move for udgment on the pleadings. !0" #he court may upon its own motion grant a motion for udgment on the pleadings. !c"!*" #he motion provided for in this section may only be made on one of the following grounds@ !;" If the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. !%" If the moving party is a defendant, that either of the following conditions exist@ !i" #he court has no urisdiction of the sub ect of the cause of action alleged in the complaint. !ii" #he complaint does not state facts sufficient to constitute a cause of action against that defendant. !0" #he motion provided for in this section may be made as to either of the following@ !;" #he entire complaint or cross'complaint or as to any of the causes of action stated therein. !%" #he entire answer or one or more of the affirmative defenses set forth in the answer. !-" If the court on its own motion grants the motion for udgment on the pleadings, it shall be on one of the following bases@ !;" If the motion is granted in favor of the plaintiff, it shall be based on the grounds that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.

!%" If the motion is granted in favor of the defendant, that either of the following conditions exist@ !i" #he court has no urisdiction of the sub ect of the cause of action alleged in the complaint. !ii" #he complaint does not state facts sufficient to constitute a cause of action against that defendant. !d" #he grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take udicial notice. &here the motion is based on a matter of which the court may take udicial notice pursuant to Section /,0 or /,- of the Gvidence 3ode, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit. !e" Ho motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section ,.,, or within -6 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits. !f" #he motion provided for in this section may be made only after one of the following conditions has occurred@ !*" If the moving party is a plaintiff, and the defendant has already filed his or her answer to the complaint and the time for the plaintiff to demur to the answer has expired. !0" If the moving party is a defendant, and the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired. !g" #he motion provided for in this section may be made even though either of the following conditions exist@ !*" #he moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer. !0" #he moving party did not demur to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section. !h"!*" #he motion provided for in this section may be granted with or without leave to file an amended complaint or answer, as the case may be. !0" &here a motion is granted pursuant to this section with leave to file an amended complaint or answer, as the case may be, then the court shall grant -6 days to the party against whom the motion was granted to file an amended complaint or answer, as the case may be. !-" If the motion is granted with respect to the entire complaint or answer without leave to file an amended complaint or answer, as the case may be, then udgment shall be entered forthwith in accordance with the motion granting udgment to the moving party. !/" If the motion is granted with leave to file an amended complaint or answer, as the case may be, then the following procedures shall be followed@ !;" If an amended complaint is filed after the time to file an amended complaint has expired, then the court may strike the complaint pursuant to Section /-2 and enter udgment in favor of that defendant against that plaintiff or a plaintiff. !%" If an amended answer is filed after the time to file an amended answer has expired, then the court may strike the answer pursuant to Section /-2 and proceed to enter udgment in favor of that plaintiff and against that defendant or a defendant. !3" Gxcept where subparagraphs !;" and !%" apply, if the motion is granted with respect to the entire complaint or

answer with leave to file an amended complaint or answer, as the case may be, but an amended complaint or answer is not filed, then after the time to file an amended complaint or answer, as the case may be, has expired, udgment shall be entered forthwith in favor of the moving party. !i"!*" &here a motion for udgment on the pleadings is granted with leave to amend, the court shall not enter a udgment in favor of a party until the following proceedings are had@ !;" If an amended pleading is filed and the moving party contends that pleading is filed after the time to file an amended pleading has expired or that the pleading is in violation of the courtLs prior ruling on the motion, then that party shall move to strike the pleading and enter udgment in its favor. !%" If no amended pleading is filed, then the party shall move for entry of udgment in its favor. !0" ;ll motions made pursuant to this subdivision shall be made pursuant to Section *6*6. !-" ;t the hearing on the motion provided for in this subdivision, the court shall determine whether to enter udgment in favor of a particular party.

3opyright !c" 066+ %.G. &itkin ;rticle Sixth #estamentary #rust &itkin 3alifornia )rocedure, (ifth Gdition %.G. &itkin and :embers of the &itkin 1egal Institute 3hapter ?. )leading P. #HG 8G:U44G4 G. Dther )rocedures 3ompared and 8istinguished. 0. :otion #o Strike. d. )rocedure. 1. 0J 10141 <n ,enera/. !*" *overning Law! 3.3.). /-, and 3.4.3., 4ule -.*-00 govern a partyLs motion to strike all or part of a pleading. !See 3.G.%., 0 3ivil )roc. %efore #rial /th, E0/.. et seq.7 3al. 3ivil )ractice, 0 )rocedure, E*6@*6, et seq." !0" Service and Filing of 0otice! ; party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of the pleading. !3.3.). /-,!b"!*" Mexcepting from time limitations certain motions made in connection with motion for udgment on pleadingsN." !See 3.4.3., 4ule -.*-00!b" MI; notice of motion to strike must be given within the time allowed to pleadJN." :oreover, the court may strike out irrelevant, false, or improper matter Iat any time in its discretion.J !3.3.). /-27 see 1PF &genc+ 1orp! v! . 4 S Towing Service !066," *-0 3.;./th *6*/, *60*, -/ 3.4.-d *62 Mcourt had inherent authority to treat defendantLs motion to dismiss as motion to strike and to RR( p.425SS consider it on merits even though motion was filed after defendant had filed responsive pleadingN." !-" 1ontent! I; notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.J !3.4.3., 4ule -.*-00!a"." !/" Hearing #ate! ; notice of motion to strike all or a part of an answer or complaint must specify a hearing date set in accordance with 3.3.). *66,. !3.3.). /-,!b"!0"7 on time for setting hearing, see 2 1al! Proc! !,th", Proceedings -ithout Trial" E*,." ; notice of motion to strike all or part of a demurrer must set the hearing concurrently with the hearing of the demurrer. !See infra, E*6*,." !," 2vidence at Hearing! Nele, v! Smith !0662" */0 3.;./th **,/, /+ 3.4.-d 2/0, held that the trial court did

not abuse its discretion in refusing to grant plaintiffLs request to present testimonial evidence at the hearing on the motion to strike. )laintiffLs right to proceed was amenable to resolution based solely on the pleading and the scant documentary evidence presented. !*/0 3.;./th **26." !2" 2ffect of *rant or #enial of 'otion! &here a motion to strike is granted, the court may order that an amendment or an amended pleading be filed Iupon terms it deems proper.J &here a motion to strike all or part of a complaint or cross'complaint is denied, the court must allow the party filing the motion to file an answer. !3.3.). /.0a!d"." !." #ismissal of &ction! ;n action may be dismissed where a motion to strike the whole complaint is granted without leave to amend or a motion to strike all or a part of the complaint is granted with leave to amend but no timely amendment is made, and either party moves for dismissal. !3.3.). ,+*!f"!-", !f"!/"7 -ilson v! Sharp !*5,/" /0 3.0d 2.,, 2.., 02+ ).0d *620." !See 3.3.). ,+2!a"!." Mdefendant is deemed to have failed to answer where answer is struck without leave to amend or leave to amend is granted but no timely amendment is madeN."

Authority for failure to oppose or respond constitutes an ad ission of the truth of the atters asserted. 3ne !ite at the apple.
;r&+&tera +. Ca/&6orn&a 2d. o6 %ed&5a/ Tua/&t4 A""ur., 92# -.2d 890 $9t) C&r.$Ca/.' -e8 25, 1991' )hysician sought in unctive relief under federal civil rights law challenging state authoritiesL license revocation proceedings. #he United States 8istrict 3ourt for the 3entral 8istrict of 3alifornia, Stephen ?. &ilson, <., denied in unction, dismissed pendent claims, and stayed action pending resolution of state claims in state court . )hysician appealed. #he 3ourt of ;ppeals, 4ymer, 3ircuit <udge, held that@ !*" 8istrict 3ourtLs stay order was appealable under statute dealing with interlocutory orders refusing in unctions7 !0" no ground existed for 8istrict 3ourt to effectively abstain from considering physicianLs federal claims7 and !-" denial of preliminary in unction had to be remanded for further consideration. 4eversed, vacated and remanded. &est Headnotes 011 -edera/ Court" 1702 573

*.6% (ederal 3ourts *.6%?III 3ourts of ;ppeals *.6%?III!3" 8ecisions 4eviewable *.6%?III!3"0 (inality of 8etermination *.6%k,.0 Interlocutory Drders ;ppealable *.6%k,.- k. In unction and Stay Drders. :ost 3ited 3ases 8istrict courtLs order staying physicianLs federal action pending resolution of state issues in state court was immediately appealable under statute providing for appeals of interlocutory orders refusing in unctions7 order was entered in con unction with order denying physicianLs motion for preliminary in unction, and practical effect of both orders was to permit state license revocation proceedings to proceed. 0+ U.S.3.;. E *050!a"!*". 021 -edera/ Court" 1702 55

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention *.6%k,, k. 1icense and 4egulation of Dccupations. :ost 3ited 3ases

Stay of physicianLs federal action challenging license revocation proceedings, pending resolution of state issues in state proceedings, effectively amounted to abstention and was not ustified under any established abstention doctrine, despite district courtLs belief that state litigation could effectively moot federal claims so that ad udicating constitutional issues could be avoided7 Pullman was not implicated since deciding constitutional issues would not affect sensitive area of social policy and since physicianLs claims did not involve challenge to state statute, and 1olorado .iver was not implicated since no state court action was pending. 031 -edera/ Court" 1702 813

*.6% (ederal 3ourts *.6%?III 3ourts of ;ppeals *.6%?III!K" Scope, Standards, and Gxtent *.6%?III!K"/ 8iscretion of 1ower 3ourt *.6%k+*- k. ;llowance of 4emedy and :atters of )rocedure in Ceneral. :ost 3ited 3ases Dn appeal, standard of review for abstention orders is abuse of discretion. 041 -edera/ Court" 1702 48

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention *.6%k/+ k. 3ivil 4ights in Ceneral. :ost 3ited 3ases :ere fact that state law claims could decide physicianLs action against state licensing authorities was not sufficient to ustify federal abstention vis'a'vis physicianLs federal civil rights claims. 051 A5t&on 13 #9$3'

*- ;ction *-I? 3ommencement, )rosecution, and #ermination *-k2. Stay of )roceedings *-k25 ;nother ;ction )ending *-k25!-" k. ;ctions in State and (ederal 3ourts. :ost 3ited 3ases &here requirements for abstention were not met, mandate of procedural rules to secure ust, speedy, and inexpensive determination of actions did not ustify district courtLs putting constitutional claims seeking in unctive relief on hold pending resolution of state causes of action that had not yet been filed and whose disposition would not plainly dispose of need to reach constitutional issues. (ed.4ules 3iv.)roc.4ule *, 0+ U.S.3.;. 0#1 -edera/ Court" 1702 7#7

*.6% (ederal 3ourts *.6%?III 3ourts of ;ppeals *.6%?III!K" Scope, Standards, and Gxtent *.6%?III!K"* In Ceneral *.6%k.2- Gxtent of 4eview 8ependent on Hature of 8ecision ;ppealed from *.6%k.2. k. )rovisional 4emedies7 In unctions7 4eceivers. :ost 3ited 3ases Scope of appellate review of decision to deny preliminary in unction could not be expanded due to district courtLs incorrect application of law by abstaining7 abstention decision had nothing to do with decision on merits of claim for in unctive relief. 071 -edera/ Court" 1702 941

*.6% (ederal 3ourts *.6%?III 3ourts of ;ppeals *.6%?III!1" 8etermination and 8isposition of 3ause

*.6%k5-. Hecessity for Hew #rial or (urther )roceedings %elow *.6%k5/* k. Insufficiency or 1ack of ?erdict or (indings. :ost 3ited 3ases 8istrict courtLs denial of physicianLs request for preliminary in unction in connection with state license revocation proceedings had to be remanded because district court apparently based its ruling that there was no irreparable in ury merely on fact that revocation hearing was three months away, and because court did not explain its findings that physician had not demonstrated likelihood of success on merits or that balance of hardships tipped in his favor. 081 <n=un5t&on 212 141

0*0 In unction 0*0I? )reliminary and Interlocutory In unctions 0*0I?!;" Crounds and )roceedings to )rocure 0*0I?!;"/ )roceedings 0*0k*/* k. #ime for ;pplication. :ost 3ited 3ases 8istrict court should not have relied solely on fact that physicianLs license revocation hearing was three months away to deny physicianLs motion for preliminary in unction7 denying in unction for such reason merely required physician to bring motion again later, thus delaying resolution of question that could ust as easily have been resolved immediately. 091 <n=un5t&on 212 141

0*0 In unction 0*0I? )reliminary and Interlocutory In unctions 0*0I?!;" Crounds and )roceedings to )rocure 0*0I?!;"/ )roceedings 0*0k*/* k. #ime for ;pplication. :ost 3ited 3ases 3ourts generally look at immediacy of threatened in ury in determining whether to grant preliminary in unction, and such immediacy requirement is reasonable when ongoing activity is to be en oined since need for immediate relief must be great enough to outweigh hardship to defendant. ;ppeal from the United States 8istrict 3ourt for the 3entral 8istrict of 3alifornia. %efore HD44IS, H;11 and 4O:G4, 3ircuit <udges. 4O:G4, 3ircuit <udge@ <ames )rivitera, :.8. brought this action for in unctive relief under the 3ivil 4ights ;ct, /0 U.S.3. E *5+-, challenging a 3alifornia %oard of :edical Buality ;ssurance !%:B;" license revocation proceeding against him. He now appeals an order of the district court that denied his motion for preliminary in unction, dismissed pendent claims for declaratory relief and to compel arbitration, and stayed the action pending resolution of the state claims in state court.(H* &e reverse and remand. (H*. ;lthough his statement of issues for review raises only the question whether the district court erred in staying the federal claims, )rivitera argues that he met the requirements for a preliminary in unction and that it should have been granted as well. He does not appeal dismissal of the pendent claims. I )rivitera is a medical doctor licensed to practice in 3alifornia. He was convicted in *5., of conspiracy to sell and prescribe laetrile to cancer patients. )rivitera appealed his conviction, but the 3alifornia Supreme 3ourt ultimately affirmed. In *5+0, the governor granted him a full pardon. In *5.., while )rivitera was appealing(892 his laetrile conviction but before he was pardoned, %:B; began an accusation proceeding to revoke his license. In *5+6, he entered into a settlement with %:B; that required him to be on probation for ten years. )rivitera claims that during this period of probation %:B; began an active campaign to harass him. In support of

this claim, he alleges the following facts@ (irst, his surveillance officer pressured him into buying a cow from his daughter for A0,66 and tried to pressure him into buying a second cow. #hen in *5+/, a patient of )riviteraLs had an insurance dispute about )riviteraLs treatment, and when the executive director of %:B; learned of the dispute, he wrote@ I#his looks good. :aybe itLs another chance to nail this )rivitera.J )riviteraLs surveillance officer falsely presented himself to the patient as an insurance investigator to get her to release her records. 1ater %:B; sent an agent, posing as a patient, to see )rivitera, and she signed a form stating she was not an agent. #hat same form called for arbitration of any dispute. %ased on the agentLs visit, %:B; instituted the present accusation proceeding to revoke )riviteraLs probation and to revoke his license. ;fter that, )rivitera told %:B; that if the proceeding were not stopped he would publiciFe the cow incidents. #he proceeding went forward, and he did hold a press conference. )rivitera was then charged with extortion, but the charge was dismissed at the preliminary hearing. #he udge noted that Ione gets the sense of discriminatory prosecution on the part of the 8.:.B. MsicN or whomever in the state hierarchy is pressing these charges.J )riviteraLs complaint seeks to en oin the revocation proceeding, which he alleges represents the culmination of a pattern of un ust harassment in violation of his federal constitutional rights. 3laims are also set forth to compel arbitration pursuant to the agreement signed by the %:B; agent, and for a declaration that )riviteraLs probationary status, and therefore the attempt to revoke his license, is illegal. )rivitera moved for preliminary in unction, and %:B; moved to dismiss the claim on the grounds of Younger abstention,(H0 among other things. #he district court dismissed the pendent claims without pre udice under (nited 'ine -orkers v! *i$$s" -+- U.S. .*,, +2 S.3t. **-6, *2 1.Gd.0d 0*+ !*522" 7 denied the motion to dismiss and for preliminary relief7 and stayed the federal action, removing it from the active calendar, pending resolution of the state issues in state court because they would either moot the constitutional issues or impact their disposition. (H0. Younger v! Harris" /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225 !*5.*". II M*N (irst, we must determine whether the district courtLs stay order is appealable at this time. #here is no dispute that the portion of the order denying )riviteraLs motion for preliminary in unction is appealable under 0+ U.S.3. E *050!a"!*", which provides for appeals of IMiNnterlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving in unctions.J )rivitera asserts that the stay aspect of the order is appealable as a final order under 'oses H! 1one 'emorial Hospital v! 'ercur+ 1onstruction 1orp!" /26 U.S. *, *6 n. **, *6- S.3t. 50., 5-/ n. **, ./ 1.Gd.0d .2,, ..2 n. ** !*5+-", because he is effectively Iout of court,J and alternatively that it is appealable as the grant or denial of an in unction under E *050!a"!*". %:B; argues that the stay order is not a final order under E *05* because the district court retained urisdiction of the federal 3ivil 4ights claims and )rivitera is therefore not effectively out of court on those claims. Under the unique circumstances of this case, we conclude that the portion of the order staying the action is appealable under 0+ U.S.3. E *050!a"!*". #o hold otherwise would mean that the denial of the preliminary in unction would be effectively unappealable because a reversal on that issue would have no effect. Dur mandate would return to a black hole. ; stay (893 should not insulate the denial of a request for preliminary in unction from appellate review in this way. (or this reason, the denial of the preliminary in unction and the stay must be considered together. 3ases interpreting E *050!a"!*" indicate that we are to take a pragmatic approach to determining appealability under this section. #he Supreme 3ourt has held that an order, even if it does not directly rule on an in unction, is appealable under E *050!a"!*" if it has the Ipractical effect of refusing an in unction,J and if it Imight have =serious, perhaps irreparable consequence,> and ... can be =effectually challenged> only by immediate appeal.J 1arson v! &merican Brands" Inc!" /,6 U.S. .5, +/, *6* S.3t. 55-, 552, 2. 1.Gd.0d ,5, 2/ !*5+*" 7 see also *ulfstream &erospace 1orp! v! 'a+acamas 1orp!" /+, U.S. 0.*, 0+.'++, *6+ S.3t. **--, **/0'/-, 55 1.Gd.0d 052, -*0 !*5++" !reaffirming the standard in 1arson ".

In 1arson" the 3ourt held that a district courtLs order refusing to enter a consent decree was immediately appealable. #he proposed decree would have permanently en oined an employer from discriminating against black employees and would have implemented several ma or changes in the employerLs hiring system. ;ppeal under E *050!a"!*" was ustified because the order might deprive the employees of their opportunity to settle the case on the terms negotiated, and the employees alleged that they would suffer irreparable in ury unless they received in unctive relief at the earliest opportunity. Under these circumstances, requiring the parties to go forward with the litigation had the practical effect of refusing in unctive relief which might have serious, perhaps, irreparable consequence and could be effectually challenged only by immediate appeal. In an earlier case applying similar reasoning, the (ifth 3ircuit held that a stay was immediately appealable under 0+ U.S.3. E *050!a"!*" when the plaintiff sought in unctive relief. *old$erg v! 1are+" 26* (.0d 2,- !,th 3ir.*5.5". #here, the plaintiff had requested a temporary in unction, and the district court abstained to allow state court resolution of state law issues. 4ecogniFing the potential delay of years inherent in the abstention order, the court held that Iwhen a temporary in unction has been sought and a stay has been granted to permit a state court to determine pertinent issues under 2ngland" the order operates as a denial of a temporary in unction and is thus appealable under E *050!a"!*".J Id! at 2,+7 see also 'oses v! innear" /56 (.0d 0*, 0/ !5th 3ir.*5./" !stay pending plaintiffLs exhaustion of state remedies immediately appealable as the denial of an in unction when plaintiff sought in unctive relief". ;s a practical matter in this case, the stay order amounts to the same thing as denial of an in unction because equitable relief is sought only on the 3ivil 4ights claims, and if those claims are not allowed to go forward, there is no way )rivitera can seek to stop the license revocation proceeding. #he effect is twofold. (irst, having to initiate a state court action to determine the pendent claims when no such action is currently pending could delay indefinitely the ultimate resolution of )riviteraLs claim for in unctive relief. Secondly, and of greater significance is the fact that $oth the stay and the denial of in unctive relief have the effect in this case of denying the in unction. #he district court denied )riviteraLs request for preliminary in unction in part on the ground that the hearing was three months away and on that account he had failed to show irreparable in ury. #he stay would preclude his renewing the request as the hearing got closer and his in ury, arguably more immediate. (H- #herefore, either part of the order, if left in place, would deny preliminary relief. (H-. ;lthough we have difficulty with the district courtLs conclusion on this point, see infra +5., it nevertheless was part of its order and compounds the effect of the stay in this case. #he second part of the 1arson test is also met. 1arson requires that to be immediately appealable, the order have Iserious, perhaps irreparable, consequenceJ that cannot be effectually challenged except by immediate appeal. /,6 U.S. at +/, *6* S.3t. at 555, 2. 1.Gd.0d at 2/. In that case plaintiffs alleged they would suffer (894 irreparable in ury unless they obtained in unctive relief restructuring defendantsL transfer and promotional policies. %ecause they could not obtain that relief until the proposed consent decree was entered, delay in reviewing the district courtLs refusal to enter the decree sufficed to meet the test. In this case )rivitera does not in terms allege irreparable in ury, $$but claims that systematic harassment and prosecution of the license revocation proceeding in bad faith violates his constitutional rights. If these allegations are proved and the hearing would be the last step in the process, denial of preliminary relief and the impossibility of a trial on the merits before the hearing is held could amount to irreparable in ury.(H/ #he stay could not effectively be reviewed on appeal from a final udgment because the hearing would already have occurred. #hat would be a sufficiently serious consequence to warrant our concluding that the stay order is immediately appealable along with denial of the request for preliminary relief. (H/. See Younger" /6* U.S. at /+, 5* S.3t. at .,0, 0. 1.Gd.0d at 2.+, and discussion infra +5+. %ecause in the circumstances the stay order has the practical effect of permitting the revocation hearing to be held and therefore of denying )riviteraLs request for in unctive relief, and because this is a serious consequence which can only be challenged by immediate appeal, we conclude that both the denial of the preliminary in unction and the stay are appealable under 0+ U.S.3. E *050!a"!*". In light of this conclusion, it is unnecessary to decide whether the stay is also a final order for purposes of E *05*. III

M0N )rivitera next argues on the merits of the issue that the district court improperly stayed the federal action. He contends that the order effectively requires exhaustion of state administrative and udicial remedies when that is not required under /0 U.S.3. E *5+-, deprives him of the choice of forum to which he is entitled as a E *5+- claimant, and amounts to abstention even though the district court recogniFed that no abstention doctrine applies. #he district court stayed the action for two reasons@ first, should )rivitera prevail on either of his pendent claims for an order compelling arbitration or a declaration that his probationary status is illegal, he would possibly receive all of the relief sought in the federal action and his constitutional claims would be moot7 and alternatively, a decision favoring %:B; on those claims would impact the courtLs ruling on the federal constitutional issues raised in the complaint. #he district court also noted there was no longer any need for immediate federal intervention since the license revocation hearing would not be held for several months. ;t the same time, the court denied %:B;Ls motion to dismiss on abstention grounds, finding that abstention under Burford v! Sun /il 1o!" -*5 U.S. -*,, 2- S.3t. *65+, +. 1.Gd. */0/ !*5/-", was not appropriate because appeals of %:B; decisions are not concentrated in one court, and Younger abstention did not apply because of a recogniFed exception which precludes abstention where the state proceeding is brought in bad faith or for harassment. Younger v! Harris" /6* U.S. at /5, 5* S.3t. at .,-, 0. 1.Gd.0d at 2.+'.5. #he court found that )rivitera made a sufficient showing of bad faith or harassment to invoke the exception. #he district court correctly recogniFed that its decision to stay the federal issues could not be compelled by notions of exhaustion, Felder v! 1ase+" /+. U.S. *-*, */2'/., *6+ S.3t. 0-60, 0-**, *6* 1.Gd.0d *0-, */-'// !*5++" 7 Pats+ v! Board of .egents" /,. U.S. /52, ,*2, *60 S.3t. 0,,., 0,2+, .- 1.Gd.0d *.0, *++ !*5+0" . However, if a court inappropriately abstains, IMtNhe practical effect of abstention ... may be to impose an exhaustion requirement not appropriate to /0 U.S.3. E *5+-.J Pearl Inv! 1o! v! 1it+ and 1ount+ of San Francisco" ../ (.0d */26, */2- !5th 3ir.*5+,", cert! denied" /.2 U.S. **.6, *62 S.3t. 0+5*, 56 1.Gd.0d 5.+ !*5+2". #herefore it is necessary to determine whether the district court improperly abstained. M-N ;lthough the district court did not treat its order to stay the action and remove (895 it from the active calendar as abstaining, the stay amounts to abstention because it surrendered federal urisdiction for an indefinite period to defer to a state courtLs udgment. Dn appeal, the standard of review for abstention orders is abuse of discretion. &lmodovar v! .einer" +-0 (.0d **-+, **/6 !5th 3ir.*5+." . However, IMiNn abstention cases, =discretion must be exercised within the narrow and specific limits prescribed by the particular abstention doctrine involved.> J &merican IntOl (nderwriters v! 1ontinental Ins! 1o!" +/- (.0d *0,-, *0,2 !5th 3ir.*5++" !quoting 19Y #evelopment 1o! v! 1it+ of .edlands" .6- (.0d -.,, -.. !5th 3ir.*5+-" ". IMUNnless certain exceptional circumstances are present, a district court has little or no discretion to abstain.... &hether these requirements were met ... is ... reviewed de novo.J &lmodovar" +-0 (.0d at **/6. &e turn, then, to whether the stay meets the requirements of an established abstention doctrine. Under Younger" a federal court will decline to en oin a state proceeding out of concerns for comity and federalism. Having found the bad faith exception applicable, the district court clearly did not act on this basis. In Burford" the 3ourt held that a federal court should have abstained from determining the validity of an agency decision when the state had established an elaborate administrative scheme, with udicial review concentrated in one countyLs courts to ensure uniformity in the particularly complex area of oil and gas regulation. #he district court correctly recogniFed that deciding this case would not interfere with any similar effort by 3alifornia to maintain consistency in a complex area of law because 3alifornia had not established any such system of concentrated udicial review. ; district court invoking either Younger or Burford abstention would simply decline to decide the case, not postpone its decision as was done here. #he district courtLs ustification for the stay'that the state court litigation could effectively moot the federal claims so that ad udicating the constitutional issues could thus be avoided'sounds most like Pullman abstention, but does not meet its criteria. In .ailroad 1ommOn v! Pullman 1o!" -*0 U.S. /52, ,6*, 2* S.3t. 2/-, 2/,, +, 1.Gd. 5.* !*5/*" , the Supreme 3ourt established the principle that a federal court can use its discretion to abstain from deciding a constitutional claim if resolution of state law issues might mean that Ithe constitutional issue does not arise.J #he purposes of Pullman abstention are said to be to Iavoid both unnecessary ad udication of federal questions and =needless friction with state policies....L J Hawaii Housing &uth! v! 'idkiff" /2. U.S. 005, 0-2, *6/ S.3t. 0-0*, 0-0.,

+* 1.Gd.0d *+2, *5/ !*5+/" !quoting Pullman ". &e have formulated the elements of Pullman abstention as follows@ !*" #he complaint Itouches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its ad udication is open.J !0" ISuch constitutional ad udication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy.J !-" #he possibly determinative issue of state law is doubtful. 1anton v! Spokane School #ist! 0o! A7" /5+ (.0d +/6, +/, !5th 3ir.*5./" !quoting Pullman ". #he district courtLs order fails to meet the first prong of the 1anton test because whether )rivitera was harassed does not touch a sensitive area of social policy. 8eciding his constitutional claim would not affect any social policy7 it would only affect him and the defendants in this case. It is unclear with respect to the second prong that a state court decision on whether to compel arbitration or declare that part of the proceeding having to do with )riviteraLs probationary status unlawful would terminate the controversy so that resolution of the federal constitutional issues can be avoided. &hether )rivitera wins or loses on either cause of action, the %:B; proceeding can continue and so can its alleged harassment and bad faith prosecution. (H, #hus, ad udication of the constitutional (89# issues would not plainly be avoided, even though they possibly could go away. (H,. &e emphasiFe that we express no view on the merits of )riviteraLs claims. :oreover, the general principles of Pullman abstention do not support the stay in this case. #he usual situation for Pullman abstention is that of the leading case itself@ ; state statute is challenged as unconstitutional and abstention permits the state courts to interpret it so as possibly to avoid unconstitutionality. See" e!g!" &lmodovar v! .einer" +-0 (.0d **-+ !5th 3ir.*5+." !statutes are susceptible to limiting construction". In this case, however, )rivitera is not challenging a state statute. Instead, his constitutional claim is highly individualiFed, based on personal harassment by certain state officials. Ho law needs interpreting before the federal court can decide if his constitutional rights have been violated. #he district courtLs order similarly fails to meet the criteria for staying a federal proceeding under 1olorado .iver -ater 1onservation #istrict v! (nited States" /0/ U.S. +66, 52 S.3t. *0-2, /. 1.Gd.0d /+- !*5.2". #he purpose of a 1olorado .iver stay is to avoid duplicative litigation, which is Iunrelated to considerations of proper constitutional ad udication.J Id! at +*., 52 S.3t. at *0/2, /. 1.Gd.0d at /5+. It involves situations in which there is a concurrent state proceeding and wise udicial administration dictates staying the federal action in light of certain exceptional circumstances. Id! at +*.'*+, 52 S.3t. at *0/2, /. 1.Gd.0d at /5+. Here, no state court action was pending, and the district court gave no indication that its purpose was to avoid duplicative litigation. #herefore, a 1olorado .iver analysis also fails to ustify the stay. See Herrington v! 1ount+ of Sonoma" .62 (.0d 5-+, 5-5'/6 !5th 3ir.*5+-" !1olorado .iver abstention not ustified when state court action was not at an advanced stage because presence of state proceeding in no way wasted udicial resources". #he stay is thus not supported by any of the established principles underlying federal court abstention. It did not serve the purpose of allowing a state to interpret its own laws, nor did it serve the purpose of avoiding duplicative litigation. Instead, it simply allowed the district court to postpone, and possibly avoid, having to ad udicate the case. M/N %:B; seeks to ustify the stay on the ground that, since dismissal of the pendent state claims was proper under (nited 'ine -orkers" retention of the federal claims on the active calendar would have been an inappropriate use of udicial resources. However, in light of the Ivirtually unflagging obligation of the federal courts to exercise the urisdiction given them,J 1olorado .iver" /0/ U.S. at +*., 52 S.3t. at *0/2, /. 1.Gd.0d at /5+, the mere fact that the state law claims could decide the case is not enough to ustify abstention. ; federal court may not simply refuse to ad udicate federal claims any time an alternative state law theory is available to the plaintiff.

M,N %:B; also argues that the order staying resolution of the federal claims was within the courtLs discretion to control its docket and is thus within the mandate of (ed.4.3iv.). * to secure the ust, speedy, and inexpensive determination of actions. &hile we surely endorse effective management of crowded calendars, %:B; points to no authority permitting a district court to put a federal constitutional case that seeks in unctive relief on hold, pending resolution of state causes of action which have not yet been filed, whose disposition will not plainly dispose of the need to reach the constitutional issues, and when the requirements for abstention are not met. It is not necessary to say'and we should not be interpreted as implying'that a stay for sound reasons of udicial administration and fairness and savings to the parties is never appropriate. &e are simply obliged to hold in this case that this stay was not providently imposed. &e therefore reverse the portion of the district courtLs order staying the federal action. I? M2N (inally, we consider whether the district court erred in denying )riviteraLs (897 motion for preliminary in unction. I;ppellate review of a decision to grant or deny a preliminary in unction is restricted to determining whether the lower court abused its discretion or based its decision on an erroneous legal standard or clearly erroneous findings of fact. Unless a district court incorrectly applies the law, its grant or denial of a motion for a preliminary in unction is sub ect to very limited review.J Sierra 1lu$ v! 'arsh" +*2 (.0d *-.2, *-+0 !5th 3ir.*5+." !citation omitted". )rivitera argues that this court should expand its review in this case because the district court incorrectly applied the law by abstaining. However, as we read the order, the stay decision had nothing to do with the decision on the merits of the claim for in unctive relief, so the error in staying the action should not affect the standard of review for the preliminary in unction.(H2 (H2. #he order is ambiguous in the respect )rivitera argues. It states, Ithere is no indication at this time that plaintiff will succeed on the merits, or that the balance of hardships tips sharply in his favor.J !Gmphasis added." It is possible that the court was finding that, because resolution of the state claims would be necessary in order to determine likelihood of success on the merits, and he had stayed the federal claims to which the request for in unctive relief is attached, it was not possible for )rivitera to make a showing Iat this time.J #o the extent that reading is accurate, it would implicate the doctrine of exhaustion of remedies and would not be appropriate in a E *5+- case. See supra" +5/. M.NM+N #o obtain a preliminary in unction, the moving party must demonstrate Ieither !*" a combination of probable success on the merits and the possibility of irreparable in ury, or !0" that serious questions are raised and the balance of hardships tips sharply in its favor.J 1halk v! (nited States #ist! 1ourt" +/6 (.0d .6*, .6/ !5th 3ir.*5++". #he district court concluded that )rivitera had not met this burden because he had failed to demonstrate irreparable in ury since the license revocation hearing would not take place for several months, and he had not demonstrated a likelihood of success on the merits or that the balance of hardships tipped sharply in his favor. #he district court correctly stated the rule of law relating to preliminary in unctions, so the only questions are whether it abused its discretion in applying the standard or whether it based its conclusions on clearly erroneous findings of fact. %ecause of the orderLs brevity we may misapprehend the district courtLs reasoning. However, we are troubled by apparent inconsistencies in the findings and conclusions, and believe that the courtLs determination on irreparable in ury may suffer a fatal defect. (or these reasons we conclude that it would be appropriate on remand for the court to take another look at the request for in unctive relief. In so doing, we again emphasiFe that we have no view on the merits of )riviteraLs motion7 we vacate the order and remand solely to give the district court an opportunity to consider the matter afresh, in light of some of the difficulties we see. M5N (or example, in ruling on irreparable in ury the district court apparently relied on the fact that the hearing was three months away. 3ourts generally do look at the immediacy of the threatened in ury in determining whether to grant preliminary in unctions. See" e!g!" 1ari$$ean 'arine Servs! 1o! v! Baldridge" +// (.0d 22+, 2./ !5th 3ir.*5++" !Ia plaintiff must demonstrate immediate threatened in ury as a prerequisite to preliminary in unctive relief J". Such an immediacy requirement is reasonable when an ongoing activity is to be en oined because the need for immediate relief must be great enough to outweigh the hardship to the defendant.

%ut in this case, it would have made no difference if the hearing had been preliminarily en oined at the time of the district courtLs order or two months later. #he hearing was and is a future event, and it is either en oinable or it is not. 8enying the preliminary in unction for this reason required )rivitera to bring the motion again later, simply delaying resolution of a question which could ust as easily have been resolved at the time. #hus, the district courtLs reliance on the timing of the hearing was misplaced. (898 In considering the other side of the continuum, the court summarily stated that )rivitera had demonstrated neither a likelihood of success on the merits nor that the balance of hardships tipped sharply in his favor. It gave no further explanation of those findings. However, to conclude that )rivitera had not shown likely success on the merits or raised a serious question seems inconsistent with the other portion of the order in which the udge concluded that )rivitera had produced sufficient facts to invoke the bad faith or harassment exception to Younger! )riviteraLs whole claim for relief is based on the alleged violation of his constitutional rights because of %:B;Ls discriminatory or harassing prosecution. &ithout further explanation, it is difficult to see how )rivitera has failed to demonstrate an+ likelihood of success on the merits if he has in fact shown that the %:B; proceeding was brought in bad faith or for harassment. It is similarly difficult to see how )rivitera has failed to demonstrate any possibility that the balance of hardships could tip in his favor, if he has succeeded in demonstrating that the %:B; proceeding is a bad faith prosecution. #he 3ourt in Younger suggested that a prosecution brought in bad faith or for harassment could cause irreparable in ury sufficient to ustify an in unction. #he 3ourt held that IMcNertain types of in ury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered =irreparable> in the special legal sense of that term.J /6* U.S. at /2, 5* S.3t. at .,*, 0. 1.Gd.0d at 2.2' ... %ut in so holding, it specifically distinguished cases in which the prosecution was brought in bad faith@ I#hese circumstances, as viewed by the 3ourt sufficiently establish the kind of irreparable in ury, above and beyond that associated with the defense of a single prosecution brought in good faith, that had always been considered sufficient to ustify federal intervention.J Id! at /+, 5* S.3t. at .,0, 0. 1.Gd.0d at 2.+.(H. (H.. &hile the Hinth 3ircuit has not addressed this issue, the (ifth 3ircuit has held that IMaN showing of bad faith or harassment is equivalent to a showing of irreparable in ury under Younger" and irreparable in ury independent of the bad faith prosecution need not be established.J Fit,gerald v! Peek" 2-2 (.0d 5/-, 5// !,th 3ir.", cert! denied" /,0 U.S. 5*2, *6* S.3t. -6,*, 25 1.Gd.0d /06 !*5+*". In that case, the court affirmed an in unction against a state court prosecution, holding that IMaN bad faith showing of this type will ustify an in unction.J Id! at 5/,7 see also Bishop v! State Bar of Texas" .-2 (.0d 050, 05/ !,th 3ir.*5+/" !holding that Iirreparable in ury under Younger is established by a sufficient showing of retaliatory or bad faith prosecution, and a federal in unction may issueJ against a state bar associationLs disciplinary proceeding". In light of this language, the district courtLs conclusion that )rivitera had failed to address irreparable in ury or demonstrate an+ hardship, seems inconsistent with the conclusion that he had demonstrated bad faith. #his inconsistency suggests that the grounds for a preliminary in unction, aside from the timing of the hearing, may not have been fully considered. ;gain, we intimate no view on the outcome of the analysis, but rather believe that a balancing must take place in consideration of Younger and its progeny. %ecause it was error to rely solely on the fact that the hearing was three months off, we hold that the district court abused its discretion in denying the preliminary in unction primarily on that basis. &e therefore reverse, vacate the order and remand to give the district court an opportunity to reconsider )riviteraLs motion for preliminary in unction without reference to the imminence of the %:B; hearing and with reference to applicable legal standards for the type of irreparable in ury that )rivitera asserts. 4G?G4SG8, ?;3;#G8 and 4G:;H8G8. -/o*er" +. Se>&, 87 -.3d 1318 $9t) C&r.$@a*a&P&',.un 07, 199#'

Id. at 2=. 6inally, they contend that society could lawfully proscri!e the practice of cos etic surgery entirelyM /)ociety would !e wholly

within its rights to outlaw what Dr. 6lowers does as a cri e.0 Id. 8e phasis in original;. **<hese !ald assertions suggest a harassing otivation irrespective of the evidence and !elie defendantsH clai of good faith.
(1 4obert S. (lowers, :.8., is the ob ect of a disciplinary action brought by the 4egulated Industries 3omplaints Dffice !I4I3DJ" of the State of Hawaii 8epartment of 3ommerce and 3onsumer ;ffairs, the prosecutorial agency for the State of Hawaii %oard of :edical Gxaminers. 8r. (lowers alleges that the disciplinary action was brought in bad faith. He brought suit under /0 U.S.3. E *5+- against certain 4I3D officials !I4I3D defendantsJ" for monetary damages and a permanent in unction. 8r. (lowers then moved for a preliminary in unction. #he district court denied the motion for preliminary in unction, abstained under Younger v! Harris" /6* U.S. -. !*5.*", and issued a stay of federal proceedings pending the outcome of the state disciplinary action. &e have urisdiction under 0+ U.S.3. E *050!a". &e reverse the district courtLs udgment, vacate the order staying federal proceedings and instruct the district court to enter a preliminary in unction. I. 'otion to Strike &nswering Brief &e first address 8r. (lowersL motion to strike defendantsL answering brief. In support of their opposition to 8r. (lowersL emergency motion for stay or in unction of state administrative proceedings, the 4I3D defendants attached a supplemental affidavit and exhibits that were not part of the record before the district court. 8efendants frequently cite to this supplemental material in their brief for this appeal. #hey contend that the material is a subsequent development of which this court can take notice under 'iddlesex 1ount+ 2thics 1ommOn v! *arden State Bar &ssOn" /,. U.S. /0- !*5+0". 3ontrary to defendantsL assertions, 'iddlesex contemplates the recognition of independent developments subsequent to the proceedings below7 it does not contemplate shifts in litigation strategy such as defendantsL new willingness to make voluntary disclosures of evidence in their possession at the time of the district court proceedings. %ecause the supplemental material is not part of the record on appeal as defined by Fed!.!&pp!P! *6, references to it violate 0inth 1ir!.! 0+'0.+. ;ccordingly, we strike from defendantsL brief all references to materials not part of the record before the district court, and we give them no consideration in ad udicating this appeal. See irshner v! (niden 1orp! of &merica" +/0 (.0d *6./, *6..'.+ !5th 3ir.*5++" !holding that IMpNapers not filed with the district court ... are not part of the clerkLs record and cannot be part of the record on appealJ". 8r. (lowersL motion to strike is denied in all other respects. II. #enial of Preliminar+ InBunction and Younger &$stention &e review de novo whether Younger abstention was required. -einer v! 1ount+ of San #iego" 0- (.-d 02-, 022 !5th 3ir.*55/"7 Partington v! *edan" ++6 (.0d **2, *06 !5th 3ir.*5+5" !reviewing de novo Ieven though we are reviewing the action of a district court in granting or denying an in unctionJ", cert! denied" /5. U.S. *6-+, and cert! granted and vacated on other grounds" /5. U.S. *606 !*556". (2 &e find that 8r. (lowers has demonstrated that the 4I3D defendants are prosecuting him in bad faith and, therefore, that Younger abstention was not appropriate. See 'iddlesex" /,. U.S. at /05. $$; prosecution is brought in bad faith if, inter alia" it is brought without a reasonable expectation of obtaining a valid conviction . ugler v! Helfant" /0* U.S. **., *02 n. 2 !*5.-". #he district court found that the Iprosecution was brought with rather weak evidence, and without a strong basis to expect to prevail.J Drder 8enying )laintiffLs :otion for )reliminary In unction at *2. In addition, the court found that while the 4I3D defendants made Ilittle effort to rebut plaintiffLs allegations,J 8r. (lowers presented evidence that !*" he is a distinguished and renowned plastic surgeon 7 !0" that defendant Seki, the attorney in charge of the 4I3D investigation, breached a promise to allow plaintiff to respond to potential charges before a disciplinary petition was prepared7 !-" that :r. Harada, the %oard investigator, conducted the investigation in a biased and slanderous manner7 !/" that the petition against M8r. (lowersN is replete with false allegations and factual inaccuracies7 !," that the charges brought against M8r. (lowersN are without merit7 and !2"

that leading physicians in the community, after review of the petition and the underlying facts, roundly condemn the petition as unwarranted. (urther, the district court found that the 4I3D defendants Iconducted their investigation in a lackluster and unprofessional manner and the tactics of their investigator are highly questionable, to say the least.J &e agree with the district courtLs analysis of the evidence. &e disagree, however, with the courtLs conclusion that 8r. (lowers failed to demonstrate bad faith because the state has offered some evidence for its case. 8r. (lowers has introduced undisputed evidence that effectively negates each charge leveled against him by 4I3D. &e are persuaded that the 4I3D defendants have no reasonable expectation of success. :oreover, evidence alone, even if it rises to the level of probable cause, will not bar a finding of bad faith. See" e!g!" Pere, v! Ledesma" /6* U.S. +0, **+ n. ** !*5.*" !%rennan, <. concurring in part and dissenting in part"7 1ullen v! Fliegner" *+ (.-d 52, *6-'*6/ !0d 3ir.", cert! denied" ,*- U.S. 5+,, **, S.3t. /+6 !*55/"7 (nited States v! P!H!2!" Inc!" 52, (.0d +/+, +,- !*6th 3ir.*550" 7 Fit,gerald v! Peek" 2-2 (.0d 5/-, 5/, !,th 3ir." , cert! denied" /,0 U.S. 5*2 !*5+*". #he 4I3D defendants have demonstrated in their brief a substantial bias against both 8r. (lowers and his profession. #hey assert speculative claims for which they have failed to demonstrate any basis regarding the motives for his professional activities, his income, the psychological profiles of his patients, and the social value of cosmetic surgery among other declarations for which there is no support in the record. (or example, the 4I3D defendants declare, I8r. 4obert S. (lowers, :.8., is a cosmetic plastic surgeon who resides in Honolulu, Hawaii, and who makes millions of dollars performing breast enlargement, facelift, and other forms of socially questionable cosmetic plastic surgery,J ;ppelleesL %r. at 0, and, IMaNlthough he professes to a busy professional schedule of lectures, teaching and other =good works,> most of these have occurred at such popular resort or travel destinations as ... Hew Oork, :arseille MsicN, )aris, #okyo, :iami, %ankgok MsicN, )uerto ?illarta, and various resort communities on the outer Hawaiian Islands and elsewhere,J Id! at /. #he 4I3D defendants also argue that their prosecution of 8r. (lowers should be afforded great deference because cosmetic surgery has been the ob ect of societal derision@ (3 Society has long frowned on cosmetic surgery of the type typically practiced by 8r. (lowers, not only because it drains millions if not billions of dollars of government and private subsidies from medical procedures that demonstrably save lives, but because that surgery is =sold> to the MsicN some of the most psychologically vulnerable individuals in our society.... Id! at 0,. (inally, they contend that society could lawfully proscribe the practice of cosmetic surgery entirely@ ISociety would be wholly within its rights to outlaw what 8r. (lowers does as a crime .J Id! !emphasis in original". $$#hese bald assertions suggest a harassing motivation irrespective of the evidence and belie defendantsL claim of good faith. 3onsistent with our finding of bad faith and conclusion that Younger abstention was inappropriate, we direct the district court to issue a preliminary in unction barring the 4I3D defendants from pursuing the disciplinary action against 8r. (lowers. &e therefore vacate the order staying federal proceedings. III. .eHuest for &ttorne+Os Fees 8r. (lowers has requested an award of attorneyLs fees for this appeal as a Iprevailing partyJ under /0 U.S.3. E *5++.(H* ; plaintiff is a prevailing party under section *5++ only when !*" it wins on the merits of its claim, !0" the relief received materially alters the legal relationship between the parties by modifying the defendantLs behavior, and !-" that relief directly benefits the plaintiff. 'artine, v! -ilson" -0 (.-d */*,, */00 !5th 3ir.*55/" !citing Farrar v! Ho$$+" ,62 U.S. *6-, ***'*0 !*550"". 8r. (lowers meets each of the 'artine, criteria with respect to the issues before this court. #he parties may request fees and state their ob ections pursuant to 0inth 1ir!.! -5'*.2 9 -5'*... #he matter is referred to the ;ppellate 3ommissioner for a determination of a reasonable fee award. #his sum should be added to an award, if any, determined by the district court following the resolution of this case below. (H*. /0 U.S.3. E *5++ provides in relevant part@

I!b" ;ttorneyLs fees In any action or proceeding to enforce a provision of section M N ... *5+- ... of this title, ... the court, in its discretion, may allow the prevailing party ... a reasonable attorneyLs fee as part of costs.J 4G?G4SG8, ?;3;#G8 and 4G:;H8G8. Cu//en +. -/&egner, 18 -.3d 9#, 89 Ed. La* Rep. 108# $2nd C&r.$ .Y.',-e8 28, 1994' #eacher brought action challenging school districtLs method of enforcing statutory prohibition of electioneering within *66 feet of polling place during school board election. #he United States 8istrict 3ourt for the Southern 8istrict of Hew Oork, 3harles 1. %rieant, <., permanently en oined disciplinary proceeding. School district appealed. #he 3ourt of ;ppeals, 4obert 1. 3arter, 8istrict <udge, sitting by designation, held that@ !*" school district had not given notice required by statute7 !0" Younger abstention was not required7 !-" teacher had not waived right to have claims heard in federal district court7 and !/" award of attorneyLs fees was proper. ;ffirmed. Kearse, 3ircuit <udge, filed dissenting opinion. &est Headnotes 011 E/e5t&on" 144 309

*// Glections *//PI ?iolations of Glection 1aws *//k-65 k. In Ceneral. :ost 3ited 3ases School district failed to provide adequate notice of *66 foot boundary, and thus teacherLs failure to abide by *66 foot boundary did not violate statute electioneering within *66 feet of polling place during school board election, where district failed to post required Idistance markersJ and never advised teacher of precise location of boundary, but rather simply told him orally that he was violating statute. H.O.:cKinneyLs Gducation 1aw E 06-*'a. 021 Con"t&tut&ona/ La* 92 1#92

50 3onstitutional 1aw 50P?III (reedom of Speech, Gxpression, and )ress 50P?III!(" )olitics and Glections 50k*250 k. )olling )laces. :ost 3ited 3ases !(ormerly 50k56.*!*.0"" Cr&!&na/ La* 110 37.10$2'

**6 3riminal 1aw **6II 8efenses in Ceneral **6k-2., Dfficial ;ction, Inaction, 4epresentation, :isconduct, or %ad (aith **6k-..*6 8iscriminatory or Selective )rosecution **6k-..*6!0" k. )articular 3ases. :ost 3ited 3ases E/e5t&on" 144 309

*// Glections *//PI ?iolations of Glection 1aws *//k-65 k. In Ceneral. :ost 3ited 3ases ;llowing school district to inform teacher orally that he was violating statutory prohibition of electioneering within *66 feet of polling place during school board election rather than posting required *66 foot distance markers would

have facilitated curtailment of teacherLs (irst ;mendment right to express his views to voters as near to polling place as statute permitted, and selective enforcement of prohibition on electioneering. H.O.:cKinneyLs Gducation 1aw E 06-*'a7 U.S.3.;. 3onst.;mend. *. 031 Con"t&tut&ona/ La* 92 1#92

50 3onstitutional 1aw 50P?III (reedom of Speech, Gxpression, and )ress 50P?III!(" )olitics and Glections 50k*250 k. )olling )laces. :ost 3ited 3ases !(ormerly 50k56.*!*.0"" E/e5t&on" 144 309

*// Glections *//PI ?iolations of Glection 1aws *//k-65 k. In Ceneral. :ost 3ited 3ases #eacherLs (irst ;mendment interest in handing out literature at *66 foot line established by statute which prohibits electioneering within *66 feet of polling place during school board election was no less compelling than school districtLs interest in ensuring that he did not cross that line. H.O.:cKinneyLs Gducation 1aw E 06-*'a7 U.S.3.;. 3onst.;mend. *. 041 Con"t&tut&ona/ La* 92 1992

50 3onstitutional 1aw 50P?III (reedom of Speech, Gxpression, and )ress 50P?III!B" Gducation 50P?III!B"* In Ceneral 50k*5++ Gmployees 50k*550 k. )olitical Speech, %eliefs, or ;ctivity. :ost 3ited 3ases !(ormerly 50k56.*!..0"" E/e5t&on" 144 309

*// Glections *//PI ?iolations of Glection 1aws *//k-65 k. In Ceneral. :ost 3ited 3ases School district prevented teacher from exercising his (irst ;mendment right to full extent allowed under statute which prohibits electioneering within *66 feet of polling place during school board election, where it failed to post *66 foot markers required by statute or to advise teacher of *66 foot mark, but rather told teacher that he was too close to polling place to be permitted to distribute literature. H.O.:cKinneyLs Gducation 1aw E 06-*'a7 U.S.3.;. 3onst.;mend. *. 051 Cr&!&na/ La* 110 37.10$2'

**6 3riminal 1aw **6II 8efenses in Ceneral **6k-2., Dfficial ;ction, Inaction, 4epresentation, :isconduct, or %ad (aith **6k-..*6 8iscriminatory or Selective )rosecution **6k-..*6!0" k. )articular 3ases. :ost 3ited 3ases E/e5t&on" 144 309

*// Glections *//PI ?iolations of Glection 1aws

*//k-65 k. In Ceneral. :ost 3ited 3ases School districtLs method of enforcement of statutory prohibition of electioneering within *66 feet of polling place during school board election, by informing teacher orally that he was violating statutory prohibition of electioneering within *66 feet of polling place during school board election rather than posting required *66 foot distance markers, facilitated arbitrary and discriminatory enforcement of statute. H.O.:cKinneyLs Gducation 1aw E 06-*'a. 0#1 Con"t&tut&ona/ La* 92 1#80

50 3onstitutional 1aw 50P?III (reedom of Speech, Gxpression, and )ress 50P?III!(" )olitics and Glections 50k*2+6 k. In Ceneral. :ost 3ited 3ases !(ormerly 50k56.*!*.0"" Covernment body charged with enforcing law that seeks to preserve delicate balance between exercise of (irst ;mendment rights and promotion of fair and honest elections should not be permitted to ignore safeguards designed to preserve that balance, and then, at dayLs end, be able to report only on activities of single individual with whom bad blood already existed. H.O.:cKinneyLs Gducation 1aw E 06-*'a7 U.S.3.;. 3onst.;mend. *. 071 -edera/ Court" 1702 4#

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/2 k. 3onstitutional and (ederal Buestions, ;bstention. :ost 3ited 3ases (ederal abstention doctrine is based on premise that ordinarily state proceeding provides adequate forum for vindication of federal constitutional rights, so that due deference ought to be paid the principles of comity and federalism. 081 -edera/ Court" 1702 4#

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/2 k. 3onstitutional and (ederal Buestions, ;bstention. :ost 3ited 3ases Younger abstention applies to state udicial and administrative proceedings, so long as state court has means of reviewing constitutional claims. 091 -edera/ Court" 1702 41

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/* k. Hature and Crounds in Ceneral. :ost 3ited 3ases -edera/ Court" 1702 4#

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/2 k. 3onstitutional and (ederal Buestions, ;bstention. :ost 3ited 3ases %efore federal court can abstain under Younger, three factors must be present@ there must be ongoing state proceeding7 important state interest must be implicated in proceeding, and federal plaintiff must have adequate opportunity for udicial review of constitutional claims during or after proceeding.

0101 -edera/ Court" 1702

54

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention *.6%k,/ k. In unctions in Ceneral. :ost 3ited 3ases (ederal courts should still afford in unctive relief, despite Younger abstention, to plaintiff who successfully establishes kind of irreparable in ury, above and beyond that associated with defense of single prosecution brought in good faith, that has always been considered to ustify federal intervention. 0111 -edera/ Court" 1702 41

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/* k. Hature and Crounds in Ceneral. :ost 3ited 3ases (ederal intervention would still be warranted upon showing of $$bad faith, $$harassment or any other exceptional circumstance that would call for equitable relief. 0121 -edera/ Court" 1702 41

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/* k. Hature and Crounds in Ceneral. :ost 3ited 3ases Cenerally, for showing of bad faith, harassment, or any other exceptional circumstance that would call for equitable relief to be made, so as to warrant federal intervention, party bringing state action must have no reasonable expectation of obtaining favorable outcome. 0131 -edera/ Court" 1702 41

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/* k. Hature and Crounds in Ceneral. :ost 3ited 3ases $$(ederal courtLs refusal to abstain is ustified where prosecution or proceeding has been brought to $$retaliate for or $$to deter constitutionally protected conduct, or where prosecution or proceeding is otherwise brought in bad faith or for purpose to harass. 0141 -edera/ Court" 1702 41

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/* k. Hature and Crounds in Ceneral. :ost 3ited 3ases If prosecution or proceeding has been brought to retaliate for or to deter constitutionally protected conduct, or where prosecution or proceeding is otherwise brought in bad faith or for purpose to harass, showing of retaliatory or bad faith prosecution establishes irreparable in ury for purposes of Younger doctrine, and expectations for success of party bringing action need not be relevant. 0151 -edera/ Court" 1702 41

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral

*.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/* k. Hature and Crounds in Ceneral. :ost 3ited 3ases (ederal abstention would serve no purpose, where prosecution or proceeding has been brought to retaliate for or to deter constitutionally protected conduct, or where prosecution or proceeding is otherwise brought in bad faith or for purpose to harass, as state cannot have legitimate interest in discouraging exercise of constitutional rights, or in continuing actions otherwise brought in bad faith, thereby reducing need for deference to state proceedings. 01#1 -edera/ Court" 1702 #2

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention *.6%k20 k. School and Gducation 3ases. :ost 3ited 3ases -edera/ Court" 1702 855.1

*.6% (ederal 3ourts *.6%?III 3ourts of ;ppeals *.6%?III!K" Scope, Standards, and Gxtent *.6%?III!K", Buestions of (act, ?erdicts and (indings *.6%k+,, )articular ;ctions and )roceedings, ?erdicts and (indings *.6%k+,,.* k. In Ceneral. :ost 3ited 3ases 8istrict courtLs determination that bad faith exception to Younger doctrine applied, in action brought by school district against teacher to enforce statutory prohibition of electioneering within *66 feet of polling place during school board election, was not clearly erroneous, even though bad faith exception has been deemed to be narrow, $$where district court found past history of conflict with teacher, and that action had imposed chilling effect on teacherLs (irst ;mendment rights. H.O.:cKinneyLs Gducation 1aw E 06-*'a7 U.S.3.;. 3onst.;mend. *. (99 4D%G4# 1. 3;4#G4, 8istrict <udge@ #his is a challenge to the method adopted by the #uxedo Union (ree School 8istrict to enforce Hew Oork State Gducation 1aw E 06-*'a !IE 06-*'aJ". Section 06-*'a prohibits electioneering within *66 feet of a polling place during a school board election, and obligates the inspector of elections to place distance markers containing notice of the electioneering prohibition at a distance *66 feet from the polling place.(H* In the district court, ;ppellee did not challenge that portion of E 06-*'a establishing the *66'foot, or Icampaign free ,J Fone. 4ather, he attacked the means employed by the School 8istrict to enforce the statute on the grounds that the method chosen was not the least restrictive alternative for enforcing the statute, and thereby violated the (irst and (ourteenth ;mendments. $$#he district court agreed with ;ppellee, and so do we. (H*. #he complete statute reads as follows@ EJ 2031Ga. E/e5t&oneer&ng *&t)&n one )undred 6eet o6 po//&ng p/a5e pro)&8&tedN d&"tan5e !ar>er" *. ;t every election held for the office of trustee or member of a board of education and at every vote upon any proposition or issue in a school district where the election or vote is held at a different time from, and not during, the annual meeting of the district, there shall be conspicuously placed, by the inspectors of election, distance markers at a distance of one hundred feet from the polling place. Such distance markers shall indicate the prohibition contained herein and shall be so placed at least one'half hour before the opening of the polls and shall remain until the polls are closed. 0. ;t such elections or voting held at a different time from, and not during, the annual meeting of the district, while the polls are open no person shall do any electioneering within the polling place, or within one hundred feet therefrom in any public street, or within such distance in any place in a public manner and no banner, poster or placard on behalf of or in opposition to any candidate or issue to be voted upon

shall be allowed in or upon the polling place or within one hundred feet therefrom during the election. (or the purposes of this section, the one hundred foot distance shall be deemed to include a one hundred foot radial measured from the entrances, designated by the inspectors of election, to a building where such election is being held. #his section shall not be deemed to prohibit the board of trustees or board of education from displaying within any polling place a copy or copies of any budget or proposition to be voted upon.J H.O. Gducation 1aw E 06-*'a !:cKinney *5++". I. ;ppellee, %rian 3ullen, is a tenured high school science teacher who has been employed by the #uxedo Union (ree School 8istrict !the ISchool 8istrictJ" for the past *+ years. #he School 8istrict, along with its superintendent, 8r. Herbert (liegner !the ISuperintendentJ", and the six members of the School 8istrictLs %oard of Gducation, are ;ppellants in this appeal. Dn (ebruary *,, *556, the School 8istrict filed disciplinary charges alleging that 3ullen *" in violation of previous directives, took a group of students during the weekend on an unauthoriFed field trip in an aircraft to conduct a scientific experiment and 0" encouraged students to expose themselves, or ImoonJ him, in one of his classes . #here had been no previous disciplinary charges filed against 3ullen. #he disciplinary panel dismissed the second charge as being Iof no significance,J but found 3ullen guilty of the first and fined him A*0,6. #he panel indicated, however, that 3ullen Iis clearly a very fine teacher.J Dn (ebruary *-, *550, a new disciplinary charge was filed against 3ullen alleging that, despite prior directives not to do so, he ignited the aerosol spray of %inaca %reath Spray in the presence of elementary grade school students in the school cafeteria where he was serving as a cafeteria lunch supervisor. ;fter finding 3ullen guilty of this charge, the disciplinary panel suspended him for four months without pay, despite the School 8istrictLs argument that 3ullen should be terminated. #he School 8istrict is appealing the panelLs penalty decision, currently pending before the Hew Oork State 3ommissioner of Gducation. Dn :ay 2, *550, at the Ceorge (. %aker High School, the School 8istrict held an election for candidates for its %oard of Gducation and for a vote on the annual budget. #he Superintendent and the 8istrict 3lerk, :s. Hancy %ourke, were responsible for the conduct of these proceedings. (100 #he School 8istrict did not place distance markers *66 feet !or at any distance" from the entrance to the High School during the course of the :ay 2, *550 election. Ho written notice was posted advising the public of the electioneering prohibition, nor did anyone physically determine where the *66'foot campaign free Fone actually ended. In the previous nine years !through *6 elections", the School 8istrict did not use distance markers'and indeed did not possess any such markers'in any of these elections. ;t about -@-6 p.m. on :ay 2th, after his work day had ended !in accordance with the terms of the teachersL collective bargaining agreement", ;ppellee began to distribute copies of a flier protesting the fairness of the ongoing election and encouraging voters to vote InoJ for the two incumbent %oard of Gducation members, who were running unopposed. ;ppellee was positioned approximately /* feet from the entrance door of the High School. ;t about the same time, a member of the School 8istrict staff advised the Superintendent of what 3ullen was doing. #he Superintendent approached ;ppellee and requested that he remove himself from the steps of the High School because the law required that he be at least *66 feet from the entrance to the High School if he wanted to engage in any electioneering. ;ppellee replied that he was doing nothing wrong, that it was after school hours and the Superintendent could not tell him to do anything, and that he would not move unless instructed to do so by a police officer. #he Superintendent repeated his order to move, and on ;ppelleeLs failure to do so called the 3hief of )olice, asking him to send an officer to the High School to instruct ;ppellee to move to an appropriate distance from the polling place. ;t about -@/6 p.m., while the Superintendent was calling the police, <oseph Qanetti, the School 8istrictLs %usiness

;dministrator, observed ;ppellee handing out fliers. Qanetti advised ;ppellee that he was not outside the required statutory distance and that he must cease distributing fliers there and remove himself. ;s he had done with the Superintendent, 3ullen refused to move unless the police asked him to. ;t this point, the Superintendent returned, requested that Qanetti remain as a witness, and, in QanettiLs presence, instructed 3ullen to remove himself to *66 feet from the front door of the High School. ;ppellee again refused to move unless ordered to do so by the police. )olice officer <ohn <. Kelly arrived at the High School shortly thereafter, and found ;ppellee still handing out fliers less than *66 feet from the front of the High School. #he police officer told ;ppellee that he could not distribute the fliers within *66 feet of the High School, and that doing so violated state law. ;ppellee indicated to the police officer that he was not aware of the state law and that he would move. #he police officer then indicated a spot where ;ppellee could stand that would be Iwell outsideJ the *66 foot Fone. #he Superintendent observed ;ppellee at this new location for approximately *, or 06 minutes until /@*, p.m., at which time the Superintendent left the High School. )rior to leaving, the Superintendent told the 8istrict 3lerk that there had been trouble with ;ppellee electioneering within the campaign free Fone, and instructed her to call the police if she had any further problems. ;t approximately /@-6 p.m., the 8istrict 3lerk observed ;ppellee handing out fliers within *66 feet of the High SchoolLs front doors. ;fter phoning the police, she advised ;ppellee that he could not hand out fliers within *66 feet of the entrance to the High School. ; second police officer soon arrived and gave ;ppellee a copy of Hew Oork State Glection 1aw E +'*6/, which sets forth an electioneering prohibition similar to the one contained in E 06-*'a. ;ppellee agreed that the *66 foot prohibition extended from the front door of the High School, and the police officer then escorted ;ppellee to a point that they both agreed was beyond the *66 foot Fone. Hothing in the record establishes ;ppelleeLs whereabouts or activities, or if any prohibited electioneering occurred, between /@-6 p.m. and +@-6 p.m. ;t about +@-6 p.m., the Superintendent returned to the High School. (101 &hile he was standing inside, one or more voters came into the High School carrying ;ppelleeLs flier and told the Superintendent that one of the teachers was handing them out at the front of the steps of the High School. #he Superintendent, the 8istrict 3lerk, the %usiness ;dministrator and several members of the %oard of Gducation then went outside, and ;ppellee was again advised that he was violating state law and was asked to move. ;ppellee did not move, and the Superintendent went to call the police. It is uncertain whether a police officer came to the High School this third time. %etween +@,6 p.m. and the close of the polls at 5@66 p.m., ;ppellee continued to hand out the fliers at the front of the steps of the High School. #he %usiness ;dministrator approached ;ppellee and told him that what he was doing was illegal and directed him to leave. ;ppellee replied that he was beyond the *66'foot radius. Dn (ebruary 02, *55-, a disciplinary panel established pursuant to Hew Oork State Gducation 1aw E -606'a !the IE -606'a panelJ" heard charges that ;ppellee had violated E 06-*'a on three separate occasions on :ay 2, *550 . ;fter the presentation of the School 8istrictLs case and over the ob ection of the School 8istrictLs counsel, ;ppelleeLs counsel stated that ;ppellee had a right to seek a preliminary in unction staying the disciplinary proceeding because a (irst ;mendment issue was involved, but that counsel would instead seek to submit to the E -606'a panel a motion to dismiss based upon this (irst ;mendment issue. Ultimately, the School 8istrictLs counsel agreed, and the E -606'a panel agreed to hear the motion to dismiss based upon the constitutional claims only. %oth sides briefed the issue, and ;ppelleeLs motion was denied. ;fter learning of the E -606'a panelLs denial of his motion, ;ppellee commenced this action in the district court for the Southern 8istrict of Hew Oork seeking to en oin the disciplinary proceeding against him. (ollowing the partiesL stipulation to the relevant facts and oral argument, the district court rendered a decision from the bench. $$#he court found that ;ppellantsL prosecution of the charges and the commencement of the disciplinary proceeding violated ;ppelleeLs (irst ;mendment free speech rights, and so permanently en oined ;ppellants from continuing with the proceeding. ;ppellee had sought no money damages. <udge %rieant directed ;ppellants to pay ;ppelleeLs legal fees

in the amount of A*5,6+0.2,. #his appeal followed. II. M*N ;ppellee contends that the School 8istrictLs haphaFard method of enforcement failed to provide adequate notice of the *66 foot boundary, and that therefore his conduct did not !and could not" constitute a criminal violation of E 06-*'a. It follows, according to ;ppellee, that there was no ustification for the disciplinary proceedings instituted by the School 8istrict. &e agree. Section 06-*'a explicitly requires the posting of Idistance markers at a distance of one hundred feet from the polling place.J H.O. Gducation 1aw E 06-*'a!*" !:cKinney *5++". #hese markers demarcate the boundary of the campaign free Fone and provide notice to the public of the prohibition on electioneering within the Fone. #he markers are to be set up at least one'half hour before the polls open on election day, and are to remain up until the polls close . #his scheme minimiFes the potential for arbitrary or discriminatory enforcement by providing to the public uniform and continuous notice of what constitutes electioneering and of where electioneering is prohibited. School officials, who otherwise lack discretion to determine whether a violation of the statute has occurred, are therefore not relied upon personally to notify the public of the existence of the electioneering prohibition or to indicate the campaign free FoneLs boundary. #he School 8istrict disregarded this statutory notice requirement, and, instead, adopted a method of enforcement more suited to its own convenience. Its method of enforcement provided no notice of either the parameters of the campaign free Fone or the nature of the electioneering prohibition itself. Hothing was used in lieu of the distance markers, nor was any one person assigned (102 the responsibility of monitoring the campaign free Fone for electioneering violations. :oreover, the *66 foot distance from the High School has never been measured, so no School 8istrict employee even knew where the campaign free Fone actually ended. In fact, there is no indication that the School 8istrict had attempted to enforce E 06-*'a prior to the :ay 2, *550 election. ;bsent the posting of distance markers, or the functional equivalent thereof, there was no way for ;ppellee !or anyone else" to identify the *66 foot boundary beyond which electioneering was permitted. #he SuperintendentLs effort to give ;ppellee notice of the boundary consisted of nothing more than a warning that the High School steps were within *66 feet of the polling place. Dnce the Superintendent had confirmed for himself that ;ppellee had violated the electioneering prohibition, he made no attempt either to post notice of the prohibition or to conduct regular inspections of the campaign free Fone. #he two police officers summoned to the High School also failed to advise ;ppellee precisely where the *66 foot line was drawn. Dne police officer merely indicated a spot Iwell outsideJ the *66 foot Fone, and the other escorted ;ppellee to a point safely beyond that Fone. 1ike the Superintendent, the police officers seemed focused only on removing ;ppellee from the campaign free Fone, and not with the importance of notifying the public of the electioneering prohibition so as to avoid similar difficulties with ;ppellee or others in the future. M0N It is true that irrespective of where the *66 foot boundary was located, ;ppellee was well aware that he was inside it when he continued electioneering on the High School steps after speaking with the Superintendent and the police. ;t no time, however, was ;ppellee advised of the precise location of the *66 foot boundary. ;ccordingly, the oral statements did not !and could not" provide adequate notice of the restricted area so as to ustify penaliFing ;ppellee !or anyone else" under E 06-*'a. $$;llowing notice to be conveyed in the manner employed by the School 8istrict would facilitate !i" the curtailment of ;ppelleeLs (irst ;mendment right to express his views to the voters as near to the polling place as the statute permits7 and !ii" the selective enforcement of the prohibition on electioneering. M-NM/N ;ppelleeLs (irst ;mendment interest in staking out his vantage at the *66 foot line was no less compelling than the School 8istrictLs interest in ensuring that he did not cross it. #aking together everything ;ppellee was told by the Superintendent and the police, his only choice was to stand either more than *66 feet away from the polling place or less than *66 feet away. &hat he could not do, however, was exercise his statutorily protected right to stand Bust *66 feet from the polling place. #he School 8istrict effectively prevented ;ppellee from exercising his (irst ;mendment right to the full extent allowed under the statute !and under Burson v! Freeman" ,6/ U.S. *5*, **0 S.3t.

*+/2, **5 1.Gd.0d , !*550"". M,NM2N #he School 8istrictLs method of enforcement also facilitated the arbitrary and discriminatory enforcement of E 06-*'a. #o the degree that the School 8istrict sought to enforce the electioneering prohibition at all, its efforts would appear to have been focused exclusively on the activities of ;ppellee, $$someone with whom the School 8istrict Ihad a past history of personal conflict.J (H0 %y the time the polls had closed, the Superintendent, the %usiness ;dministrator, the 8istrict 3lerk, the )resident of the %oard of Gducation, the ?ice')resident of the %oard of Gducation and one additional member of the %oard of Gducation had all, alone or together, confronted ;ppellee over his electioneering(103 activities. &hen the Superintendent left the High School at /@*, p.m., he told the 8istrict 3lerk specifically that there had been ItroubleJ with ;ppellee over his electioneering, and that she should call the police if there were any further problems. (H0. It may be argued that ;ppellee himself was in a position to know if such selective enforcement actually occurred, and would have offered evidence to that effect. ;s the district court noted, however, Iin a contested election there may have been other people standing within the *66 feet distance and speaking with each other or greeting each other or making comments.J #he School 8istrictLs failure to provide adequate notice of the *66 foot boundary meant that no one !other than ;ppellee" would be warned of the electioneering prohibition and thereby inhibited from discussing the issues and promoting the candidates right up to the polling booths themselves. In fact, the School 8istrictLs ability to document ;ppelleeLs activities is in dramatic contrast to the virtual absence of information about the activities of others. #he School 8istrict cannot establish whether anyone violated the electioneering prohibition prior to -@-6 p.m.'it knows only that ;ppellee did so approximately at that time. (urther, it cannot establish whether anyone other than ;ppellee violated the prohibition after -@-6 p.m.'it has only documented ;ppelleeLs activities. $$#his failure demonstrates that the School 8istrictLs enforcement method is susceptible to discriminatory or arbitrary application. ; government body charged with enforcing a law that seeks to preserve the delicate balance between the exercise of (irst ;mendment rights and the promotion of fair and honest elections should not be permitted to ignore safeguards designed to preserve that balance, and then, at dayLs end, be able to report only on the activities of a single individual with whom bad blood already existed. In short, ;ppellee did not violate E 06-*'a because the School 8istrict did not provide the notice required by that statute.(H- Holding otherwise would infringe upon ;ppelleeLs (irst ;mendment !and statutory" right to electioneer *66 feet from the polling place and make possible the selective enforcement of the prohibition on electioneering. (H-. #his conclusion is buttressed by the fact that no arrests were made by the police and no criminal charges were filed by the 8istrict ;ttorney. III. M.NM+NM5N ;ppellants contend that the district court should have abstained from deciding ;ppelleeLs constitutional claims. #he federal abstention doctrine, first enunciated in Younger v! Harris" /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225 !*5.*", is based on the premise that ordinarily a state proceeding provides an adequate forum for the vindication of federal constitutional rights, ugler v! Helfant" /0* U.S. **., *0/, 5, S.3t. *,0/, *,-6, // 1.Gd.0d *, !*5.," , and so due deference ought to be paid the principles of comity and federalism. Younger" /6* U.S. at //, 5* S.3t. at .,6. Younger abstention applies to state udicial and administrative proceedings, so long as the state court has a means of reviewing constitutional claims. See" e!g!" /hio 1ivil .ights 1ommOn v! #a+ton 1hristian Sch!" Inc!" /.. U.S. 2*5, 20.'05, *62 S.3t. 0.*+, 0.00'0/, 5* 1.Gd.0d ,*0 !*5+2". (H/ (H/. %efore a federal court can abstain under the Younger doctrine, three factors must be present. $$(irst, there must be an ongoing state proceeding. See 1hrist the ing .egional High School v! 1ulvert" +*, (.0d 0*5, 00/ !0d 3ir.", cert! denied" /+/ U.S. +-6, *6+ S.3t. *60, 5+ 1.Gd.0d 2- !*5+.". $$Second an important state interest must be implicated in that proceeding. Id! $$#hird, the federal plaintiff must have an adequate opportunity for udicial review of his constitutional claims during or after the proceeding . Id! In his brief to this court, ;ppellee submitted su$ Budice that the three Younger doctrine factors were present, and so we assume arguendo that, for the purposes of this decision, they are present. (urther, because we believe that

the district court based its determination not to abstain upon the applicability of the Ibad faithJ exception to this case, we confine our affirmance to the district courtLs conclusion. M*6NM**NM*0NM*-N $$Hevertheless, federal courts should still afford in unctive relief to a plaintiff who successfully establishes Ithe kind of irreparable in ury, above and beyond that associated with the defense of a single prosecution brought in good faith, that haMsN always been considered sufficient to ustify federal intervention.J Younger" /6* U.S. at /+, 5* S.3t. at .,0. $$Intervention would still be warranted upon a showing of Ibad faith, harassment or any other exceptional circumstance that would call for equitable relief.J Id! at ,/, 5* S.3t. at .,,. Cenerally, for such a showing to be made, the party bringing the state action must have no reasonable expectation of obtaining a favorable outcome. See ugler" /0* U.S. at *02 n. 2, 5, S.3t. at *,-* n. 2. $$%ut, a refusal to abstain is also ustified where a prosecution or proceeding has been brought to retaliate for or to deter constitutionally protected conduct, or where a prosecution or proceeding is otherwise brought in bad faith or for the purpose to (104 harass. 2!g!" Lewellen v! .aff" +/- (.0d **6-, **65'*6 !+th 3ir.*5++", cert! denied" /+5 U.S. *6--, *65 S.3t. **.*, *6- 1.Gd.0d 005 !*5+5" !bad faith prosecution where brought in retaliation for exercise of (irst ;mendment rights"7 .owe v! *riffin" 2.2 (.0d ,0/ !**th 3ir.*5+0" !bad faith prosecution where brought after assurances of immunity to defendant". M*/NM*,N $$In such cases, a showing of retaliatory or bad faith prosecution establishes irreparable in ury for the purposes of the Younger doctrine, Bishop v! State Bar of Texas" .-2 (.0d 050, 05/ !,th 3ir.*5+/"7 Shaw v! *arrison" /2. (.0d **-, **5'0* !,th 3ir.", cert! denied" /65 U.S. *60/, 5- S.3t. /2., -/ 1.Gd.0d -*. !*5.0", and the expectations for success of the party bringing the action need not be relevant. See" e!g!" Lewellen" +/- (.0d at **65' *6 $$!in unction ustified regardless of expectations where prosecution brought to discourage exercise of constitutional rights". ;bstention would serve no purpose because a state cannot have a legitimate interest in discouraging the exercise of constitutional rights, see" e!g!" id! at ***6, or, equally, in continuing actions otherwise brought in bad faith, thereby reducing the need for deference to state proceedings. M*2N ;lthough the district court did not explicitly address the abstention doctrine in its opinion, $$it found that the disciplinary charges had been brought in Ibad faith.J &e, therefore, assume that the district court concluded that the bad faith exception to the Oounger doctrine was applicable. ;lthough the specific findings in the district courtLs opinion were few in number, they nevertheless provide the basis for the courtLs apparent conclusion that ;ppellants sought 3ullenLs termination, and that the charges that 3ullen violated E 06-*'a were brought in retaliation for the exercise of 3ullenLs (irst ;mendment right to protest the school board elections. ;ppellants, according to the district court, had a Ipast history of personal conflictJ with 3ullen, and their corresponding desire Ito do something aboutJ him rose to the Ilevel of animus.J :ore specifically, the court took note of the Icharges and hearings and imposition of finesJ that preceded the School 8istrictLs attempt to enforce E 06-*'a against 3ullen. &ith respect to this enforcement, the district court found that ;ppellants had pursued ;ppellee in a Istrictly ad hominemJ manner, and the charges themselves, along with the disciplinary proceeding that followed, Iimposed a chilling effectJ on ;ppelleeLs (irst ;mendment rights. )resumably, it was on these findings that <udge %rieant grounded his determination that the bad faith exception to the Younger doctrine applied. ;lthough the exception has been deemed a InarrowJ one, see Huffman v! Pursue" Ltd!" /06 U.S. ,50, 2**, 5, S.3t. *066, *0*0, /- 1.Gd.0d /+0 !*5.," , we do not find the district courtLs determination to be clearly erroneous. See 4ule ,0!a", (ed.4.3iv.). %ecause the State of Hew Oork cannot have a legitimate interest in the disciplinary proceeding, permitting it to continue would not serve the purposes of the Younger doctrine, and so the district courtLs decision not to abstain is affirmed . Le*e//en +. Ra66, 843 -.2d 1103 $8t) C&r.$Ar>.',Apr 04, 1988' %lack attorney petitioned for preliminary in unction of state criminal action against him for attempted witness bribery on basis that prosecution was initiated in part because he was black. #he United States 8istrict 3ourt for the Gastern 8istrict of ;rkansas, Ceorge Howard, <r., <., 2/5 (.Supp. *005, en oined proceeding. ;ppeals were taken. #he 3ourt of ;ppeals, 1ay, 3hief <udge, held that district courtLs factual findings were not clearly erroneous and adequately supported decision to issue preliminary in unction. ;ffirmed in part and reversed in part.

&est Headnotes 011 -edera/ Court" 1702 49

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention *.6%k/5 k. 3riminal 1aw and )rosecutions in Ceneral. :ost 3ited 3ases 8espite concerns underlying Younger abstention principle, in certain cases the duty of federal courts to vindicate and protect federal rights must prevail over policy against federal court interference with state criminal proceedings. 021 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases 4equisite threatened in ury arising from state criminal prosecution which will allow federal court to issue in unction must be more than simply cost, anxiety, and inconvenience of having to defend against single criminal prosecution7 $$however, in ury threatened is both great and immediate when defense of state criminal prosecution will not assure adequate vindication of constitutional rights or prosecution is initiated in bad faith or to harass defendant. 031 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases StateLs Ibad faithJ in bringing criminal prosecution, which will allow defendant to obtain in unction in federal court against the prosecution, generally means that a prosecution has been brought without reasonable expectation of obtaining valid conviction. 041 Court" 10# 508$2.1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!0.*" k. In Ceneral. :ost 3ited 3ases !(ormerly *62k,6+!0"" $$%ad faith and $$harassing state criminal prosecutions which federal court can en oin encompass those prosecutions that are initiated $$to retaliate for or $$discourage the exercise of constitutional rights. 051 <n=un5t&on 212 105$1'

0*0 In unction 0*0II Sub ects of )rotection and 4elief 0*0II!H" :atters 4elating to 3onspiracies or 3riminal ;cts

0*0k*6, 3riminal )rosecutions 0*0k*6,!*" k. In Ceneral. :ost 3ited 3ases Showing that state prosecution was brought in retaliation for or to discourage the exercise of constitutional rights will ustify in unction against state prosecution regardless of whether valid convictions conceivably could be obtained. 0#1 <n=un5t&on 212 138.78

0*0 In unction 0*0I? )reliminary and Interlocutory In unctions 0*0I?!;" Crounds and )roceedings to )rocure 0*0I?!;"- Sub ects of 4elief 0*0k*-+..+ k. 3riminal ;cts, 3onspiracies and )rosecutions. :ost 3ited 3ases <n=un5t&on 212 147

0*0 In unction 0*0I? )reliminary and Interlocutory In unctions 0*0I?!;" Crounds and )roceedings to )rocure 0*0I?!;"/ )roceedings 0*0k*/. k. Gvidence and ;ffidavits. :ost 3ited 3ases 8istrict courtLs findings that state criminal prosecution of black attorney for witness bribery was motivated by prosecutorsL desire to retaliate for and discourage attorneyLs exercise of his (irst ;mendment rights and was initiated in part because attorney was black were not clearly erroneous and adequately supported decision to issue preliminary in unction against state criminal trial, notwithstanding Younger abstention doctrine. U.S.3.;. 3onst.;mend. *. 071 3&"tr&5t and ;ro"e5ut&ng Attorne4" 131 10

*-* 8istrict and )rosecuting ;ttorneys *-*k*6 k. 1iabilities for Dfficial ;cts, Hegligence, or :isconduct. :ost 3ited 3ases State prosecutors en oyed absolute immunity from liability in attorneyLs defamation action in which he claimed that state prosecutors were responsible for release and publication of tape recordings that purportedly established his participation in witness bribery7 prosecutors played tapes for udge in trial in which attorney was representing criminal defendant and that activity was intimately associated with udicial phase of criminal process. 081 3&"tr&5t and ;ro"e5ut&ng Attorne4" 131 10

*-* 8istrict and )rosecuting ;ttorneys *-*k*6 k. 1iabilities for Dfficial ;cts, Hegligence, or :isconduct. :ost 3ited 3ases State prosecutors were entitled to absolute immunity from liability on attorneyLs claim that prosecutors conducted illegal electronic surveillance of him7 activities complained of were part of prosecutorsL familiar and traditional role of reviewing evidence and deciding whether to initiate prosecution. 091 C&+&/ R&g)t" 78 1088$3'

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*6++ )olice, Investigative, or 1aw Gnforcement ;ctivities .+k*6++!-" k. Searches and SeiFures. :ost 3ited 3ases !(ormerly .+k*-0.*, .+k*-0, .+k*-./!0"" Glectronic surveillance of attorney did not violate federal and state communications interception statutes where one of parties to conversations had consented to interception7 accordingly, police officers could not be held liable in civil rights action brought by attorney arising out of interception. *+ U.S.3.;. EE 0,*6'0,06, 0,**!0"!c"7 ;rk.Stats. EE /*'/,6* to /*'/,65 !4epealed".

0101 C&+&/ R&g)t" 78

1088$5'

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*6++ )olice, Investigative, or 1aw Gnforcement ;ctivities .+k*6++!," k. 3riminal )rosecutions. :ost 3ited 3ases !(ormerly .+k*-/, .+k*-./!/"" Con"p&ra54 91 19

5* 3onspiracy 5*I 3ivil 1iability 5*I!%" ;ctions 5*k*5 k. Gvidence. :ost 3ited 3ases %lack attorney, who was sub ect of criminal prosecution for witness bribery, failed to establish that police officers violated civil rights statutes by conspiring to entrap him in frivolous criminal charges and to cover up that conspiracy for the purpose of depriving him of equal protection due to his race. /0 U.S.3.;. EE *5+-, *5+,7 U.S.3.;. 3onst.;mend. */. 1;O, 3hief <udge. ;t issue is the serious question whether the federal district court (H* erred in not exercising Younger (H0 abstention by en oining a criminal prosecution brought by the State of ;rkansas against a black attorney in 1ee 3ounty, ;rkansas. &e affirm the grant of the temporary in unction. &e reverse in part the district courtLs rulings on the section *5+damages claims. (H*. #he Honorable Ceorge Howard, <r., United States 8istrict <udge for the Gastern 8istrict of ;rkansas. (H0. Younger v! Harris" /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225 !*5.*". I. %ackground Dn <une ., *5+/, 4everend ;lmore %anks, a black minister, was charged with rape in the 3ircuit 3ourt of 1ee 3ounty, ;rkansas. $$#he alleged victim was 1atonia &ilbun, the eleven'year'old daughter of :rs. 1afayetta )atterson. (H- :rs. )attersonLs(110# husband, <oe 1ewis )atterson, is the brother of 4ev. %anksLs wife, :argie %anks. #he )attersons are also black. (H-. :rs. )atterson is referred to both as 1afayette and 1afayetta in the record and in the partiesL submissions. 4ev. %anks engaged 4oy 1ewellen, a black attorney, to represent him. :rs. )atterson employed Dlly Heal, also a black attorney, to represent her interest and the interest of her daughter in the criminal prosecution . 1ee 3ounty )rosecutor Cene 4aff and 8eputy )rosecutor 8avid 3ahoon, both white, represented the state in the proceeding. <ury selection in %anksLs trial began on #uesday, September -, *5+,, with <udge Harvey Oates presiding. Dn #hursday, September ,, Heal contacted 8eputy )rosecutor 3ahoon to inform him that :rs. )atterson was being pressured to Idrop the chargesJ against %anks. :rs. )atterson claimed that the pressure was coming from her husband, from 4ev. and :argie %anks, and from 4ev. %anksLs brother, 4obert. :rs. )atterson and others testified about the events that took place that &ednesday that prompted Heal to contact the prosecutor. 4obert %anks came to the )atterson house on &ednesday morning and discussed the pending charges against 4ev. %anks with the )attersons. #he three of them reached an apparent agreement that if :rs. )atterson would drop the charges, 4ev. %anks would leave town. :rs. )atterson, however, claims that she did not then or ever actually intend to drop the charges.

:r. and :rs. )atterson and 4obert %anks then proceeded to HealLs office, apparently to have him prepare a paper documenting their agreement. :argie %anks somehow was informed of or arranged the meeting at HealLs office. She called 1ewellen and informed him that he too should go to HealLs office, because :rs. )atterson was going to drop the charges against 1ewellenLs client. &hen they arrived at HealLs office, :rs. )atterson met privately with Heal. She told him that she in fact had no intention of dropping the charges. Heal relayed this information to those assembled in his office. :r. )atterson became angry, feeling that his wife had been steadily lying to him about dropping the charges. 1ewellen left HealLs office immediately, saying only, according to :rs. )atterson, that he had thought the family was going to resolve it. 1ater that day, after returning home, :r. )atterson phoned :argie %anks and told her that :rs. )atterson was indeed going to drop the charges. :rs. )atterson claims she led her husband to believe this because she was afraid of him and wanted everyone to leave her alone. ;fter a series of phone calls, it was arranged that 1ewellen would bring 4ev. and :argie %anks to the )atterson home. 4obert %anks was also present at this meeting. 1ewellen did not stay at the meeting. #he parties again reached an apparent agreement that :rs. )atterson would drop the charges, 4ev. %anks would leave town, and :rs. )atterson would be reimbursed by the %ankses for the A,66 attorneyLs fee she had incurred by retaining Heal to represent her interests. 1ewellen later returned to pick up his client. He did not wish to hear what had happened at the meeting, stating something to the effect of, Ilook here, if you all are going to settle this, settle it with your family. I donLt want to have anything to do with it. I donLt want to know whatLs going on.J #hese were the events that, when relayed to Heal, prompted him to call 8eputy )rosecutor 3ahoon. 3ahoon then told )rosecutor 4aff and 1ee 3ounty Sheriff 4obert :ay that he had received information suggesting that bribes were being offered to :rs. )atterson by 4ev. %anks to induce her to drop the charges. ;t the direction of the prosecutors, :ay requested investigatory assistance from the ;rkansas state police. :ay informed the state police that electronic surveillance equipment might be needed to conduct the investigation. 1ater that day, Sgt. 8ouglas &illiams of the state police arrived in town to begin assisting in the investigation, bringing with him his electronic surveillance equipment. &illiams, :ay, and 3ahoon met with :rs. )atterson and Heal at the :arianna ail to discuss :rs. )attersonLs complaint. <eanne Kennedy, a victimLs advocate and (1107 child abuse and rape counselor, was also present. :rs. )atterson was equipped with a hidden body microphone and directed to engage in conversation with :r. )atterson and others to corroborate her allegations. ;lthough 4ev. %anks was an investigatory target at this point, 1ewellen was not. :rs. )atterson left the ail, found her husband at a local ball field, and told him that she would agree to drop the charges if 4ev. %anks left town and the parties adhered to their agreement of the day before. She also told him that she wanted a lawyer to draft a document setting forth 4ev. %anksLs agreement to leave town. :rs. )atterson then made a series of phone calls. #he )attersonsL part of these conversations was recorded by Sgt. &illiams, who operated a receiving and recording device in a car parked near the )atterson home. #he tape, referred to as IG'*,J contains at least two and allegedly more gaps in transmission. #hat night the )attersons and the three %ankses met with 1ewellen at 1ewellenLs office. :rs. )atterson was still equipped with a body microphone, and the conversation was recorded.(H/ 1ater that night, the tape was played for )rosecutor 4aff at Sheriff :ayLs home and transcribed at the offices of a private law firm with which 3ahoon was associated. #he prosecutors suggested the need, under the ;rkansas witness bribery statute, (H, for further investigation(1108 to clarify what :rs. )atterson was being induced to do. (H/. #he relevant portion of that tape, identified as IG'0,J contains the following conversation@ %1 M1ewellenN@ $ $ $ 4everend, it is the understanding that you and your wife are going to go somewhere. Is that yaLllLs understandingR ;% M4ev. %anksN@ ILm sticking by my commitment.

%1@ #he commitment is, and what I have heard her say is that what she wants from you, and that thing being gone. I donLt want you moving tomorrow. #hatLs what ILm saying, and because that is going to bring up some bunch of suspicion, okayR &e donLt want that. &e need time. ;%@ &e need time to relocate. %1@ Oou see what I am saying and the word and wait, and it is this. &hat we talk about here will never go any further. #hat is a solemn word on everybodyLs part, okayR ;nd I said that because it is not going to do any one person any good to try to embarrass the other, and it is ust going to raise something else up again, and then we are all in this mess over again, so if yaLll are sincere in what your agreement and you are making, that is fine with me. :% M:argie %anksN@ #hatLs right. It ainLt nobodyLs business. %1@ #here was also some understanding that she feels that there is some reimbursement necessary for attorney fees. #hatLs what your brother advises on the telephone. I think you agree to that7 is that rightR ;%@ #hatLs correct. %1@ Dkay, and that is A,66.66 and she has both of yaLll word. :%@ Uh huh !yes". %1@ #hat is all to be done7 is that rightR Is that right, 4everendR ;%@ #hatLs right. %1@ $ $ $ 1ike I say, yaLll know what your agreement are7 yaLll donLt need me, and that is why ILm telling you that if you are going to work it, work it amongst your family so that is what it will be. #he least that I have involvement in it the better because I swear to Cod, I donLt put nothing past folks, and if they ever felt that I was intimidating anybody or trying to persuade to a witness out or something or do some stuff like that, Cene 4aff'and I am going to be honest with you'that white man and me have mixed up some bad blood these last three days. It has almost gotten down to some plain out cussing. I mean it has been bad, so anything that he could right now at this point to use against me or hurt me, he would do it. It has gotten past a ob to him and gotten personal7 him and 8avid'it has got past that, and anything they could do'#hey would send somebody wired up with tape recorders on them. ILm serious. ILm telling you, you have to watch it. If you donLt believe it, ust ask <immie &ilson, cause ILd always believe they done put folks on him. I donLt want them with me standing in front of a grand ury saying I been over there siminating!R" somebody and all that kind of stuff. #hatLs what they would do. (H,. #he ;rkansas witness bribery statute, ;rk.Stat.;nn. E ,',-'*6+ !*5+.", provides in pertinent part@ !a" ; person commits witness bribery if@ !*" He offers, confers, or agrees to confer any benefit upon a witness or a person he believes may be called as a witness with the purpose of@ !;" Influencing the testimony of that person7 or !%" Inducing that person to avoid legal process, summoning him to testify7 or !3" Inducing that person to absent himself from an official proceeding to which he has been legally summoned $ $ $.

#he next day, Sgt. &illiams took a statement from :rs. )atterson. %ecause of 4affLs suggestion the night before, :rs. )atterson attempted to reach 1ewellen by telephone. &hen they eventually spoke, their phone conversation was recorded. #his tape recording, identified as IG'/,J contained the following statement by 1ewellen@ See, itLs up to you in the sense that if you and your child donLt come up there, then theyLre going to drop it. #hey canLt make you come to no courtroom and testify to nothing. I donLt give a shit if they subpoena you. Oou donLt have to'Oou can go up there and say, II ainLt got nothing to say.J Oou understandR HuhR 4ev. %anksLs rape trial resumed on :onday, September 5. %efore any urors were called, prosecutors 4aff and 3ahoon informed <udge Oates that there was a matter that they were required to bring to his attention. #hey proceeded to place on the record, in closed proceedings, their outline of the witness bribery investigation. :rs. )atterson and Sgt. &illiams testified about the alleged bribery and the investigation. $$1ewellen was not allowed to cross'examine these witnesses, nor did <udge Oates allow 1ewellen to present witnesses in his own or 4ev. %anksLs behalf. 1ewellen was permitted only to make a statement addressing the effect of what had transpired on 4ev. %anksLs rape trial. ;fter a brief recess, <udge Oates sua sponte declared a mistrial. He also stated that he intended to send a transcript of that dayLs proceedings to the ;rkansas Supreme 3ourt 3ommittee on )rofessional 3onduct. Dn September 0., Sheriff :ay executed an affidavit in support of an information charging 1ewellen and 4ev. %anks with witness bribery and conspiracy to commit witness bribery. #hat same day, the prosecutors presented the information to :unicipal <udge 8an (elton, III. 1ewellenLs case was placed on the 1ee 3ounty 3ircuit 3ourt criminal docket and set for trial for (ebruary ., *5+2. Upon 1ewellenLs motion, his trial was continued to :ay *5, *5+2. Dn ;pril 0+, *5+2, 1ewellen brought suit in federal court against )rosecutors 4aff and 3ahoon, Sheriff :ay, Sgt. &illiams, 1ee 3ounty, 1afayetta )atterson, and <eanne Kennedy. 1ewellen later added as a defendant <udge Henry &ilkinson, who was due to preside over 1ewellenLs criminal trial in 1ee 3ounty 3ircuit 3ourt. 1ewellen sought damages and in unctive and declaratory relief (H2 under /0 U.S.3. EE *5+*, *5+-, *5+,, *5+2, and *5++ for alleged violations of his rights under the first, fourth, fifth, thirteenth, and fourteenth amendments. He also asserted pendent state law claims. #he gist of 1ewellenLs complaint was that the defendants conspired to and did investigate and prosecute him because of his race and to retaliate against him for exercising his constitutional rights. (H2. 1ewellen sought only declaratory and in unctive relief against <udge &ilkinson. ;fter a number of continuances, 1ewellenLs state criminal trial was finally scheduled for Hovember *., *5+2. Dn Dctober 0., *5+2, 1ewellen moved the federal court for a temporary restraining order to en oin the prosecutors and <udge &ilkinson from going forward with the state criminal trial. #he district court granted this motion on Hovember */ and set a hearing on 1ewellenLs motion for a preliminary in unction. (ollowing a six'and'one'half'day hearing, the district court issued a preliminary in unction barring the state officials from proceeding with 1ewellenLs criminal trial pending ad udication of 1ewellenLs federal court action on the merits. Lewellen v! .aff" 2/5 (.Supp. *005 !G.8.;rk.*5+2" . Dne week later, on 8ecember *,, *5+2, the district court ruled on a number of other motions7 these orders, from which various parties appeal, are discussed in succeeding sections.

*ity officials had acted in !ad faith !y filing against plaintiff owners and cler"s of newsstands and !oo"stores ore than $&& prosecutions under the stateHs antio!scenity law, of which appro-i ately 9& were still pending despite ac+uittals in the first $$ cases. 4rah v. 5raha , *.A.9th, $9%2, '7$ 6.2d %&3. A finding of !ad faith in a !attery prosecution of a !lac" for a slight and technical touching of a white child was colored

significantly !y the history of race relations in @la+ue ines @arish, Aouisiana, in which the prosecution occurred. Duncan v. @ere1, *.A.=th, $9%$, ''= 6.2d ==%, certiorari denied 92 ).*t. 282, '&' (.). 9'&, 3& A.Cd.2d 2=' :ounger a!stention was not warranted in civil.rights action see"ing in#unction against prosecution of cri inal.assault indict ents returned !y grand #ury in response to evidence allegedly presented !y )tateHs Attorney in !ad faith in order to harass and retaliate against the present plaintiffs for e-ercising constitutional rights to initiate civil.rights action against e ployees of state Depart ent of *orrections, despite assertedly conclusory nature of plaintiffsH allegations. *ooper v. *asey, D.*.,ll.$993, 83% 6.)upp. 938. Assu ing that cri inal case was /pending0 against cri inal defense attorney in state court for allegedly hindering undercover officer, and that :ounger doctrine applied to attorneyHs 2 $983 suit see"ing to en#oin his indict ent, attorney esta!lished that decision to prosecute hi was otivated !y !ad faith, !ringing case within e-ception to :oungerG attorneyHs identification of undercover agent !y her true na e in course of his representation of client was protected conduct under the 6irst A end ent, and decision to prosecute hi was otivated at least in part !y district attorneyHs desire to retaliate. >estin v. ?cDaniel, D.*.5a.$99$, %7& 6.)upp. $=73, affir ed *.A.$$th, $99$, 9'9 6.2d $$73
;merican <urisprudence, Second Gdition 8atabase updated Hovember 06*6 (ederal 3ourts <ohn %ourdeau, <.8.7 1aura Hunter 8ietF, <.8.7 Kerry 8iggin, <.8.7 4omualdo ). Gclavea, <.8.7 #racy %ateman (arrell, <.8.7 ;lan <. <acobs, <.8.7 4achel :. Kane, :.;., <.8.7 (ern Kletter, <.8.7 Son a 1arsen, <.8.7 1ucas :artin, <.8.7 <effrey <. Shampo, <.8.7 Gric 3. Surette, <.8.7 %arbara ?an ;rsdale, <.8.7 :ary Gllen &est, <.8.7 and Gleanor 1. Crossman, <.8.7 :ary %abb :orris, <.8.7 and <aqualin (riend )eterson, <.8. of the Hational 1egal 4esearch Croup, Inc. PI?. 8istrict 3ourts G. ;bstention7 4eference of Issues to State 3ourts ,. ;bstention to ;void Interference with State 1aw Gnforcement b. (actors ;ffecting ;pplicability #opic Summary 3orrelation #able 4eferences J 108#. ReMu&re!ent o6 pend&ng "tate pro5eed&ng 9e"tP" Ae4 u!8er 3&ge"t &estLs Key Humber 8igest, (ederal 3ourts /0, /-, /2, /5, ,6

Under the Oounger abstention doctrine, a federal court is not compelled to abstain in every situation when the federal issue is already before a state tribunal.M*N However, as a general ruleSsub ect to exceptions discussed below Sthe Oounger abstention doctrine does not apply where the federal court suit is commenced before the state proceeding is begun.M0N #his is because principles of comity and federalism do not require that a federal court

abandon urisdiction it has properly acquired simply because a similar suit is later filed in state court.M-N #he mere existence of a pending state proceeding between the parties that parallels the facts of the federal action is not in itself sufficient to warrant Oounger abstention by a federal court.M/N ;n identity of legal issues is not a sufficient predicate to compel abstention where a plaintiff challenges a different law.M,N &hen no state criminal proceedings are pending, Oounger abstention doctrine does not apply.M2N ;lthough the Supreme 3ourt has extended Oounger abstention to the civil context, it has never applied the notions of comity and federalism expressed in Oounger when no state proceeding was pending nor any assertion of important state interests made.M.N ;bsent any pending proceedings in state tribunals, application of Oounger abstention is clearly erroneous.M+N #his does not mean, however, that a litigant in a state administrative proceeding may forgo state'court udicial review of the agencyLs decision in order to apply for federal relief.M5N #hus, the state proceeding is still pending even though the state administrative process has become final as a result of the federal claimantLs failure to pursue udicial review in state court.M*6N (urther, Oounger abstention does not apply, despite a pending state court proceeding, where federal issues were not raised in the state proceeding.M**N M(H2N ;busaid v. Hillsborough 3ounty %d. of 3ounty 3omLrs, /6, (.-d *05+ !**th 3ir. 066,". M(H.N ;nkenbrandt v. 4ichards, ,6/ U.S. 2+5, **0 S. 3t. 0062, **5 1. Gd. 0d /2+ !*550" !tort action by ex'wife against ex'husband for damages resulting from abuse of coupleLs children by ex'husband"7 :cIntyre v. :cIntyre, ..* (.0d *-*2 !5th 3ir. *5+," !tort action by ex'husband against ex'wife and members of ex'wifeLs family for interference with visitation rights". M(H+N ;nkenbrandt v. 4ichards, ,6/ U.S. 2+5, **0 S. 3t. 0062, **5 1. Gd. 0d /2+ !*550". M(H5N DLHeill v. 3ity of )hiladelphia, -0 (.-d .+, !-d 3ir. *55/"7 ;lleghany 3orp. v. )omeroy, +5+ (.0d *-*/ !+th 3ir. *556". M(H*6N DLHeill v. 3ity of )hiladelphia, -0 (.-d .+, !-d 3ir. *55/"7 ;lleghany 3orp. v. )omeroy, +5+ (.0d *-*/ !+th 3ir. *556". M(H**N Oang v. #sui, /*2 (.-d *55 !-d 3ir. 066,", cert. denied, *02 S. 3t. */*5, *2/ 1. Gd. 0d **2 !U.S. 0662" An>en8randt +. R&5)ard", 504 U.S. #89, 112 S.Ct. 220#, 119 L.Ed.2d 4#8, #0 USL9 4532 $U.S.La. .un 15, 1992' :other brought action on behalf of her children against father, who was her former husband, and his female companion alleging physical and sexual abuse of children. #he United States 8istrict 3ourt for the Gastern 8istrict of 1ouisiana dismissed suit and appeal was taken. #he (ifth 3ircuit 3ourt of ;ppeals affirmed, 5-/ (.0d *020. #he Supreme 3ourt granted certiorari and <ustice &hite held that@ !*" domestic relations exception to federal urisdiction did not bar suit, and $$!0" neither Younger nor Burford abstention was appropriate. 4eversed and remanded. <ustice %lackmun filed opinion concurring in the udgment. <ustice Stevens filed opinion concurring in the udgment, in which <ustice #homas oined. &est Headnotes 011 -edera/ Court" 1702 8

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!;" In Ceneral

*.6%k+ k. 8omestic 4elations. :ost 3ited 3ases 8omestic relations exception divests federal courts of power to issue divorce, alimony and child custody decrees. 021 -edera/ Court" 1702 8

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!;" In Ceneral *.6%k+ k. 8omestic 4elations. :ost 3ited 3ases 3onstitution does not exclude domestic relations cases from urisdiction otherwise granted by statute to federal courts7 rather, domestic relations exception exists as matter of statutory construction. U.S.3.;. 3onst. ;rt. -, E * et seq. 031 -edera/ Court" 1702 8

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!;" In Ceneral *.6%k+ k. 8omestic 4elations. :ost 3ited 3ases 8omestic relations exception did not bar district court from exercising sub ect'matter urisdiction over tort suit brought on behalf of children by their mother against childrenLs father, who was also motherLs former husband, and his female companion alleging sexual and physical abuse of children. 041 -edera/ Court" 1702 41

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/* k. Hature and Crounds in Ceneral. :ost 3ited 3ases ;bstention rarely should be invoked, because federal courts have virtually unflagging obligation to exercise urisdiction given them. 051 -edera/ Court" 1702 47.1

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention *.6%k/..* k. In Ceneral. :ost 3ited 3ases !(ormerly *.6%k/." Younger abstention was inappropriate in motherLs tort action against her former husband alleging physical and sexual abuse of their children, inasmuch as there was no allegation of any pending state proceedings. 0#1 -edera/ Court" 1702 47.1

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention *.6%k/..* k. In Ceneral. :ost 3ited 3ases !(ormerly *.6%k/." Burford abstention was inappropriate in motherLs tort action against her former husband alleging physical and sexual abuse of their children where status of domestic relationship had been determined as matter of state law and, in any event, status had no bearing on underlying torts alleged.

((2207 S+lla$us(H$ (H$ #he syllabus constitutes no part of the opinion of the 3ourt but has been prepared by the 4eporter of 8ecisions for the convenience of the reader. See (nited States v! #etroit Lum$er 1o!" 066 U.S. -0*, --., 02 S.3t. 0+0, 0+., ,6 1.Gd. /55. )etitioner brought this suit on behalf of her daughters in the 8istrict 3ourt, alleging federal urisdiction based on the diversity'of'citiFenship provision of 0+ U.S.3. E *--0, and seeking monetary damages for alleged torts committed against the girls by their father and his female companion, the respondents here. #he court granted respondentsL motion to dismiss without pre udice, ruling in the alternative that it lacked urisdiction because the case fell within the Idomestic relationsJ exception to diversity urisdiction and that its decision to dismiss was ustified under the abstention principles announced in Younger v! Harris" /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225. #he 3ourt of ;ppeals affirmed. Held) *. ; domestic relations exception to federal diversity urisdiction exists as a matter of statutory construction. )p. 0065'00*-. !a" #he exception stems from Bar$er v! Bar$er" 0* How. ,+0, ,+/, *2 1.Gd. 002, in which the 3ourt announced in dicta, without citation of authority or discussion of foundation, that federal courts have no urisdiction over suits for divorce or the allowance of alimony. #he lower federal courts have ever since recogniFed a limitation on their urisdiction based on that statement, and this 3ourt is unwilling to cast aside an understood rule that has existed for nearly a century and a half. )p. 0065'00*6. !b" ;n examination of ;rticle III, E 0, of the 3onstitution and of Bar$er and its progeny makes clear that the 3onstitution does not mandate the exclusion of domestic relations cases from federal'court urisdiction . 4ather, the origins of the exception lie in the statutory requirements for diversity urisdiction. #e la .ama v! #e la .ama" 06* U.S. -6-, -6., 02 S.3t. /+,, /+2, ,6 1.Gd. .2,. )p. 00*6'00**. !c" #hat the domestic relations exception exists is demonstrated by the inclusion of the defining phrase, Iall suits of a civil nature at common law or in equity,J in the pre'*5/+ versions of the diversity statute, by Bar$erLs implicit interpretation of that phrase to exclude divorce and alimony actions, and by 3ongressL silent acceptance of this construction for nearly a century. 3onsiderations of stare decisis have particular ((2208 strength in this context, where the legislative power is implicated, and 3ongress remains free to alter what this 3ourt has done. (#90Patterson v! 'cLean 1redit (nion" /5* U.S. *2/, *.0'*.-, *65 S.3t. 0-2-, 0-.6'0-.*, *6, 1.Gd.0d *-0. (urthermore, it may be presumed that 3ongress amended the diversity statute in *5/+ to replace the lawTequity distinction with E *--0Ls Iall civil actionsJ phrase with full cogniFance of the 3ourtLs longstanding interpretation of the prior statutes, and that, absent any indication of an intent to the contrary, 3ongress adopted that interpretation in reenacting the statute. )p. 00*0'00*-. 0. #he domestic relations exception does not permit a district court to refuse to exercise diversity urisdiction over a tort action for damages. #he exception, as articulated by this 3ourt since Bar$er" encompasses only cases involving the issuance of a divorce, alimony, or child custody decree. ;s so limited, the exceptionLs validity must be reaffirmed, given the long passage of time without any expression of congressional dissatisfaction and sound policy considerations of udicial economy and expertise. %ecause this lawsuit in no way seeks a divorce, alimony, or child custody decree, the 3ourt of ;ppeals erred by affirming the 8istrict 3ourtLs invocation of the domestic relations exception. (ederal sub ect'matter urisdiction pursuant to E *--0 is proper in this case. )p. 00*-'00*,. -. #he 8istrict 3ourt erred in abstaining from exercising urisdiction under the Younger doctrine. $$;lthough this 3ourt has extended Younger abstention to the civil context, it has never applied the notions of comity so critical to Younger where, as here, no proceeding was pending in state tribunals. Similarly, while it is not inconceivable that in certain circumstances the abstention principles developed in Burford v! Sun /il 1o!" -*5 U.S. -*,, 2- S.3t. *65+, +. 1.Gd. */0/, might be relevant in a case involving elements of the domestic relationship even when the parties do not seek divorce, alimony, or child custody, such abstention is inappropriate here, where the status of the domestic

relationship has been determined as a matter of state law, and in any event has no bearing on the underlying torts alleged. )p. 00*,'00*2. #his case presents the issue whether the federal courts have urisdiction or should abstain in a case involving alleged torts committed by the former husband of petitioner and his female companion against petitionerLs children, when the sole basis for federal urisdiction is the diversity'of'citiFenship provision of 0+ U.S.3. E *--0. I )etitioner 3arol ;nkenbrandt, a citiFen of :issouri, brought this lawsuit on September 02, *5+5, on behalf of her daughters 1.4. and S.4. against respondents <on ;. 4ichards and 8ebra Kesler, citiFens of 1ouisiana, in the United States 8istrict 3ourt for the Gastern 8istrict of 1ouisiana. ;lleging federal urisdiction based on the diversity'of' citiFenship provision of E *--0, ;nkenbrandtLs complaint sought monetary damages for alleged sexual and physical abuse of the children committed by 4ichards and Kesler. 4ichards is the divorced father of the children ((2209 and Kesler his female companion. (H* Dn 8ecember *6, *556, the 8istrict 3ourt granted respondentsL motion to dismiss this lawsuit. (#92 3iting In re Burrus" *-2 U.S. ,+2, ,5-',5/, *6 S.3t. +,6, +,-, -/ 1.Gd. ,66 !*+56" , for the proposition that IMtNhe whole sub ect of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States,J the court concluded that this case fell within what has become known as the Idomestic relationsJ exception to diversity urisdiction, and that it lacked urisdiction over the case. #he court also invoked the abstention principles announced in Younger v! Harris" /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225 !*5.*", to ustify its decision to dismiss the complaint without pre udice. Ho. +5'/0//, *556 &1 0**,/, !G8 1a., 8ec. *6, *556". #he 3ourt of ;ppeals affirmed in an unpublished opinion. Ho. 5*'-6-. !3;,, :ay -*, *55*", udgt. order reported at 5-/ (.0d *020. (H*. ;nkenbrandt represents that in the month prior to the filing of this federal'court action, on ;ugust 5, *5+5, a uvenile court in <efferson )arish, 1ouisiana, entered a udgment under the StateLs child protection laws, 1a.4ev.Stat.;nn. E *-@*266 et seH! !&est *5+-", repealed, *55* 1a.;cts, Ho. 0-,, E *., eff. <an. *, *550, and superseded by 1ouisiana 3hildrenLs 3ode, #itle P, ;rt. *66* et seH! !*55*", permanently terminating all of 4ichardsL parental rights because of the alleged abuse and permanently en oining him from any contact with the children. Heither the 8istrict 3ourt nor the 3ourt of ;ppeals found it necessary to pass on the accuracy of this representation in resolving the issues presented7 nor do we. &e granted certiorari limited to the following questions@ I!*" Is there a domestic relations exception to federal urisdictionR !0" If so, does it permit a district court to abstain from exercising diversity urisdiction over a tort action for damagesRJ (H0 and $$I!-" 8id the 8istrict 3ourt in this case err in abstaining from exercising urisdiction under the doctrine (#93 of Younger v! HarrisP; ,60 U.S. *60-, **0 S.3t. +,,, **2 1.Gd.0d .2/ !*550". &e address each of these issues in turn.

At p. %&',

&e now address whether, even though sub ect'matter urisdiction might be proper, sufficient grounds exist to warrant abstention from the exercise of that urisdiction. (H.. #he courts below offered no explanation, and we are aware of none, why the domestic relations exception applies at all to respondent Kesler, who would appear to stand in the same position with respect to ;nkenbrandt as any other opponent in a tort suit brought in federal court pursuant to diversity urisdiction. I? M/N #he 3ourt of ;ppeals, as did the 8istrict 3ourt, stated abstention as an alternative ground for its holding. #he 8istrict 3ourt quoted another federal court to the effect that I =MaNbstention, that doctrine designed to promote federal'state comity, is required when to render a decision would (705 disrupt the establishment of a coherent state policy.> J ;pp. to )et. for 3ert. ;'2 !quoting Qau$i v! HoeBme" ,-6 (.Supp. +-*, +-2 !&8 )a. *5+6"". It is axiomatic, however, that IMaNbstention from the exercise of federal urisdiction is the exception, not the rule.J 1olorado .iver -ater 1onservation #ist! v! (nited States" /0/ U.S. +66, +*-, 52 S.3t. *0-2, *0//, /. 1.Gd.0d /+-

!*5.2". ;bstention rarely should be invoked, because the federal courts have a Ivirtually unflagging obligation ... to exercise the urisdiction given them.J Id!" at +*., 52 S.3t., at *0/2. M,N #he courts below cited ((221#Younger v! Harris" /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225 !*5.*" , to support their holdings to abstain in this case. In so doing, the courts clearly erred. Younger itself held that, absent unusual circumstances, a federal court could not interfere with a pending state criminal prosecution. Id!" at ,/, 5* S.3t., at .,,. #hough we have extended Younger abstention to the civil context, see, e!g!" 'iddlesex 1ount+ 2thics 1omm! v! *arden State Bar &ssn!" /,. U.S. /0-, *60 S.3t. 0,*,, .- 1.Gd.0d **2 !*5+0"7 /hio 1ivil .ights 1ommOn v! #a+ton 1hristian Schools" Inc!" /.. U.S. 2*5, *62 S.3t. 0.*+, 5* 1.Gd.0d ,*0 !*5+2"7 Penn,oil 1o! v! Texaco Inc!" /+* U.S. *, *6. S.3t. *,*5, 5, 1.Gd.0d * !*5+.", we have never applied the notions of comity so critical to YoungerL s IDur (ederalismJ when no state proceeding was pending $$nor any assertion of important state interests made. In this case, there is no allegation by respondents of any pending state proceedings, and ;nkenbrandt contends that such proceedings ended prior to her filing this lawsuit. ;bsent any pending proceeding in state tribunals, therefore, application by the lower courts of Younger abstention was clearly erroneous. M2N It is not inconceivable, however, that in certain circumstances, the abstention principles developed in Burford v! Sun /il 1o!" -*5 U.S. -*,, 2- S.3t. *65+, +. 1.Gd. */0/ !*5/-" , might be relevant in a case involving elements of the domestic relationship even when the parties do not seek divorce, alimony, or child custody. #his would be so when a case presents Idifficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case (70# then at bar.J 1olorado .iver -ater 1onservation #ist!" supra" /0/ U.S., at +*/, 52 S.3t., at *0//. Such might well be the case if a federal suit were filed prior to effectuation of a divorce, alimony, or child custody decree, and the suit depended on a determination of the status of the parties. &here, as here, the status of the domestic relationship has been determined as a matter of state law, and in any event has no bearing on the underlying torts alleged, we have no difficulty concluding that Burford abstention is inappropriate in this case.(H+ (H+. :oreover, should Burford abstention be relevant in other circumstances, it may be appropriate for the court to retain urisdiction to ensure prompt and ust disposition of the matter upon the determination by the state court of the relevant issue. 3f. aiser Steel 1orp! v! -!S! .anch 1o!" -5* U.S. ,5-, ,5/, ++ S.3t. *.,-, *.,/, 06 1.Gd.0d +-, !*52+". #hough he acknowledges that our earlier cases invoking the domestic relations exceptions speak in urisdictional terms, <ustice %1;3K:UH nevertheless would reinterpret them to support a special abstention doctrine for such cases. See post" at 0006'000* !opinion concurring in udgment". Oet in briefly sketching his vision of how such a doctrine might operate, <ustice %1;3K:UH offers no authoritative support for where such an abstention doctrine might be found, no principled reason why we should retroactively concoct an abstention doctrine out of whole cloth to account for federal court practice in existence for +0 years prior to the announcement of the first abstention doctrine in .ailroad 1ommOn of Texas v! Pullman 1o!" -*0 U.S. /52, 2* S.3t. 2/-, +, 1.Gd. 5.* !*5/*", and no persuasive reason why articulation of such an abstention doctrine offers a sounder way of achieving the same result than our construction of the statute. ? &e thus conclude that the 3ourt of ;ppeals erred by affirming the 8istrict 3ourtLs rulings to decline urisdiction based on the domestic relations exception to diversity urisdiction and to abstain under the doctrine of Younger v! Harris" supra! #he exception has no place in a suit such as this one, in which a former spouse sues another on behalf of children alleged to have been abused. %ecause the allegations in this complaint do not request the 8istrict 3ourt to issue a divorce, alimony, or child custody decree, we hold that the (707 suit is appropriate for the exercise of E *--0 urisdiction given the existence of diverse citiFenship between petitioner and respondents and the pleading of the relevant amount in controversy. ;ccordingly, we reverse the decision of the 3ourt of ((2217 ;ppeals and remand the case for further proceedings consistent with this opinion. It is so ordered! <ustice %1;3K:UH, concurring in the udgment.

I agree with the 3ourt that the 8istrict 3ourt had urisdiction over petitionerLs claims in tort. :oreover, I agree that the federal courts should not entertain claims for divorce, alimony, and child custody. I am unable to agree, however, that the diversity statute contains any IexceptionJ for domestic relations matters. #he 3ourt goes to remarkable lengths to craft an exception that is simply not in the statute and is not supported by the case law. In my view, the longstanding, unbroken practice of the federal courts in refusing to hear domestic relations cases is precedent at most for continued discretionary abstention rather than mandatory limits on federal urisdiction. (or these reasons I concur only in the 3ourtLs udgment. ;enn?o&/ Co. +. :exa5o, <n5., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1, 55 USL9 4457 $U.S. .Y.,Apr 0#, 1987' <udgment debtor brought action to challenge #exas court udgment in excess of ** billion dollars and to challenge constitutionality of application of #exas udgment lien and appeal bond provisions requiring bond in excess of *billion dollars. #he United States 8istrict 3ourt for the Southern 8istrict of Hew Oork, 202 (.Supp. 0,6, %rieant, <., preliminarily en oined attempts to enforce udgment or to obtain lien. <udgment creditor appealed. #he 3ourt of ;ppeals, .+/ (.0d **--, affirmed in part and reversed in part. ;ppeal was taken, and probable urisdiction was noted. #he Supreme 3ourt, )owell, <., held that Younger abstention required district court to abstain from hearing constitutional claims, where udgment debtor did not present those claims to #exas courts, and where it was impossible to be certain that governing #exas statutes and procedural rules actually raised those claims. 4eversed. Scalia, <., filed concurring opinion, in which DL3onnor, <., oined. %rennan, <., filed opinion concurring in udgment, in which :arshall, <., oined. :arshall and %lackmun, <<., filed opinions concurring in udgment. Stevens, <., filed opinion concurring in udgment, in which :arshall, <., oined. &est Headnotes 011 -edera/ Court" 1702 42

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/0 k. (ederal'state relations in general. :ost 3ited 3ases IIYounger abstention doctrine is applicable in pending civil proceedings , if stateLs interests in proceeding are so important that exercise of federal udicial power would disregard comity between states and national government. 021 -edera/ Court" 1702 41

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/* k. Hature and grounds in general. :ost 3ited 3ases )robability that federal ad udication would be effectively advisory ustifies abstention, even if there are no pending state proceedings in which question can be raised. 031 -edera/ Court" 1702 41

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine

*.6%k/* k. Hature and grounds in general. :ost 3ited 3ases 3onsiderations similar to those that mandate Pullman abstention are relevant to courtLs decision whether to abstain under Younger doctrine. 041 -edera/ Court" 1702 47.1

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention *.6%k/..* k. In general. :ost 3ited 3ases !(ormerly *.6%k/." Younger abstention doctrine required district court to abstain from hearing udgment debtorLs claims that #exas appeal bond and udgment lien provisions violated federal due process and equal protection clauses, where debtor chose not to present constitutional claims to #exas courts, where it was impossible to be certain that governing #exas statutes and procedural rules actually raised constitutional claims, and where #exas 3onstitution contained open'courts provision that apparently addressed debtorLs claims more specifically. ?.#.3.;., )roperty 3ode EE ,0.66*',0.6627 ?ernonLs ;nn.#exas 4ules 3iv.)roc., 4ules */c, -05b!c"7 4ules -2/!a, b", -2+ !4epealed"7 ?ernonLs ;nn.#exas 3onst. ;rt. *, E *-7 U.S.3.;. 3onst.;mend. */. 051 -edera/ Court" 1702 47.1

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention *.6%k/..* k. In general. :ost 3ited 3ases !(ormerly *.6%k/." #exasL interest in forcing persons to transfer property in response to courtLs civil udgment was important interest for purpose of Younger abstention doctrine that required district court to abstain from interfering with enforcement of #exas udgment. 0#1 -edera/ Court" 1702 #5

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k2, k. )rocedure as to abstention7 reserving or retaining urisdiction. :ost 3ited 3ases &hen litigant has not attempted to present federal claims in related state court proceedings, federal court should assume that state procedures will afford adequate remedy, in absence of unambiguous authority to contrary. U.S.3.;. 3onst. ;rt. /, E *. 071 -edera/ Court" 1702 47.1

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention *.6%k/..* k. In general. :ost 3ited 3ases !(ormerly *.6%k/." <udgment debtor failed to meet burden that #exas law barred opportunity to present $$federal due process and $$equal protection challenges to #exas appeal bond and udgment lien provisions and failed to establish inapplicability of Younger abstention doctrine, where #exas 3onstitution had open'courts provision. ?.#.3.;., )roperty 3ode EE ,0.66*',0.6627 ?ernonLs ;nn.#exas 4ules 3iv.)roc., 4ules */c, -05b!c"7 4ules -2/!a, b", -2+ !4epealed"7 ?ernonLs ;nn.#exas 3onst. ;rt. *, E *-7 U.S.3.;. 3onst. ;rt. /, E *7 ;mend. */.

081 -edera/ Court" 1702

41

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/* k. Hature and grounds in general. :ost 3ited 3ases <udgment debtor could not escape Younger abstention by failing to assert state remedies in timely manner.

Ad&8& +. Ca/&6orn&a State 2oard o6 ;)ar!a54, 4#1 -.Supp.2d 1103 $ .3.Ca/., o+ 09, 200#' 2a5>groundC )harmacist brought civil rights suit against state officials and state pharmacy board, alleging that attempts to revoke his pharmacistLs license and wholesaler permit violated his constitutional rights. )arties filed cross'motions for summary udgment. @o/d&ng"C #he 8istrict 3ourt, 3hen, United States :agistrate <udge, held that@ !*" stipulation and order of state pharmacy board that any suspension or revocation of pharmacistLs license would be stayed at least -6 days gave pharmacist adequate opportunity to litigate his federal claims in state venue, as required to satisfy third prong for Younger abstention, and !0" stipulation did not come to late after filing of civil rights suit to satisfy third prong. :otions granted in part and denied in part. &est Headnotes 011 -edera/ Court" 1702 41

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/* k. Hature and Crounds in Ceneral. :ost 3ited 3ases -edera/ Court" 1702 4#

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/2 k. 3onstitutional and (ederal Buestions, ;bstention. :ost 3ited 3ases Under the Younger doctrine, abstention in favor of state udicial proceedings is required if the state proceedings !*" are ongoing, !0" implicate important state interests, and !-" provide the plaintiff an adequate opportunity to litigate federal claims. 021 -edera/ Court" 1702 4#

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/2 k. 3onstitutional and (ederal Buestions, ;bstention. :ost 3ited 3ases In order for there to be an adequate opportunity to litigate federal claims, as required element for Younger abstention in favor of state proceedings " the plaintiff must have an opportunity to have the federal claim considered on the merits by the state tribunal before the adverse administrative action takes effect. %. Younger &$stention

#he preliminary issue that must be addressed is whether Younger abstention is applicable, as argued by 8efendants. If so, then the 3ourt cannot reach the merits of the partiesL arguments as to whether )laintiffsL rights have been violated. M*NM0N Under the Younger doctrine, Iabstention in favor of state udicial proceedings is required if the state proceedings !*" are ongoing, !0" implicate important state interests, and !-" provide the plaintiff an adequate opportunity to litigate federal claims.J Hirsh v! 5ustices of the Supreme 1ourt" 2. (.-d .6+, .*0 !5th 3ir.*55," !citing 'iddlesex 1ount+ 2thics 1omm! v! *arden State Bar &ssOn" /,. U.S. /0-, /-0, *60 S.3t. 0,*,, .- 1.Gd.0d **2 !*5+0"". ;s noted above, 8efendants argued in their motion to dismiss that Younger abstention was applicable but the 3ourt disagreed. #he 3ourt concluded that, although the first two prongs of the test above had been satisfied, the third had not. %ased on Hinth 3ircuit case law, in order for there to be an adequate opportunity to litigate federal claims, Ithe plaintiff must have an opportunity to have the federal claim considered on the merits by the state tribunal $efore the adverse administrative action takes effect .J Drder of *6T.T6,, at *, !emphasis in original". Under 3alifornia Covernment 3ode E **,*5, the %oard could immediatel+ revoke or suspend )laintiffsL license and permit. See 3al. Cov.3ode E **,*5!a" !I#he decision Mof the administrative agencyN shall become effective -6 days after it is delivered or mailed to respondent unless@ a reconsideration is ordered within that time, or the agency itself orders that the decision shall become effective sooner, or a stay of execution is granted.J". #he circumstances in enneall+ v! Lungren" 52. (.0d -05 !5th 3ir.*550", were different because there the state medical board stipulated that it would stay the revocation of the plaintiffLs physicianLs license for thirty days. See id! at --0. .onat)an C/u8 +. C&t4 o6 Lo" Ange/e", #80 -.Supp. 1405 $C.3.Ca/.,%ar 01, 1988' )rivate club brought action to en oin enforcement of cityLs antidiscrimination ordinance. Dn cityLs motion to abstain, and plaintiffLs motion to stay resolution of the abstention motion, the 8istrict 3ourt, 3urtis, <., held that@ !*" court would not stay decision on the motion pending outcome of United States Supreme 3ourt case dealing with similar issues on the merits, and !0" abstention was not required where plaintiff sought only to en oin enforcement of the ordinance and did not seek to en oin state court proceeding against it. :otions denied. &est Headnotes 011 A5t&on 13 #9$1'

*- ;ction *-I? 3ommencement, )rosecution, and #ermination *-k2. Stay of )roceedings *-k25 ;nother ;ction )ending *-k25!*" k. In Ceneral. :ost 3ited 3ases 3ourt would not stay resolution of abstention motion pending outcome of case before United States Supreme 3ourt which dealt with similar issues on the merits where there was no reason to believe that resolution of that case would be of any assistance with respect to the motion for abstention. 021 A5t&on 13 #8

*- ;ction *-I? 3ommencement, )rosecution, and #ermination *-k2. Stay of )roceedings *-k2+ k. In Ceneral. :ost 3ited 3ases ;bsent any showing that interests of udicial economy and fairness would otherwise be served, stay is unwarranted. 031 -edera/ Court" 1702 #5

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral

*.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k2, k. )rocedure as to ;bstention7 4eserving or 4etaining <urisdiction. :ost 3ited 3ases Younger abstention is properly raised in a motion to dismiss for failure to state a claim upon relief can be granted. (ed.4ules 3iv.)roc.4ule *0!b"!2", 0+ U.S.3.;. 041 -edera/ Court" 1702 4#

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/2 k. 3onstitutional and (ederal Buestions, ;bstention. :ost 3ited 3ases &here Younger abstention is applicable, abstention is required if there are pending $$state udicial proceedings, $$state proceedings implicate important state interests, and state proceedings provide an adequate opportunity to raise federal questions. 051 -edera/ Court" 1702 5#

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention *.6%k,2 k. :unicipal 3orporations and Drdinances7 Qoning. :ost 3ited 3ases 4equest for in unctive relief against cityLs enforcement of ordinance did not mandate application of abstention where there was no request to en oin state proceedings. 0#1 -edera/ Court" 1702 5#

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/. )articular 3ases and Sub ects, ;bstention *.6%k,2 k. :unicipal 3orporations and Drdinances7 Qoning. :ost 3ited 3ases Younger abstention did not require court to abstain from request to en oin enforcement of allegedly unconstitutional ordinance by city, even though action for in unction was sought less than 0/ hours before city brought suit in state court to enforce the ordinance against the plaintiff. Hotwithstanding the policy in favor of federal courts exercising urisdiction, it has been recogniFed that there are circumstances wherein it may be appropriate for a federal court to defer to a pending state court proceeding . Dne such circumstance is addressed in Younger v! Harris" /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225 !*5.*" . In Younger" the Supreme 3ourt held that Iabstention is appropriate where, absent $$bad faith, harassment, or $$a patently invalid state statute, federal urisdiction has been invoked for the purpose of restraining state criminal proceedings.J 1olorado .iver" supra /0/ U.S. at +*2, 52 S.3t. at *0/,. Younger Ls result was ustified, in part, by the 3ourtLs considerations of comity and Ia proper respect for state functions.J Younger" /6* U.S. at //, 5* S.3t. at .,6. #he concept does not mean blind deference to IStatesL 4ightsJ any more than it means centraliFation of control over every important issue in our Hational Covernment and its courts. #he (ramers re ected both these courses. &hat the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and Hational Covernments, and in which the Hational Covernment, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of States. Id! at //, 5* S.3t. at .,6',*. ;lthough Younger dealt with an in unction against a state criminal proceeding, it has since been recogniFed that the concern for comity and federalism is equally applicable to certain civil proceedings in which important state

interests are implicated. /hio 1ivil .ights 1ommission v! #a+ton 1hristian Schools" Inc!" /.. U.S. 2*5, *62 S.3t. 0.*+, 5* 1.Gd.0d ,*0 !*5+2" !administrative civil rights proceeding"7 'iddlesex 1ount+ 2thics 1ommittee v! *arden State Bar &ssOn!" /,. U.S. /0-, *60 S.3t. 0,*,, .- 1.Gd.0d **2 !*5+0" !state bar disciplinary hearing"7 Huffman v! Pursue" Ltd!" /06 U.S. ,50, 5, S.3t. *066, /- 1.Gd.0d /+0 !*5.," !state nuisance action"7 5uidice v! Nail" /-6 U.S. -0., 5. S.3t. *0**, ,* 1.Gd.0d -.2 !*5.." !civil contempt proceeding"7 Trainor v! Hernande," /-* U.S. /-/, 5. S.3t. *5**, ,0 1.Gd.0d /+2 !*5.." !state welfare proceeding"7 'oore v! Sims" //0 U.S. /*,, /0-, 55 S.3t. 0-.*, 0-.., 26 1.Gd.0d 55/ !*5.5" !child custody proceeding". #hus, the fact that this is a civil proceeding does not necessarily bar the application of the Younger doctrine. M-NM/N #he Younger doctrine is properly raised in a motion to dismiss for failure to state a claim upon which relief can be (1409 granted, itchens v! Bowen" +0, (.0d *--., *--5 !5th 3ir.*5+." . &here the doctrine is applicable, abstention is required if@ !*" there are pending state udicial proceedings7 !0" the state proceedings implicate important state interests7 and !-" the state proceedings provide an adequate opportunity to raise federal questions. 'iddlesex 1ount+ 2thics 1ommittee v! *arden State Bar &ssociation" /,. U.S. /0-, /-0, *60 S.3t. 0,*,, 0,0*, .1.Gd.0d **2 !*5+0"7 Fresh International 1orp! v! &gricultural La$or .elations Board" +6, (.0d *-,-, *-,.'+ !5th 3ir.*5+2". &hen these criteria are met, Ia district court must dismiss the federal action ... MandN there is no discretion to grant in unctive relief.J 5uidice v! Nail" /-6 U.S. -0., --., 5. S.3t. *0**, *0*+, ,* 1.Gd.0d -.2 !*5.." 7 Fresh" supra at *-,2. M,N #hese authorities would probably mandate abstention here if the 3ityLs characteriFation of the 3lubLs complaint were correct. See /hio 1ivil .ights 1ommission" supra! However, the 3lub is not seeking a stay of the state proceedings as such, but is seeking to en oin the 3ity from enforcing the ordinance. (H$ ;lthough the 3ity has suggested that the relief sought by the 3lub is tantamount to an in untion against the state proceedings , the court disagrees. If the 3lub were attempting to en oin the State court proceedings, considerations of comity would mandate absention. ; request for an in unction against the 3ityLs enforcing the ordinance raises no such considerations. (H$ ;t oral argument, the <onathan 3lub stated that its intention was not to seek in unctive relief which would in any way interfere with the pending state court proceeding, or prevent the 3ity from proceeding in state court. 4ather, the 3lub seeks in unctive relief only against the 3ity of 1os ;ngeles to prevent its enforcement of the ordinance against the 3lub. ;lthough Younger Iand its progeny express a strong federal policy against federal'court interference with pending state Budicial proceedings" absent extraordinary circumstances,J 'iddlesex 1ount+ 2thics 1ommittee v! *arden State Bar &ssociation" /,. U.S. /0-, /-*, *60 S.3t. 0,*,, 0,0*, .- 1.Gd.0d **2 !*5+0" !emphasis added", the Younger 3ourt itself specifically distinguished Younger from cases where, as here, an in unction is sought against allegedly unconstitutional state action as distinguished from a state proceeding. In M Baggett v! Bullitt" -.. U.S. -26, +/ S.3t. *-*2, *0 1.Gd.0d -.. !*52/" N and similar cases we en oined state officials from discharging employees who failed to take certain loyalty oaths. &e held that the States were without power to exact the promises involved.... ;part from the fact that any plaintiff discharged for exercising his constitutional right to take the oath would have had no adequate remedy at law, the relief sought was of course the kind that raises no special pro$lem9an inBunction against allegedl+ unconstitutional state action ?discharging the emplo+ees@ that is not part of a criminal prosecution! /6* U.S. at /. n. /, 5* S.3t. at .,0 n. /. #he relief sought by the 3lub in this case is essentially the same'in unctive relief against a municipality enforcing an ordinance which the 3lub believes to be unconstitutional. #he Hinth 3ircuit has also held that Younger applies only to in unctions against state proceedings. In 'o$il /il 1orp! v! 1it+ of Long Beach" ..0 (.0d ,-/ !5th 3ir.*5+,", $$the 3ity of 1ong %each brought suit in the state court seeking to recover from various oil companies certain funds which the 3ity would have received but for deductions of windfall profits taxes. #he oil companies removed the action to federal court where a declaratory relief action filed by the oil companies on the same issue was already pending. #he 3ity moved to dismiss the cases based on several grounds, including the Younger abstention doctrine. #he trial udge dismissed the claims sua sponte and remanded the state court action. #he ninth circuit reversed holding that@

IIYounger is inapplicable because no state proceedings such as a criminal proceeding are being en oined . Younger only bars federal intervention in state proceedings (1410 involving Iimportant state interestsJ that are Ivital to the operation of state government.J 'iofsk+ v! Superior 1ourt" .6- (.0d --0, --. !5th 3ir.*5+-" . ... Indeed, no attempt to en oin the state proceeding was ever undertaken, a crucial factor in Younger! ;s the Supreme 3ourt has stated, Younger Ls Iprinciples of comity and federalism do not require that a federal court abandon urisdiction it has properly acquired simply because a similar suit is later filed in a state court.J Town of Lockport v! 1iti,ens for 1ommunit+ &ction at the Local Level" /-6 U.S. 0,5 M 5. S.3t. *6/., ,* 1.Gd.0d -*-N !*5..". &e see nothing invidious about a plaintiff filing suit in federal court before his opponent files a similar suit in state court. Id! at ,/0. It is true that the Supreme 3ourt has expanded the reach of the Younger doctrine to other types of proceedings" each of which Ibore similarities to criminal proceedings or otherwise implicated state interests vital to the operation of state government.J 'iofsk+ v! Superior 1ourt of State of 1alifornia" .6- (.0d --0, --. !5th 3ir.*5+-" . However, no case cited by the 3ity suggests that the Younger abstention doctrine is applicable to anything other than an in unction against a state proceeding. In all the cases brought to our attention where abstention was required, an in unction of some $$ governmental proceeding was involved. In /hio 1ivil .ights 1ommission v! #a+ton 1hristian Schools" Inc!" /.. U.S. 2*5, *62 S.3t. 0.*+, 0.06, 5* 1.Gd.0d ,*0 !*5+2", an in unction was sought against a pending state administrative proceeding. In 'iddlesex 1ount+ 2thics 1ommittee v! *arden State Bar &ssociation" /,. U.S. /0-, *60 S.3t. 0,*,, .- 1.Gd.0d **2 !*5+0", an in unction was sought against a state bar disciplinary proceeding. See *arden State Bar &ssociation v! 'iddlesex 1ount+ 2thics 1ommittee" 2/- (.0d **5, *0* !-rd 3ir.*5+*" . In Fresh International 1orp! v! &gricultural La$or .elations Board" +6, (.0d *-,-, *-,, !5th 3ir.*5+2", an in unction was sought to en oin proceedings before a state administrative law udge for the ;gricultural 1abor 4elations %oard. In -orld Famous #rinking 2mporium" Inc! v! 1it+ of Tempe" +06 (.0d *6.5 !5th 3ir.*5+." , a nightclub went to federal court seeking to invalidate the state courtLs order denying it an entertainment permit. )laintiffs used the federal court, in effect, as an appellate tribunal, and ultimately sought an order granting the permit, which would have rendered the udgment of the state court Inugatory.J See Penn,oil 1o! v! Texaco" Inc!" ''' U.S. '''', 107 S.Ct. 1519, 1527, 95 L.Ed. 2d 1 ! 1987". In itchens v! Bowen" +0, (.0d *--. !5th 3ir.*5+." , an in unction was sought to directly en oin all state enforcement agencies, including the Dregon 8epartment of <ustice, from attempting to establish the paternity of the plaintiffs in a state action to collect delinquent child support obligations. M2N In the present case, since the 3lub has only asked this court to en oin the enforcement of the allegedly unconstitutional ordinance by the 3ity and has not sought to en oin the state proceeding itself, Younger v! Harris has no application, and the 3ity is free to proceed in the state court. (or these reasons, the defendantLs :otion to 8ismiss, or in the ;lternative, for Summary <udgment based upon the abstention doctrine as enunciated by Younger v! Harris" is 8GHIG8. %&o6">4 +. Super&or Court o6 State o6 Ca/., <n and -or Sa5ra!ento Count4, 703 -.2d 332 $9t) C&r. $Ca/.',.an 03, 1983' )laintiff brought civil rights action seeking to restrain discovery proceedings in state tort litigation that he claimed would violate rights protected by United States 3onstitution. #he United States 8istrict 3ourt for the Gastern 8istrict of 3alifornia, 4aul ;. 4amireF, <., denied relief and dismissed action, and plaintiff appealed. #he 3ourt of ;ppeals, Horris, 3ircuit <udge, held that district court had sub ect'matter urisdiction over civil rights action in which plaintiff sought to restrain state udiciary from conducting discovery proceedings in private tort litigation. ?acated and remanded. &est Headnotes

011 C&+&/ R&g)t" 78

132#$9'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-0- 3olor of 1aw .+k*-02 )articular 3ases and 3ontexts .+k*-02!5" k. )ursuit of )rivate or <udicial 4emedies. :ost 3ited 3ases !(ormerly .+k*52.*, .+k*52, .+k*-.,!*"" 8istrict court had sub ect'matter urisdiction over suit brought under E *5+- even when state action allegedly violating plaintiffLs federally protected rights took form of state court proceedings, and it was error for district court to dismiss E *5+- claim for lack of sub ect'matter urisdiction. /0 U.S.3.;. E *5+-. 021 -edera/ Court" 1702 420

*.6% (ederal 3ourts *.6%?I State 1aws as 4ules of 8ecision *.6%?I!3" ;pplication to )articular :atters *.6%k/06 k. <udgments. :ost 3ited 3ases In deciding whether to give preclusive effect to state courtLs decision in E *5+- action, federal courts look to preclusion rules of state in question. 031 .udg!ent 228 #4#

00+ <udgment 00+PI? 3onclusiveness of ;d udication 00+PI?!;" <udgments 3onclusive in Ceneral 00+k2/- Hature of ;ction or Dther )roceeding 00+k2/2 k. Special )roceedings Dther #han ;ctions. :ost 3ited 3ases Under 3alifornia law, because appellate court has discretion to deny writ of mandate without passing on merits of petition, denial may have preclusive effect only if sole possible ground of denial was on merits or it affirmatively appears that denial was intended to be on merits. 041 .udg!ent 228 #4#

00+ <udgment 00+PI? 3onclusiveness of ;d udication 00+PI?!;" <udgments 3onclusive in Ceneral 00+k2/- Hature of ;ction or Dther )roceeding 00+k2/2 k. Special )roceedings Dther #han ;ctions. :ost 3ited 3ases Since there was no indication that 3alifornia appellate courts intended summary denials of petitions for writ of mandate to be decisions on merits of claims, it was clear error for district court to dismiss on principles of res udicata petitionerLs civil rights action alleging that denial of writ constituted violation of his constitutional rights. 051 Court" 10# 508$7'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!." k. 3riminal )roceedings. :ost 3ited 3ases Under certain circumstances, abstention from intervention in state criminal proceedings is itself inappropriate, and those circumstances obtain where prosecution $$is brought in bad faith, $$where statute is flagrantly and patently violative of express constitutional prohibitions, and $$where state forum is biased.

0#1 Court" 10#

508$1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!*" k. In Ceneral. :ost 3ited 3ases Unless vital state interests are at stake, federal district courts are not proscribed from interfering with ongoing state civil proceedings where necessary to vindicate federally protected civil rights. 071 Court" 10# 508$2.1'

*62 3ourts *62?II 3oncurrent and 3onflicting <urisdiction *62?II!%" State 3ourts and United States 3ourts *62k,6+ In unction by United States 3ourt ;gainst )roceedings in State 3ourt *62k,6+!0" 4estraining )articular )roceedings *62k,6+!0.*" k. In Ceneral. :ost 3ited 3ases !(ormerly *62k,6+!0"" 3ivil rights action in which plaintiff sought to restrain state udiciary from conducting private tort litigation in way that allegedly threatened to violate his constitutional rights was not sub ect to Younger abstention doctrine where plaintiff did not seek to en oin state criminal proceedings, Iquasi'criminalJ proceedings, proceedings in aid of criminal law, proceedings initiated by state in its sovereign capacity, or proceedings brought to vindicate vital state interests. /0 U.S.3.;. E *5+-. 081 -edera/ Court" 1702 41

*.6% (ederal 3ourts *.6%I <urisdiction and )owers in Ceneral *.6%I!%" 4ight to 8ecline <urisdiction7 ;bstention 8octrine *.6%k/* k. Hature and Crounds in Ceneral. :ost 3ited 3ases 8octrine of abstention remains extraordinary and narrow exception to duty of district court to ad udicate controversy properly before it. I #he facts as alleged in :iofskyLs complaint may be summariFed as follows@ (H* :iofsky is a medical doctor who practiced the specialty of anesthesiology from *520 until his withdrawal from practice in *5.5. In that year he pleaded nolo contendere in Sacramento Superior 3ourt to criminal charges that he had committed acts in violation of Section 0++ of the 3alifornia )enal 3ode.(H0 Upon recommendation of the )robation 8epartment, the Superior 3ourt appointed three doctors, appellees Calioni, (rench, and Kaldor, to conduct a psychiatric examination of :iofsky to determine whether he was a :entally 8isordered Sex Dffender !:8SD", defined by 3alifornia &elfare 9 Institutions 3ode E 2-66 as any person who, by reason of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others. ; second purpose of (334 the psychiatric examination was to determine whether :iofsky would benefit from care and treatment in a state hospital, which is a statutory alternative to a sentence in state prison. Dn the basis of reports prepared by the psychiatrists, the Superior 3ourt determined that :iofsky was an :8SD who could benefit from treatment in a state hospital and ordered him committed for a fixed term of years to ;tascadero State Hospital, where :iofsky has remained in custody. (H*. (or the limited purpose of reviewing the district courtLs dismissal of the action, we accept the allegations of the complaint as true. (H0. Section 0++ provides@

;ny person who shall wilfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in part one of this code upon or with the body, or any part or member thereof, of a child under the age of fourteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the State prison for a term of from one year to life. Subsequently, :iofsky was named as defendant in numerous civil damage actions filed by *2- surgical patients, each alleging that :iofsky placed his penis in her mouth during surgery. #he patients used fictitious names in their civil actions Ito secrete the true identity of the plaintiffs from the general community in which they live in order to avoid extreme humiliation, embarrassment, degradation and ridicule....J &hen plaintiffs scheduled the depositions of the three court'appointed psychiatrists to discover information obtained from :iofsky during the :8SD proceeding, :iofsky moved for a protective order prohibiting the psychiatrists from disclosing any such information on deposition. Upon the denial of this motion by the Superior 3ourt, :iofsky sought appellate review by petitioning for a writ of mandate in the 3alifornia 3ourt of ;ppeal and thereafter in the 3alifornia Supreme 3ourt. ;fter both state appellate courts denied relief, :iofsky filed this E *5+- action in the United States 8istrict 3ourt, alleging unconstitutional infringements of privacy interests, the right against compelled self'incrimination, and a right to medical treatment. In his complaint, he prayed for an in unction prohibiting disclosure of the information by deposition testimony or otherwise and Isuch further relief as the court deems ust.J ;cting sua sponte" the district court dismissed the action for lack of sub ect matter urisdiction, reasoning that although :iofsky characteriFed his federal court suit as a civil rights action brought pursuant to /0 U.S.3. E *5+-, he was in reality asking a federal district court to review the Superior 3ourtLs denial of his motion for a protective order@ ;s a general rule, it is not the province of lower federal courts to review the appropriateness of civil decisions of a stateLs highest court. )roceedings in state courts should normally be allowed to continue unimpaired by intervention of the lower federal courts, with relief from error, if any, through the state appellate courts and ultimately to the United States Supreme 3ourt by writ of certiorari. &tlantic 1oastline .! 1o! v! Brotherhood of Loc! 2ng!" -5+ U.S. 0+*, 56 S.3t. *.-5 M02 1.Gd.0d 0-/N !*5.6", .ooker v! Fidelit+ Trust 1o!" 02- U.S. /*-, // S.3t. */5 M2+ 1.Gd. -20N !*50-", Buckle+ Towers" etc!" v! Buchwald" ,5, (.0d 0,-, 0,/ !,th 3ir.*5.5", /livares v! 'artin" ,,, (.0d **50 !,th 3ir.*5..", P!I! 2nterprises" Inc! v! 1ataldo" /,. (.0d *6*0 !*st 3ir.*5.0" .... In light of the cases cited herein, it is apparent that the only avenue available to plaintiff in the present case for vindication of his federal constitutional rights is a petition for writ of certiorari addressed to the United States Supreme 3ourt. ;ccordingly, plaintiffLs complaint will be dismissed with pre udice. 0+ U.S.3. E *0,.!-". In the alternative, the district court based its dismissal on principles of res Budicata! II #he threshold question presented by :iofskyLs appeal is whether a federal district court has urisdiction to entertain an action brought under E *5+- to restrain a state court from conducting litigation in a manner that would allegedly deprive a party of rights guaranteed by the United States 3onstitution. #he question whether sub ect matter urisdiction exists is, of course, different from the question whether a federal district court should, in deference to principles of comity and federalism, abstain from exercising its urisdiction in order to avoid interfering with ongoing state udicial proceedings. See (335Younger v! Harris" /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225 !*5.*" . &ith that distinction in mind, we address the question whether the district court erred in dismissing, sua sponte" :iofskyLs E *5+- action for lack of urisdiction. ?iewed in terms of its practical effect on the litigation in state court, the relief :iofsky seeks may fairly be characteriFed as federal court review of state court action denying him a protective order. ;s the district court observed, it is not the province of lower federal courts, as a general rule, to review state court discovery orders7 however, the urisdictional inquiry cannot end there. :iofsky claims that the United States 3onstitution protects the confidentiality of the information he imparted to the court'appointed psychiatrists and that the Superior 3ourt and

the psychiatrists, acting under color of state law, threaten to disclose the information to plaintiffs in civil litigation . $$If, as :iofsky claims, the 3onstitution does protect the confidentiality of the information, we know of no ground for exempting from the broad reach of E *5+- actions taken by persons acting under color of state law in udicial proceedings, whether those persons are udges or others appointed by udges to act on behalf of the court. &e recogniFe that, as a general proposition, Istate courts shall remain free from interference by federal courts.J &tlantic 1oast Line .!.! v! Brotherhood of Locomotive 2ngineers" -5+ U.S. 0+*, 0+0, 56 S.3t. *.-5, *./*, 02 1.Gd.0d 0-/ !*5.6". #hat has been 3ongressLs mandate since it first enacted the ;nti'In unction ;ct in *.5-, providing that in federal courts Ia writ of in unction Mshall notN be granted to stay proceedings in any court of a state.J ;ct of :arch 0, *.5- E ,, * Stat. --, !current version at 0+ U.S.3. E 00+- !*5.2"". However, $$civil rights actions under E *5+- are among the exceptions to the ;nti'In unction ;ct that have been Iexpressly authoriFed by ;ct of 3ongress,J id! See 'itchum v! Foster" /6. U.S. 00,, 50 S.3t. 0*,*, -0 1.Gd.0d .6, !*5.0" . #hus, as 'itchum makes clear, 3ongress has not rendered federal courts impotent in the face of an infringement of constitutional rights by the udicial arm of state government. ;s the 3ourt said in 'itchum" IMtNhe very purpose of E *5+- was to interpose the federal courts between the States and the people, as guardians of the peopleLs federal rights'to protect the people from unconstitutional action under color of state law, =whether that action be executive, legislative, or Budicial!> J /6. U.S. at 0/0, 50 S.3t. at 0*20 !quoting 2x parte Nirginia, *66 U.S. --5, -/2, 0, 1.Gd. 2.2 !*+.5" !emphasis added"". M*N In light of 'itchum" we conclude that district courts have sub ect matter urisdiction over suits brought under E *5+- even when the state action allegedly violating plaintiffLs federally protected rights takes the form of state court proceedings.(H- $$;ccordingly, we hold that the district court erred in dismissing :iofskyLs claim for lack of sub ect matter urisdiction.(H/ (H-. 1ike the district court in 'itchum" see id! /6. U.S. at 00+, 50 S.3t. at 0*,/'0*,,, the district court here relied on &tlantic 1oast Line .!.! v! Brotherhood of Locomotive 2ngineers" -5+ U.S. 0+*, 56 S.3t. *.-5, 02 1.Gd.0d 0-/ !*5.6". #he Supreme 3ourt noted in 'itchum" however, that the &tlantic 1oast Line case did not deal with the Iexpressly authoriFedJ exception to the ;nti'In unction ;ct. /6. U.S. at 00+, 50 S.3t. at 0*,/',,. (H/. &e do not decide at this stage of the litigation whether :iofskyLs complaint states a cause of action upon which relief can be granted. See (ed.4.3iv.). *0!b"!2". In deciding that the district court has sub ect matter urisdiction, we determine only that :iofskyLs complaint states a colorable claim for relief under E *5+- that is not Iwholly insubstantial and frivolous.J See 5ackson Transit &uthorit+ v! Local #ivision 7=AE" &malgamated Transit (nion" /,. U.S. *,, 0*, *60 S.3t. 0060, 0062 n. 2, .- 1.Gd.0d 2-5 !*5+0" !quoting Bell v! Hood" -0. U.S. 2.+, 2+0'+-, 22 S.3t. ..-, ..2, 56 1.Gd. 5-5 !*5/2" ". 1f! 2stelle v! Smith" /,* U.S. /,/, *6* S.3t. *+22, 2+ 1.Gd.0d -,5 !*5+*" !when 'iranda warning not given before defendant submitted to psychiatric examination, admission of psychiatric testimony at sentencing phase of capital murder proceeding violated defendantLs privilege against compelled self'incrimination". III M0N ;s an alternative ground for dismissal, the district court found that :iofskyLs (33# civil rights action was barred by res udicata under the general principle that the usual rules of preclusion apply to E *5+- actions brought in federal court. See &llen v! 'c1urr+" //5 U.S. 56, *6* S.3t. /**, 22 1.Gd.0d -6+ !*5+6". In deciding whether to give preclusive effect to state court decisions in E *5+- actions, federal courts look to the preclusion rules of the state in question. Id! at 52, *6* S.3t. at /*,'*2. See also remer v! 1hemical 1onstruction 1orp!" /,2 U.S. /2*, /22, /+*' +0, *60 S.3t. *++-, *++5, *+5.'5+, .0 1.Gd.0d 020 !*5+0". #hus, the relevant inquiry in the case before us is whether 3alifornia courts would give preclusive effect to the orders of the 3alifornia 3ourt of ;ppeal and the 3alifornia Supreme 3ourt denying :iofskyLs petitions for writ of mandate. M-NM/N :iofsky first raised his claims in a hearing on a contested discovery motion for a protective order. ;fter the Superior 3ourt denied his motion by minute order, :iofsky sought immediate relief from the 3alifornia 3ourt of ;ppeal and then from the 3alifornia Supreme 3ourt by petitioning for a writ of mandate. %oth courts denied his petitions without a hearing or explanation. Under 3alifornia practice, such summary denials of writs of mandate are

not ordinarily given preclusive effect. , %. &itkin, 3alifornia )rocedure 3h. PII, E */2 !0d ed. *5.*". %ecause an appellate court has the discretion to deny a writ without passing on the merits of a petition, a denial may have preclusive effect only if the Isole possible ground of denial was on the merits or it affirmatively appears that the denial was intended to be on the merits.J People v! 'edina" 2 3al.-d /+/, /5* n. 2, /50 ).0d 2+2, 256 n. 2, 55 3al.4ptr. 2-6, 2-/ n. 2 !*5.0". See 1onsumersO Lo$$+ &gainst 'onopolies v! Pu$lic (tilities 1ommOn" 0, 3al.-d +5*, 56* n. -, 26- ).0d /*, /2 n. -, *26 3al.4ptr. *0/, *05 n. -, !*5.5"7 Hagan v! Superior 1ourt" ,. 3al.0d .2., ..6, -.* ).0d 5+0, 5+/, 00 3al.4ptr. 062, 06+ !*520". 1f! .icher v! Superior 1ourt" 2- 3al.;pp.-d ./+, *-/ 3al.4ptr. ,0 !*5.2" !minute order with stated reasons for decision held to be on merits". Since there is no indication that the 3alifornia appellate courts intended their summary denials to be decisions on the merits of :iofskyLs claims, it was clear error for the district court to dismiss :iofskyLs action on principles of res udicata. (H, (H,. #he district courtLs reliance upon Francisco 2nterprises v! ir$+" /+0 (.0d /+* !5th 3ir.*5.-" , is misplaced. #here the E *5+- plaintiff attempted a collateral attack against a final state court udgment7 here the state courts of 3alifornia have made no final determination of :iofskyLs constitutional claims. I? M,NM2N ;s an alternative ground for affirming the district courtLs dismissal of :iofskyLs action, appellees rely on the principles of federalism expressed in Younger v! Harris" /6* U.S. -., 5* S.3t. ./2, 0. 1.Gd.0d 225 !*5.*" , and its progeny. (H2 #he Younger doctrine was borne of the concern that federal court in unctions might unduly hamper a state in its prosecution of criminal laws. #he doctrine stemmed from the fear that interference with a state criminal prosecution would disrupt the exercise of a basic state function, Iprohibiting the State from carrying out the important and necessary task of enforcing these laws against socially harmful conduct that the State believes in good faith to be punishable under its laws and 3onstitution.J Id! at ,*',0, 5* S.3t. at .,/. ;lthough the 3ourt has not limited (337 application of the Younger doctrine to state criminal proceedings, a review of the civil cases in which the 3ourt has invoked Younger abstention demonstrates that each case shares with criminal proceedings an important state interest.(H. (or example, in the first of these cases, Huffman v! Pursue" Ltd!" /06 U.S. ,50, 26-'6., 5, S.3t. *066, *06.'65, /- 1.Gd.0d /+0 !*5.,", the 3ourt held that proceedings in a nuisance abatement case were Iin aid of the criminal lawJ and therefore fell within the Younger doctrine. Huffman was followed by decisions requiring abstention in order to avoid interference with a state civil contempt proceeding, 5uidice v! Nail" /-6 U.S. -0., 5. S.3t. *0**, ,* 1.Gd.0d -.2 !*5..", and a state civil enforcement action brought by the state in its sovereign capacity, Trainor v! Hernande," /-* U.S. /-/, 5. S.3t. *5**, ,0 1.Gd.0d /+2 !*5.." . In 'oore v! Sims" //0 U.S. /*,, 55 S.3t. 0-.*, 26 1.Gd.0d 55/ !*5.5", the 3ourt held that federal court intervention was unwarranted when the state temporarily removed children from their parentsL home pending the outcome of a civil proceeding initiated by the state to determine whether the children were abused. :ost recently, in 'iddlesex 1ount+ 2thics 1omm! v! *arden State Bar &ssOn" /,. U.S. /0-, *60 S.3t. 0,*,, .- 1.Gd.0d **2 !*5+0", the 3ourt held that Younger abstention was necessary to avoid interference with state bar disciplinary procedures. In each of these cases, the state or an agent of the state was a party to the proceeding deemed insulated from federal court intervention. (H+ In addition, each of these civil suits bore similarities to criminal proceedings or otherwise implicated state interests vital to the operation of state government. In short, none of these cases authoriFes our departure from the traditional distinction between civil and criminal proceedings as originally set forth in Younger! Indeed, in 'iddlesex" the 3ourt carefully avoided the implication that the Younger doctrine applied indiscriminately to civil proceedings. (H2. %ecause it dismissed the action for lack of sub ect matter urisdiction, the district court did not address the Younger question. #he parties briefed the issue, however, and the record reveals that :iofsky presented to the district court his argument that the Younger doctrine is inapplicable. &e consider the question at this time in the interest of udicial efficiency. See 0ixon v! Fit,gerald" /,. U.S. .-*, *60 S.3t. 0256, 025+ n. 0-, .- 1.Gd.0d -/5 !*5+0". &ere we to agree with appellees on the issue, Younger abstention would provide an alternative ground for affirming the district courtLs dismissal of the action, (nited States v! 1ount+ of Hum$oldt" 20+ (.0d ,/5, ,,* !5th 3ir.*5+6"7 Thos! P! *on,ale, 1orp! v! 1onseBo 0acional de Produccion de 1osta .ica" 2*/ (.0d *0/., *0,2 !5th 3ir.*5+6" , and we may make our determination on any ground fairly presented by the record, 5affke v! #unham" -,0 U.S. 0+6, 0+*, .. S.3t. -6., -6+, * 1.Gd.0d -*/ !*5,.". (H.. $$It should be noted that under certain circumstances, abstention from intervention in state criminal

proceedings is itself inappropriate. Younger" /6* U.S. at ,-',/, 5* S.3t. at .,/',,. #hese circumstances obtain where the prosecution is brought in bad faith, id! at /.'/5, 5* S.3t. at .,0',-7 where a statute is Iflagrantly and patently violative of express constitutional prohibitions ...,J id! at ,-',/, 5* S.3t. at .,/',, !quoting -atson v! Buck" -*- U.S. -+., /60, 2* S.3t. 520, 52., +, 1.Gd. */*2 !*5/*" "7 and where the state forum is biased, *i$son v! Berr+hill" /** U.S. ,2/, ,.., 5- S.3t. *2+5, *25., -2 1.Gd.0d /++ !*5.-". (H+. In 5uidice v! Nail" /-6 U.S. -0., 5. S.3t. *0**, ,* 1.Gd.0d -.2 !*5..", the action to which the request for an in unction can be traced was ordinary civil litigation. However, the proceeding the plaintiff sought to en oin was the stateLs contempt process. #he 3ourt held@ #he contempt power lies at the core of the administration of a StateLs udicial system. &hether disobedience of a court'sanctioned subpoena, and the resulting process leading to a finding of contempt of court, is labeled civil, quasi'criminal, or criminal in nature, we think the salient fact is that federal court interference with the StateLs contempt process is Ian offense to the StateLs interest ... likely to be every bit as great as it would be were this a criminal proceeding,J Huffman" supra" M/06 U.S.N at 26/ M5, S.3t. at *06+N. 5uidice" /-6 U.S. at --,'-2, 5. S.3t. at *0*.'*+ !footnotes and citation omitted". &hile the contempt process vindicated rights of private litigants, Iits purpose is by no means spent upon purely private concerns.J Id! at --2 n. *0, 5. S.3t. at *0*.. #he policies underlying Younger are fully applicable to noncriminal udicial proceedings when important state interests are involved. 'oore v! Sims" //0 U.S. /*,, /0-, 55 S.3t. 0-.*, 0-.., 26 1.Gd.0d 55/ !*5.5" 7 Huffman v! Pursue" Ltd!" /06 U.S. ,50, 26/'26,, 5, S.3t. *066, *06+, /- 1.Gd.0d /+0 !*5.," . #he importance of the state interest may be demonstrated by the fact that the noncriminal proceedings bear a close relationship to proceedings criminal in nature, as in Huffman" supra! )roceedings necessary for the vindication of important state policies or for the functioning of the state udicial system also evidence the stateLs substantial interest in the litigation. Trainor v! Hernande," /-* U.S. /-/, 5. S.3t. *5**, ,0 1.Gd.0d /+2 !*5.." 7 5uidice v! Nail" /-6 U.S. -0., 5. S.3t. *0**, ,* 1.Gd.0d -.2 !*5..". &here vital state interests are (338 involved, a federal court should abstain Iunless state law clearly bars the interposition of the constitutional claims.J 'oore" supra" //0 U.S., at /02, 55 S.3t., at 0-.5. 'iddlesex" *60 S.3t. at 0,0*. #hus, unless Ivital state interestsJ are at stake, federal district courts are not proscribed from interfering with ongoing state civil proceedings when necessary to vindicate federally protected civil rights. M.N In sum, neither Younger nor any of its progeny controls the case now before us .(H5 :iofsky does not seek to en oin $$state criminal proceedings, $$Iquasi'criminalJ proceedings, $$proceedings in aid of the criminal law, $$proceedings initiated by the state in its sovereign capacity, or $$proceedings brought to vindicate a vital state interest. 4ather, he invokes the federal district courtLs urisdiction under E *5+- to restrain the state udiciary from conducting private tort litigation in a way that allegedly threatens to violate his constitutional rights. (H5. #he Supreme 3ourt has expressly reserved the question whether Younger applies to civil cases generally, see Trainor v! Hernande," /-* U.S. /-/, /// n. +, 5. S.3t. *5**, *5*+ n. +, ,0 1.Gd.0d /+2 !*5.."7 Huffman v! Pursue" Ltd!" /06 U.S. ,50, 26., 5, S.3t. *066, *065, /- 1.Gd.0d /+0 !*5.," , and the question is one of first impression in our circuit. 1f! -orldwide 1hurch of *od" Inc! v! 1alifornia" 20- (.0d 2*- !5th 3ir." !Younger abstention invoked to avoid impairing enforcement of receivership proceedings brought by state in its sovereign capacity", cert! denied" //5 U.S. 566, *6* S.3t. 0.6, 22 1.Gd.0d *-6 !*5+6"7 .osenthal v! 1arr" 2*/ (.0d *0*5 !5th 3ir." !Younger abstention invoked to avoid intervening in state attorney disciplinary proceedings", cert! denied" //. U.S. 50., *66 S.3t. -60/, 2, 1.Gd.0d **0* !*5+6"7 Tovar v! Billme+er" 265 (.0d *05* !5th 3ir.*5.5" !Younger doctrine improperly informed district courtLs decision to abstain under 1olorado .iver -ater 1onservation #ist! v! (nited States" /0/ U.S. +66, 52 S.3t. *0-2, /. 1.Gd.0d /+- !*5.2", when E *5+- plaintiffs had initiated a pending state court action based upon the same asserted wrong". #he #hird 3ircuit has refused to apply Younger to avoid interfering with routine state civil litigation. See 5ohnson v! ell+" ,+- (.0d *0/0, *0/. !-d 3ir.*5.+" !dismissal under Younger doctrine inappropriate when underlying quiet title actions were initiated by private parties ".

M+N In determining whether to expand the Younger doctrine to make it applicable to civil litigation generally, we must bear in mind the fundamental principle that federal courts have an Iunflagging obligationJ to exercise their urisdiction. Tovar v! Billme+er" 265 (.0d *05*, *05- !5th 3ir.*5+6" !quoting 1olorado .iver -ater 1onservation #istrict v! (nited States" /0/ U.S. +66, +*.'*+, 52 S.3t. *0-2, *0/2'*0/., /. 1.Gd.0d /+- !*5.2" ". I#his obligation is particularly weighty when those seeking a hearing in federal court are asserting ... their right to relief under /0 U.S.3. E *5+-.J 265 (.0d at *05-. ;lthough Younger and its progeny teach us that principles of federalism and comity sometimes offset this obligation to entertain civil rights actions, the doctrine of abstention remains Ian extraordinary and narrow exception to the duty of a district court to ad udicate a controversy properly before it.J 1ount+ of &lleghen+ v! Frank 'ashuda 1o!" -26 U.S. *+,, *++, .5 S.3t. *626, *62-, - 1.Gd.0d **2- !*5,5" !quoted in 1olorado .iver -ater 1onservation #istrict v! (nited States" /0/ U.S. +66, +*-, 52 S.3t. *0-2, *0//, /. 1.Gd.0d /+- !*5.2"". #o extend the Younger doctrine to encompass conventional civil litigation would effectively permit the exception to consume the rule. In addition, we note that such a transformation would drain 'itchum v! Foster of all its vitality by emasculating the exception to the ;nti'In unction ;ct that 3ongress created in enacting E *5+-. ;ccordingly, we hold that :iofskyLs civil rights action is not sub ect to the Younger abstention doctrine. 3DH31USIDH In conclusion, the district court has sub ect matter urisdiction over :iofskyLs claim and should proceed to ad udicate his civil rights action. &e recogniFe, however, that under principles of equity governing the issuance of preliminary in unctions, see" e!g!" Los &ngeles 'emorial 1oliseum 1ommOn v! 0ational Foot$all League" 2-/ (.0d **5., *06* !5th 3ir.*5+6", it may in any case be inappropriate to en oin the state proceedings at this time. ;s the record before us stands, it appears that :iofsky (339 may not be faced with an immediate threat of irreparable harm. ;fter :iofsky filed his notice of appeal from the district court udgment dismissing his action, the depositions of the psychiatrists were taken and placed under court seal pursuant to a stipulation of the parties that prohibits disclosure of the contents of the depositions pending further order of the Superior 3ourt. 3ounsel for :iofsky contemplate filing motions in limine seeking a court order prohibiting the use of the deposition testimony at trial. Unless and until the Superior 3ourt rules adversely to :iofsky on any such motions, :iofsky appears to face no immediate threat of any further invasion of the privacy interests he claims are protected by the 3onstitution. #he udgment below is ?;3;#G8, and the cause is 4G:;H8G8 for proceedings consistent with this opinion.

)earch of westlaw trial court docu ents all federalG *o plaintG /'2 (.).*. $9830 O /!ad faith prosecution0 or /without hope of o!taining a valid conviction0 5ates v. )heriff 2&&% >A '='=992
3e/a*are +. ;rou"e, 440 U.S. #48, #50, 99 S.Ct. 1391, 59 L.Ed.2d ##0 $U.S.3e/., %ar 27, 1979' ;ppeal was taken by the State from an order of the Superior 3ourt granting defendantLs motion to suppress in a criminal prosecution, finding that automobile stop and detention violated the (ourth ;mendment. #he Supreme 3ourt of 8elaware, -+0 ;.0d *-,5, affirmed, and certiorari was granted. #he Supreme 3ourt of the United States, :r. <ustice &hite, held that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise sub ect to seiFure for violation of law, $$stopping an automobile and detaining the driver in order to check his driverLs license and the registration of the automobile are unreasonable under the (ourth ;mendment. ;ffirmed. 021 Arre"t 35 #0.4$1'

-, ;rrest -,II Dn 3riminal 3harges -,k26./ &hat 3onstitutes a SeiFure or 8etention

-,k26./!*" k. In general. :ost 3ited 3ases !(ormerly -,k2+!/", -/5k.!*"" Con"t&tut&ona/ La* 92 44#0

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!C" )articular Issues and ;pplications 50PP?II!C"0- Search, SeiFure, and 3onfiscation 50k//26 k. In general. :ost 3ited 3ases !(ormerly 50k-*5.,!*"" $$Stopping an automobile and detaining its occupants constitute a IseiFureJ within meaning of the (ourth and (ourteenth ;mendments, even though purpose of stop is limited and resulting detention is quite brief. U.S.3.;.3onst. ;mends. /, */. 031 Sear5)e" and Se&?ure" 349 23

-/5 Searches and SeiFures -/5I In Ceneral -/5k0- k. (ourth ;mendment and reasonableness in general. :ost 3ited 3ases !(ormerly -/5k.!*"" Gssential purpose of proscription in (ourth ;mendment is to impose standard of reasonableness upon exercise of discretion by government officials, including law enforcement agents, in order to safeguard privacy and security of individuals against arbitrary invasion. U.S.3.;.3onst. ;mend. /. 041 Sear5)e" and Se&?ure" 349 23

-/5 Searches and SeiFures -/5I In Ceneral -/5k0- k. (ourth ;mendment and reasonableness in general. :ost 3ited 3ases !(ormerly -/5k.!*"" )ermissibility of particular law'enforcement practice is udged by balancing its intrusion on individualLs (ourth ;mendment interest against its promotion of legitimate governmental interest7 implemented in this manner, reasonableness standard usually requires at a minimum that facts upon which intrusion is based be capable of measurement against an ob ective standard, whether this be probable cause or a less stringent test. U.S.3.;.3onst. ;mend. /. 051 Auto!o8&/e" 48A 349$9'

/+; ;utomobiles /+;?II Dffenses /+;?II!%" )rosecution /+;k-/5 ;rrest, Stop, or Inquiry7 %ail or 8eposit /+;k-/5!5" k. 4oadblock, checkpoint, or routine or random stop. :ost 3ited 3ases !(ormerly -/5k.!*"" In light of physical and psychological intrusion visited upon occupants of vehicle as result of a random stop to check documents, and since alternative mechanisms are available to insure that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation and that licensing, registration and vehicle inspection requirements are being observed, incremental contribution to highway safety of random spot checks does not ustify practice under the (ourth ;mendment. 0* 8el.3. EE 0**+, 0*/-!a", 0.6*, 0.6., 0.*-7 U.S.3.;.3onst. ;mend. /.

0#1 Auto!o8&/e" 48A

349$9'

/+; ;utomobiles /+;?II Dffenses /+;?II!%" )rosecution /+;k-/5 ;rrest, Stop, or Inquiry7 %ail or 8eposit /+;k-/5!5" k. 4oadblock, checkpoint, or routine or random stop. :ost 3ited 3ases !(ormerly -/5k.!*"" :arginal contribution to roadway safety possibly resulting from system of spot checks cannot ustify sub ecting every occupant of every vehicle on the roads to a seiFure, limited in magnitude compared to other intrusions but nonetheless constitutionally cogniFable, at the unbridled discretion of law'enforcement officials. U.S.3.;.3onst. ;mends. /, */. 071 Con"t&tut&ona/ La* 92 1225

50 3onstitutional 1aw 50PI 4ight to )rivacy 50PI!%" )articular Issues and ;pplications 50k*00, k. In general. :ost 3ited 3ases !(ormerly 50k+0!."" ;n individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because automobile and its use are sub ect to government regulations. U.S.3.;.3onst. ;mends. /, */. 081 Auto!o8&/e" 48A 349$9'

/+; ;utomobiles /+;?II Dffenses /+;?II!%" )rosecution /+;k-/5 ;rrest, Stop, or Inquiry7 %ail or 8eposit /+;k-/5!5" k. 4oadblock, checkpoint, or routine or random stop. :ost 3ited 3ases !(ormerly -/5k.!*"" Gxcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise sub ect to seiFure for violation of law, $$stopping an automobile and detaining the driver in order to check his driverLs license and the registration of the automobile are unreasonable under the (ourth ;mendment. U.S.3.;.3onst. ;mend. /. I ;t .@06 p. m. on Hovember -6, *5.2, a Hew 3astle 3ounty, 8el., patrolman in a police cruiser stopped the automobile occupied by respondent.(H* #he patrolman smelled marihuana smoke as he was walking toward the stopped vehicle, and he seiFed marihuana in plain view on the car floor. 4espondent was subsequently indicted for illegal possession of a controlled substance. ;t a hearing on respondentLs motion to suppress the marihuana seiFed as a result of the stop, the patrolman testified that prior to stopping the vehicle he had observed neither traffic or equipment violations nor any suspicious activity, and that he made the stop only in order to check the driverLs license and registration. #he patrolman was not acting pursuant to any standards, guidelines, or procedures pertaining to document spot checks, promulgated by either his department or the State ;ttorney Ceneral. 3haracteriFing the stop as Iroutine,J the patrolman explained, II saw the car (#51 in the area and wasnLt answering any complaints, so I decided to pull them off.J ;pp. ;5. #he trial court granted the motion to suppress, finding the stop and detention to have been wholly capricious and therefore violative of the (ourth ;mendment. (H*. In its opinion, the 8elaware Supreme 3ourt referred to respondent as the operator of the vehicle, see -+0 ;.0d *-,5, *-2* !*5.+". However, the arresting officer testified@ II donLt believe MrespondentN was the

driver. . . . ;s I recall, he was in the back seat . . . ,J ;pp. ;*07 and the trial court in its ruling on the motion to suppress referred to respondent as one of the four IoccupantsJ of the vehicle, id!" at ;*.. #he vehicle was registered to respondent. Id!" at ;*6. #he 8elaware Supreme 3ourt affirmed, noting first that IMtNhe issue of the legal validity of systematic, roadblock'type stops of a number of vehicles for license and vehicle registration check is not now before the 3ourt,J -+0 ;.0d *-,5, *-20 !*5.+" !emphasis in original". #he court held that Ia random stop of a motorist in the absence of specific articulable facts which ustify the stop by indicating a reasonable suspicion that a violation of the law has occurred is constitutionally impermissible and violative of the (ourth and (ourteenth ;mendments to the United States 3onstitution.J Id!, at *-2/. &e granted certiorari to resolve the conflict between this decision, which is in accord with decisions in five other urisdictions,(H0 and the contrary determination in ((1395 six urisdictions (H- that the (ourth ;mendment does not prohibit the kind of automobile stop that occurred here. /-5 U.S. +*2, 55 S.3t. .2, ,+ 1.Gd.0d *6. !*5.+".

At p. 773,
we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise sub ect to seiFure for violation of law, stopping an automobile and detaining the driver in order to check his driverLs license and the registration of the automobile are unreasonable under the (ourth ;mendment. #his holding does not preclude the State of 8elaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. (H02 Buestioning of all oncoming traffic at roadblock' type stops is one possible alternative. &e hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. #he udgment below is affirmed.

**.,3omment Hote.'';nticipatory relief in federal courts against state criminal prosecutions growing out of civil rights activities, + ;.1.4.-d -6* !*522" @ C # $S.Ct.' .23omment Hote.'')reconviction procedure for raising contention that enforcement of penal statute or law is unconstitutionally discriminatory, / ;.1.4.-d /6/ !*52," @ C 5 $S.Ct.'
Cau"e o6 A5t&on Under 42 U.S.C.A. J 1983 6or Un/a*6u/ Arre"t or 3etent&on, 9 Cau"e" o6 A5t&on 237 3e/a*are +. ;rou"e, 440 U.S. #48, 99 S.Ct. 1391, 59 L.Ed.2d ##0 $U.S.3e/., %ar 27, 1979' ;ppeal was taken by the State from an order of the Superior 3ourt granting defendantLs motion to suppress in a criminal prosecution, finding that automobile stop and detention violated the (ourth ;mendment. #he Supreme 3ourt of 8elaware, -+0 ;.0d *-,5, affirmed, and certiorari was granted. #he Supreme 3ourt of the United States, :r. <ustice &hite, held that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise sub ect to seiFure for violation of law, $$stopping an automobile and detaining the driver in order to check his driverLs license and the registration of the automobile are unreasonable under the (ourth ;mendment. ;ffirmed. :r. <ustice %lackmun filed a concurring opinion in which :r. <ustice )owell oined. :r. <ustice 4ehnquist filed a dissenting opinion. 021 Arre"t 35 #0.4$1'

-, ;rrest -,II Dn 3riminal 3harges -,k26./ &hat 3onstitutes a SeiFure or 8etention

-,k26./!*" k. In general. :ost 3ited 3ases !(ormerly -,k2+!/", -/5k.!*"" Con"t&tut&ona/ La* 92 44#0

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!C" )articular Issues and ;pplications 50PP?II!C"0- Search, SeiFure, and 3onfiscation 50k//26 k. In general. :ost 3ited 3ases !(ormerly 50k-*5.,!*"" $$Stopping an automobile and detaining its occupants constitute a IseiFureJ within meaning of the (ourth and (ourteenth ;mendments, even though purpose of stop is limited and resulting detention is quite brief. U.S.3.;.3onst. ;mends. /, */. 031 Sear5)e" and Se&?ure" 349 23

-/5 Searches and SeiFures -/5I In Ceneral -/5k0- k. (ourth ;mendment and reasonableness in general. :ost 3ited 3ases !(ormerly -/5k.!*"" Gssential purpose of proscription in (ourth ;mendment is to impose standard of reasonableness upon exercise of discretion by government officials, including law enforcement agents, in order to safeguard privacy and security of individuals against arbitrary invasion. U.S.3.;.3onst. ;mend. /. 041 Sear5)e" and Se&?ure" 349 23

-/5 Searches and SeiFures -/5I In Ceneral -/5k0- k. (ourth ;mendment and reasonableness in general. :ost 3ited 3ases !(ormerly -/5k.!*"" )ermissibility of particular law'enforcement practice is udged by balancing its intrusion on individualLs (ourth ;mendment interest against its promotion of legitimate governmental interest7 implemented in this manner, reasonableness standard usually requires at a minimum that facts upon which intrusion is based be capable of measurement against an ob ective standard, whether this be probable cause or a less stringent test. U.S.3.;.3onst. ;mend. /. 051 Auto!o8&/e" 48A 349$9'

/+; ;utomobiles /+;?II Dffenses /+;?II!%" )rosecution /+;k-/5 ;rrest, Stop, or Inquiry7 %ail or 8eposit /+;k-/5!5" k. 4oadblock, checkpoint, or routine or random stop. :ost 3ited 3ases !(ormerly -/5k.!*"" In light of physical and psychological intrusion visited upon occupants of vehicle as result of a random stop to check documents, and since alternative mechanisms are available to insure that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation and that licensing, registration and vehicle inspection requirements are being observed, incremental contribution to highway safety of random spot checks does not ustify practice under the (ourth ;mendment. 0* 8el.3. EE 0**+, 0*/-!a", 0.6*, 0.6., 0.*-7 U.S.3.;.3onst. ;mend. /.

0#1 Auto!o8&/e" 48A

349$9'

/+; ;utomobiles /+;?II Dffenses /+;?II!%" )rosecution /+;k-/5 ;rrest, Stop, or Inquiry7 %ail or 8eposit /+;k-/5!5" k. 4oadblock, checkpoint, or routine or random stop. :ost 3ited 3ases !(ormerly -/5k.!*"" :arginal contribution to roadway safety possibly resulting from system of spot checks cannot ustify sub ecting every occupant of every vehicle on the roads to a seiFure, limited in magnitude compared to other intrusions but nonetheless constitutionally cogniFable, at the unbridled discretion of law'enforcement officials. U.S.3.;.3onst. ;mends. /, */. 081 Auto!o8&/e" 48A 349$9' /+; ;utomobiles /+;?II Dffenses /+;?II!%" )rosecution /+;k-/5 ;rrest, Stop, or Inquiry7 %ail or 8eposit /+;k-/5!5" k. 4oadblock, checkpoint, or routine or random stop. :ost 3ited 3ases !(ormerly -/5k.!*"" Gxcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise sub ect to seiFure for violation of law, $$stopping an automobile and detaining the driver in order to check his driverLs license and the registration of the automobile are unreasonable under the (ourth ;mendment. U.S.3.;.3onst. ;mend. /. ; patrolman in a police cruiser stopped an automobile occupied by respondent and seiFed marihuana in plain view on the car floor. 4espondent was subsequently indicted for illegal possession of a controlled substance. ;t a hearing on respondentLs motion to suppress the marihuana, the patrolman testified that prior to stopping the vehicle he had observed neither traffic or equipment violations nor any suspicious activity, and that he made the stop only in order to check the driverLs license and the carLs registration. #he patrolman was not acting pursuant to any standards, guidelines, or procedures pertaining to document spot checks, promulgated by either his department or the State ;ttorney Ceneral. #he trial court granted the motion to suppress, finding the stop and detention to have been wholly capricious and therefore violative of the (ourth ;mendment. #he 8elaware Supreme 3ourt affirmed. Held) *. #his 3ourt has urisdiction in this case even though the 8elaware Supreme 3ourt held that the stop at issue not only violated the (ederal 3onstitution but also was impermissible under the 8elaware 3onstitution. #hat courtLs opinion shows that even if the State 3onstitution would have provided an adequate basis for the udgment below, the court did not intend to rest its decision independently on the State 3onstitution, its holding instead depending upon its view of the reach of the (ourth and (ourteenth ;mendments. )p. *-5,X*-52. 0. Gxcept where there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise sub ect to seiFure for violation of law, stopping an automobile and detaining the driver in order to check his driverLs license and the registration of the automobile are unreasonable under the (ourth ;mendment. )p. *-52X*/6*. $$!a" Stopping an automobile and detaining its occupants constitute a IseiFureJ within the meaning of the (ourth and (ourteenth ;mendments, even though the purpose of the stop is limited and the resulting detention quite brief. #he permissibility of a particular law enforcement practice is udged by balancing its intrusion on the individualLs (ourth ;mendment interests against its promotion of legitimate governmental interests. )p. *-52X*-5.. (#49 b" #he StateLs interest in discretionary spot checks as a means of ensuring the safety of its roadways does not outweigh the resulting intrusion on the privacy and security of the persons detained. Civen the physical and

psychological intrusion visited upon the occupants of a vehicle by a random stop to check documents, cf. (nited States v! Brignoni9Ponce" /00 U.S. +.-, 5, S.3t. 0,./, /, 1.Gd.0d 26.7 (nIIited States v! 'artine,9Fuerte" /0+ U.S. ,/-, 52 S.3t. -6./, /5 1.Gd.0d ***2, the marginal contribution to roadway safety possibly resulting from a system of spot checks cannot ustify sub ecting every occupant of every vehicle on the roads to a seiFure at the unbridled discretion of law enforcement officials. )p. *-5.X*/66. !c" ;n individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are sub ect to government regulation. )eople are not ((1394 shorn of all (ourth ;mendment protection when they step from their homes onto the public sidewalk7 nor are they shorn of those interests when they step from the sidewalks into their automobiles. )p. */66X*/6*. !d" #he holding in this case does not preclude 8elaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Buestioning of all oncoming traffic at roadblock'type stops is one possible alternative. ). */6*. -+0 ;.0d *-,5, affirmed. (#50 :r. <ustice &HI#G delivered the opinion of the 3ourt. #he question is whether it is an unreasonable seiFure under the (ourth and (ourteenth ;mendments to stop an automobile, being driven on a public highway, for the purpose of checking the driving license of the operator and the registration of the car, $$where there is neither probable cause to believe nor reasonable suspicion that the car is being driven contrary to the laws governing the operation of motor vehicles or that either the car or any of its occupants is sub ect to seiFure or detention in connection with the violation of any other applicable law. I ;t .@06 p. m. on Hovember -6, *5.2, a Hew 3astle 3ounty, 8el., patrolman in a police cruiser stopped the automobile occupied by respondent.(H* #he patrolman smelled marihuana smoke as he was walking toward the stopped vehicle, and he seiFed marihuana in plain view on the car floor. 4espondent was subsequently indicted for illegal possession of a controlled substance. ;t a hearing on respondentLs motion to suppress the marihuana seiFed as a result of the stop, the patrolman testified that prior to stopping the vehicle he had observed neither traffic or equipment violations nor any suspicious activity, and that he made the stop only in order to check the driverLs license and registration. #he patrolman was not acting pursuant to any standards, guidelines, or procedures pertaining to document spot checks, promulgated by either his department or the State ;ttorney Ceneral. 3haracteriFing the stop as Iroutine,J the patrolman explained, II saw the car (#51 in the area and wasnLt answering any complaints, so I decided to pull them off.J ;pp. ;5. #he trial court granted the motion to suppress, finding the stop and detention to have been wholly capricious and therefore violative of the (ourth ;mendment. (H*. In its opinion, the 8elaware Supreme 3ourt referred to respondent as the operator of the vehicle, see -+0 ;.0d *-,5, *-2* !*5.+". However, the arresting officer testified@ II donLt believe MrespondentN was the driver. . . . ;s I recall, he was in the back seat . . . ,J ;pp. ;*07 and the trial court in its ruling on the motion to suppress referred to respondent as one of the four IoccupantsJ of the vehicle, id!" at ;*.. #he vehicle was registered to respondent. Id!" at ;*6. #he 8elaware Supreme 3ourt affirmed, noting first that IMtNhe issue of the legal validity of systematic, roadblock'type stops of a number of vehicles for license and vehicle registration check is not now before the 3ourt,J -+0 ;.0d *-,5, *-20 !*5.+" !emphasis in original". #he court held that Ia random stop of a motorist in the absence of specific articulable facts which ustify the stop by indicating a reasonable suspicion that a violation of the law has occurred is constitutionally impermissible and violative of the (ourth and (ourteenth ;mendments to the United States 3onstitution.J Id!, at *-2/. &e granted certiorari to resolve the conflict between this decision, which is in accord with decisions in five other urisdictions,(H0 and the contrary determination in ((1395 six urisdictions (H- that the (ourth ;mendment does not prohibit the kind of automobile stop that occurred here. /-5 U.S. +*2, 55 S.3t. .2, ,+ 1.Gd.0d *6. !*5.+". (H0. (nited States v! 'ontgomer+" *+0 U.S.;pp.8.3. /02, ,2* (.0d +., !*5.." 7 People v! Ingle" -2 H.O.0d /*-, -25 H.O.S.0d 2., --6 H.G.0d -5 !*5.,"7 State v! /choa" 0- ;riF.;pp. ,*6, ,-/ ).0d //*

!*5.,", revLd on other grounds, **0 ;riF. ,+0, ,// ).0d *65. !*5.2"7 1ommonwealth v! Swanger" /,- )a. *6., -6. ;.0d +., !*5.-"7 (nited States v! 0icholas" //+ (.0d 200 !3;+ *5.*". See also (nited States v! 1upps" ,6- (.0d 0.. !3;2 *5./". (H-. State v! Holm$erg" *5/ Heb. --., 0-* H.&.0d 2.0 !*5.,"7 State v! &llen" 0+0 H.3. ,6-, *5/ S.G.0d 5 !*5.-"7 Palmore v! (nited States" 056 ;.0d ,.- !8.3.;pp.*5.0", affLd on urisdictional grounds only, /** U.S. -+5, 5- S.3t. *2.6, -2 1.Gd.0d -/0 !*5.-"7 Leonard v! State" /52 S.&.0d ,.2 !#ex.3r.;pp.*5.-"7 (nited States v! 5enkins" ,0+ (.0d .*- !3;*6 *5.,"7 '+ricks v! (nited States" -.6 (.0d 56* !3;,", cert. dismissed, -+2 U.S. *6*,, +. S.3t. *-22, *+ 1.Gd.0d /./ !*52.".

At p. 7=3,
III M0NM-NM/N #he (ourth and (ourteenth ;mendments are implicated in this case because stopping an automobile and detaining its occupants constitute a IseiFureJ within the meaning of those ;mendments, even though the purpose of the stop is limited and the resulting detention quite brief. (nited States v! 'artine,9Fuerte" /0+ U.S. ,/-, ,,2X,,+, 52 S.3t. -6./, -6+0X-6+-, /5 1.Gd.0d ***2 !*5.2"7 (nited States v! Brignoni9Ponce" /00 U.S. +.-, +.+, 5, S.3t. 0,./, 0,.+, /, 1.Gd.0d 26. !*5.,"7 cf. Terr+ v! /hio" -50 U.S. *, *2, ++ S.3t. *+2+, *+.., 06 1.Gd.0d ++5 !*52+". #he essential purpose of the proscriptions in the (ourth ;mendment is to impose a standard (#54 of IreasonablenessJ (H2 upon the exercise of discretion by government officials, including law enforcement agents, in order I =to safeguard the privacy and security of individuals against arbitrary invasions . . . .> J 'arshall v! BarlowOs" Inc!" /-2 U.S. -6., -*0, 5+ S.3t. *+*2, *+06 !*5.+", quoting 1amara v! 'unicipal 1ourt" -+. U.S. ,0-, ,0+, +. S.3t. *.0., *.-6, *+ 1.Gd.0d 5-6 !*52.".(H. #hus, the permissibility of a particular law enforcement practice is udged by balancing its intrusion on the individualLs (ourth ;mendment interests against its promotion of legitimate governmental interests.(H+ Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against Ian ob ective standard,J (H5 whether this be probable cause (H*6 or a less stringent test.(H** In those situations in which the balance of interests precludes insistence upon Isome quantum (#55 of individualiFed suspicion,J (H*0 other safeguards are generally relied upon ((1397 to assure that the individualLs reasonable expectation of privacy is not Isub ect to the discretion of the official in the field,J 1amara v! 'unicipal 1ourt" -+. U.S., at ,-0, +. S.3t., at *.--. See id!" at ,-/X,-,, +. S.3t. at *.--X*.-/7 'arshall v! BarlowOs" Inc!" supra" /-2 U.S. at -06X-0*, 5+ S.3t. at *+0/X*+0,7 (nited States v! (nited States #istrict 1ourt" /6. U.S. 05., -00X-0-, 50 S.3t. 0*0,, 0*-5, -0 1.Gd.0d .,0 !*5.0" !requiring warrants". (H2. See 'arshall v! BarlowOs" Inc!" /-2 U.S. -6., -*,, 5+ S.3t. *+*2, *+00 !*5.+" 7 (nited States v! Brignoni9Ponce" /00 U.S. +.-, +.+, 5, S.3t. 0,./, 0,.+, /, 1.Gd.0d 26. !*5.," 7 1ad+ v! #om$rowski" /*- U.S. /--, /-5, 5- S.3t. 0,0-, 0,0., -. 1.Gd.0d .62 !*5.-"7 Terr+ v! /hio" -50 U.S. *, 06X0*, ++ S.3t. *+2+, *+.5, 06 1.Gd.0d ++5 !*52+"7 1amara v! 'unicipal 1ourt" -+. U.S. ,0-, ,-5, +. S.3t. *.0., *.-2, *+ 1.Gd.0d 5-6 !*52.". (H.. See also (nited States v! 'artine,9Fuerte" /0+ U.S. ,/-, ,,/, 52 S.3t. -6./, -6+*, /5 1.Gd.0d ***2 !*5.2"7 (nited States v! /rti," /00 U.S. +5*, +5,, 5, S.3t. 0,+,, 0,++, /, 1.Gd.0d 20- !*5.,"7 &lmeida9 Sanche, v! (nited States" /*- U.S. 022, 0.6, 5- S.3t. 0,-,, 0,-+, -. 1.Gd.0d ,52 !*5.-" 7 Beck v! /hio" -.5 U.S. +5, 5., +, S.3t. 00-, 00+, *- 1.Gd.0d */0 !*52/"7 'c#onald v! (nited States" --, U.S. /,*, /,,X /,2, 25 S.3t. *5*, *5-, 5- 1.Gd. *,- !*5/+". (H+. See, e! g!" (nited States v! .amse+" /-* U.S. 262, 2*2X2*5, 5. S.3t. *5.0, *5.5X*5+6, ,0 1.Gd.0d 2*0 !*5.."7 (nited States v! 'artine,9Fuerte" supra" /0+ U.S. at ,,,, 52 S.3t. at -6+*7 cases cited in n. 2, supra! (H5. Terr+ v! /hio" supra" -50 U.S. at 0*, ++ S.3t. at *+2+. See also Scott v! (nited States" /-2 U.S. *0+, *-., 5+ S.3t. *.*., *.0-, ,2 1.Gd.0d *2+ !*5.+"7 Beck v! /hio" supra" -.5 U.S. at 52X5., +, S.3t. at 00+. (H*6. See, e! g!" (nited States v! Santana" /0. U.S. -+, 52 S.3t. 0/62, /5 1.Gd.0d -66 !*5.2" 7 (nited States v! -atson" /0- U.S. /**, 52 S.3t. +06, /2 1.Gd.0d ,5+ !*5.2" 7 er v! 1alifornia" -./ U.S. 0-, +-

S.3t. *20-, *6 1.Gd.0d .02 !*52-" !warrantless arrests requiring probable cause"7 (nited States v! /rti," supra7 -arden v! Ha+den" -+. U.S. 05/, +. S.3t. *2/0, *+ 1.Gd.0d .+0 !*52." 7 1arroll v! (nited States" 02. U.S. *-0, /, S.3t. 0+6, 25 1.Gd. ,/- !*50," !warrantless searches requiring probable cause". See also *erstein v! Pugh" /06 U.S. *6-, 5, S.3t. +,/, /- 1.Gd.0d ,/ !*5.,". (H**. See Terr+ v! /hio" supra% (nited States v! Brignoni9Ponce" supra! In addition, the &arrant 3lause of the (ourth ;mendment generally requires that prior to a search a neutral and detached magistrate ascertain that the requisite standard is met, see, e! g!" 'ince+ v! &ri,ona" /-. U.S. -+,, 5+ S.3t. 0- !*5.+". (H*0. (nited States v! 'artine,9Fuerte" supra" /0+ U.S. at ,26, 52 S.3t. at -6+/. In this case, however, the State of 8elaware urges that patrol officers be sub ect to no constraints in deciding which automobiles shall be stopped for a license and registration check because the StateLs interest in discretionary spot checks as a means of ensuring the safety of its roadways outweighs the resulting intrusion on the privacy and security of the persons detained. I? &e have only recently considered the legality of investigative stops of automobiles where the officers making the stop have neither probable cause to believe nor reasonable suspicion that either the automobile or its occupants are sub ect to seiFure under the applicable criminal laws. In (nited States v! Brignoni9Ponce" supra" %order )atrol agents conducting roving patrols in areas near the international border asserted statutory authority to stop at random any vehicle in order to determine whether it contained illegal aliens or was involved in smuggling operations. #he practice was held to violate the (ourth ;mendment, but the 3ourt did not invalidate all warrantless automobile stops upon less than probable cause. Civen Ithe importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border,J /00 U.S. at ++*, 5, S.3t. at 0,+6, the 3ourt analogiFed the roving'patrol stop to the on'the'street encounter addressed in Terr+ v! /hio" supra" and held@ IGxcept at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are (#5# aware of specific articulable facts , together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.J /00 U.S., at ++/, 5, S.3t., at 0,+0 !footnote omitted". %ecause Ithe nature of illegal alien traffic and the characteristics of smuggling operations tend to generate articulable grounds for identifying violators,J id!, at ++-, 5, S.3t. at 0,+*, Ia requirement of reasonable suspicion for stops allows the Covernment adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference.J I$id! #he constitutionality of stops by %order )atrol agents was again before the 3ourt in (nited States v! 'artine,9 Fuerte" supra, in which we addressed the permissibility of checkpoint operations . #his practice involved slowing all oncoming traffic Ito a virtual, if not a complete, halt,J /0+ U.S., at ,/2, 52 S.3t., at -6.+, at a highway roadblock, and referring vehicles chosen at the discretion of %order )atrol agents to an area for secondary inspection. See id!, at ,/2, ,,+, 52 S.3t., at -6.., -6+-. 4ecogniFing that the governmental interest involved was the same as that furthered by roving'patrol stops, the 3ourt nonetheless sustained the constitutionality of the %order )atrolLs checkpoint operations. #he crucial distinction was the lesser intrusion upon the motoristLs (ourth ;mendment interests@ IM#heN ob ective intrusionSthe stop itself, the questioning, and the visual inspectionSalso existed in roving' patrol stops. %ut we view checkpoint stops in a different light because the sub ective intrusionSthe generating of concern or even fright on the part of lawful travelersSis appreciably less in the case of a checkpoint stop.J Id!, at ,,+, 52 S.3t. at -6+-. ;lthough not dispositive,(H*- these decisions undoubtedly provide (#57 guidance in balancing ((1398 the public interest against the individualLs (ourth ;mendment interests implicated by the practice of spot checks such as

occurred in this case. &e cannot agree that stopping or detaining a vehicle on an ordinary city street is less intrusive than a roving'patrol stop on a ma or highway and that it bears greater resemblance to a permissible stop and secondary detention at a checkpoint near the border. In this regard, we note that Brignoni9Ponce was not limited to roving'patrol stops on limited'access roads, but applied to any roving'patrol stop by %order )atrol agents on any type of roadway on less than reasonable suspicion. See /00 U.S. at ++0X++-, 5, S.3t. at 0,+6X0,+*7 (nited States v! /rti,, /00 U.S. +5*, +5/, 5, S.3t. 0,+,, 0,+., /, 1.Gd.0d 20- !*5.," . &e cannot assume that the physical and psychological intrusion visited upon the occupants of a vehicle by a random stop to check documents is of any less moment than that occasioned by a stop by border agents on roving patrol. %oth of these stops generally entail law enforcement officers signaling a moving automobile to pull over to the side of the roadway, by means of a possibly unsettling show of authority. %oth interfere with freedom of movement, are inconvenient, and consume time. %oth may create substantial anxiety. (or (ourth ;mendment purposes, we also see insufficient resemblance between sporadic and random stops of individual vehicles making their way through city traffic and those stops occasioned by roadblocks where all vehicles are brought to a halt or to a near halt, and all are sub ected to a show of the police power of the community. I;t traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officersL authority, and he is much less likely to be frightened or annoyed by the intrusion.J Id!, /00 U.S., at +5/X+5,, 5, S.3t., at 0,++, quoted in (nited States v! 'artine,9Fuerte, /0+ U.S., at ,,+, 52 S.3t., at -6+-. (H*-. In addressing the constitutionality of %order )atrol practices, we reserved the question of the permissibility of state and local officials stopping motorists for document questioning in a manner similar to checkpoint detention, see /0+ U.S., at ,26 n. */, 52 S.3t., at -6+/, or roving'patrol operations, see (nited States v! Brignoni9Ponce, /00 U.S., at ++- n. +, 5, S.3t., at 0,+* n. +.

At p. 77$,
M2N #he marginal contribution to roadway safety possibly resulting from a system of spot checks cannot ustify sub ecting every occupant of every vehicle on the roads to a seiFureSlimited in magnitude compared to other intrusions but nonetheless constitutionally cogniFableSat the unbridled discretion of law enforcement officials. #o insist neither upon an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and ob ective standard or rule to govern the exercise of discretion Iwould invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches . . . .J Terr+ v! /hio, -50 U.S., at 00, ++ S.3t., at *++6. %y hypothesis, stopping apparently safe drivers is necessary only because the danger presented by some drivers is not observable at the time of the stop. &hen there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations (H0/Sor other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered S we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. #his kind of standardless and unconstrained discretion is the evil the 3ourt has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent. &lmeida9Sanche, v! (nited States, /*- U.S. 022, 0.6, 5- S.3t. 0,-,, 0,-+, -. 1.Gd.0d ,52 !*5.-"7 1amara v! 'unicipal 1ourt, -+. U.S., at ,-0X,--, +. S.3t., at *.--. (H0/. See, e! g!" EE /*6*X/*55% !*5./ and Supp. *5..". (##2 ?I M.N #he Igrave dangerJ of abuse of discretion, (nited States v! 'artine,9Fuerte, /0+ U.S., at ,,5, 52 S.3t., at -6+-, does not disappear simply because the automobile is sub ect to state regulation resulting in numerous instances of police'citiFen contact, 1ad+ v! #om$rowski, /*- U.S. /--, //*, 5- S.3t. 0,0-, 0,0+, -. 1.Gd.0d .62 !*5.-". Dnly last #erm we pointed out that Iif the government intrudes . . . the privacy interest suffers whether the governmentLs motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards.J 'arshall v! BarlowOs" Inc!, /-2 U.S., at -*0X-*-, 5+ S.3t., at *+06. #here are certain Irelatively unique circumstances,J id!, at -*-, 5+ S.3t., at *+06, in which consent to regulatory restrictions is presumptively concurrent with participation in the regulated enterprise. See (nited States v! Biswell, /62 U.S. -**, 50 S.3t. *,5-, -0 1.Gd.0d +. !*5.0" !federal regulation of firearms"7 1olonnade 1atering 1orp! v! (nited States, -5. U.S. .0, 56 S.3t. ../, 0, 1.Gd.0d 26 !*5.6" !federal regulation of liquor". Dtherwise, regulatory inspections unaccompanied by any quantum of individualiFed, articulable suspicion must be undertaken pursuant to previously specified Ineutral criteria.J

'arshall v! BarlowOs" Inc!" supra, /-2 U.S., at -0-, 5+ S.3t., at *+02. ;n individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are sub ect to government regulation. (H0, ;utomobile travel ((1401 is a basic, pervasive, and often necessary mode of transportation to and from oneLs home, workplace, and leisure activities. :any people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. &ere the (##3 individual sub ect to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the (ourth ;mendment would be seriously circumscribed. ;s Terr+ v! /hio" supra, recogniFed, people are not shorn of all (ourth ;mendment protection when they step from their homes onto the public sidewalks. Hor are they shorn of those interests when they step from the sidewalks into their automobiles. See &dams v! -illiams, /6. U.S. */-, */2, 50 S.3t. *50*, *50-, -0 1.Gd.0d 2*0 !*5.0". (H0,. 3f. 'arshall v! BarlowOs" Inc!, /-2 U.S. -6., 5+ S.3t. *+*2, ,2 1.Gd.0d -6, !*5.+" !warrant required for federal inspection under interstate commerce power of health and safety of workplace"7 See v! Seattle, -+. U.S. ,/*, +. S.3t. *.-., *+ 1.Gd.0d 5/- !*52." !warrant required for inspection of warehouse for municipal fire code violations"7 1amara v! 'unicipal 1ourt" -+. U.S. ,0-, +. S.3t. *.0., *+ 1.Gd.0d 5-6 !*52." !warrant required for inspection of residence for municipal fire code violations". ?II M+NM5N ;ccordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise sub ect to seiFure for violation of law, stopping an automobile and detaining the driver in order to check his driverLs license and the registration of the automobile are unreasonable under the (ourth ;mendment. #his holding does not preclude the State of 8elaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. (H02 Buestioning of all oncoming traffic at roadblock'type stops is one possible alternative. &e hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. #he udgment below is affirmed.

*ase authority that there is a constitutional right to !e free fro !ad faith prosecution. Bad faith prosecution has however !een held repeatedly to cause sufficient irrepara!le har to support federal in#unction of a state prosecution. Do !rows"i v. @fister 38& (.). '%9, '9&, )haw v. 5arrison '7% f.2d $$3, :ounger v. Iarris '&$ (.). 3%. Fight to access to courts *hristopher v. Iar!ury =37 (.). '&3

3e+ereaux +. A88e4, 2#3 -.3d 1070, 01 Ca/. 3a&/4 7p. Ser+. 7797, 2001 3a&/4 .ourna/ 3.A.R. 9##9 $9t) C&r. $9a").', Sep 05, 2001' 051 C&+&/ R&g)t" 78 137#$2'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-.0 )rivilege or Immunity7 Cood (aith and )robable 3ause .+k*-.2 Covernment ;gencies and Dfficers .+k*-.2!0" k. Cood (aith and 4easonableness7 Knowledge and 3larity of 1aw7 :otive and Intent, in Ceneral. :ost 3ited 3ases !(ormerly .+k0*/!0""

Con"t&tut&ona/ La* 92

4522

50 3onstitutional 1aw 50PP?II 8ue )rocess 50PP?II!H" 3riminal 1aw 50PP?II!H"- 1aw Gnforcement 50k/,0* 3onduct of )olice and )rosecutors in Ceneral 50k/,00 k. In Ceneral. :ost 3ited 3ases !(ormerly 50k0,..," $$#here is a clearly established constitutional due process right not to be sub ected to criminal charges on the basis of false evidence that was deliberately fabricated by the government. U.S.3.;. 3onst.;mend. */.

Ro!a Con"t. Co. +. aRu""o, 9# -.3d 5##, 575, #5 2 A USL9 223#, R<C7 2u".3&"p.,u&de 9125 $1"t C&r. $R.<.', Sep 27, 199#' 8evelopers brought civil rights and 4acketeer Influenced and 3orrupt DrganiFations ;ct !4I3D" action against town officials. #he United States 8istrict 3ourt for the 8istrict of 4hode Island, (rancis <. %oyle, Senior 8istrict <udge, 562 (.Supp. .+, denied motion of plaintiffLs attorney to appear pro hac vice and dismissed claims, and plaintiffs appealed. #he 3ourt of ;ppeals, #orruella, 3hief <udge, held that@ !*" even if there is Iinnocent partyJ requirement for 4I3D plaintiff, fact that plaintiffs paid bribes to town officials did not preclude finding that they were innocent parties based on evidence that bribes were coerced7 !0" fact finder could determine that bribes were extorted pursuant to town custom7 and !-" court stated reasons did not support denial of motion to appear pro hac vice. 4eversed and remanded. 081 C&+&/ R&g)t" 78 1395$1'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-50 )leading .+k*-5, )articular 3auses of ;ction .+k*-5,!*" k. In Ceneral. :ost 3ited 3ases !(ormerly .+k0-,!*"" 8evelopersL allegation that mayor, town councilmen, and others operated de facto government which controlled town for more than a decade, routinely engaging in bribery, extortion, corruption, and other unlawful activities, was sufficient to state claim for denial of civil rights based on unconstitutional policy or custom of the town government . /0 U.S.3.;. E *5+-.

At p. =%=,
3. :)e C&+&/ R&g)t" C/a&! #he district court also dismissed the plaintiffsL claim that the individual defendants and the #own acted under color of state authority and municipal practice, and deprived the plaintiffs of property and rights in violation of /0 U.S.3. E *5+-. Section *5+- authoriFes actions for equitable relief andTor damages against IMeNvery person who under color of any ... custom or usage, of any State or #erritory ... sub ects or causes to be sub ected any citiFen of the United States or other person ... to the deprivation of any rights, privileges, or immunities secured by the 3onstitution and laws.J /0 U.S.3. E *5+-. (urthermore, those who commit actionable wrongs under that section Ishall be liable to the party in ured in an action at law, suit in equity, or other proper proceeding in redress.J Id! In construing the terms IcustomJ and Iusage,J the Supreme 3ourt has instructed that

3ongress included customs and usages Min section *5+-N because of the persistent and widespread discriminatory practices of state officials.... ;lthough not authoriFed by written law, such practices of state officials could well be so permanent and well settled as to constitute a Icustom or usageJ with the force of law. 'onell v! #epartment of Social Servs! of 0ew York" /-2 U.S. 2,+, 25*, 5+ S.3t. 06*+, 06-2, ,2 1.Gd.0d 2** !*5.+" !quoting &dickes v! S!H! ress 4 1o!" -5+ U.S. *//, *2.'2+, 56 S.3t. *,5+, *2*-'*/, 02 1.Gd.0d */0 !*5.6""7 see Bordanaro v! 'cLeod" +.* (.0d **,*, **,2 !*st 3ir.*5+5". 3ourts have set forth two requirements for maintaining a section *5+- action grounded upon an unconstitutional municipal custom. $$(irst, the custom or practice Imust be attributable to the municipality.J Id! at **,2. #hat is, Iit must be so well'settled and widespread that the policymaking officials of the municipality can be said to have either actual or constructive knowledge of it yet did nothing to end the practice.J Id! $$Second, Ithe custom must have been the cause of and the moving force behind the deprivation of constitutional rights.J Id! #he district court concluded that in the facts alleged, Ithere MwasN no evidence that the #own M N had any policy endorsing or advocating extortion and the acceptance of bribes by town officials.J .oma 1onstr! 1o!" 562 (.Supp. at +-. (urthermore, the district court went on to state that, even assuming Ithat there was a de facto municipal policy of extortion promulgated by a4usso and perpetrated by the other named defendants,J the plaintiffs could not succeed in their section *5+- claim because the alleged policy was not the cause of any constitutional harm. Id! Hoting that there must be a Idirect causal (57# linkJ between a municipal policy or custom and the alleged constitutional violation to find section *5+- liability, id! at +/ !quoting 1it+ of 1anton v! Harris" /+5 U.S. -.+, -+,, *65 S.3t. **5., *06-, *6- 1.Gd.0d /*0 !*5+5"", the district court concluded that Iin this case, the =causal link> or =moving force> behind any perceived constitutional violations is the plaintiffsL ... continual, voluntary payment of bribes to the defendants,J id! (or the reasons we have stated in our discussion regarding bribery and coercive extortion, we think a finder of fact could reasonably infer that the plaintiffsL payments were made pursuant to coercive extortion, and thus did not necessarily constitute Ivoluntary payment of bribesJ with corrupt intent. ;t this stage, we must resolve reasonable inferences in favor of the plaintiffs. #hus, we conclude that the plaintiffs could show a direct causal link between the defendantsL coercive extortion and the plaintiffsL losses. M+N ;s a result, we turn to the question of whether coercive extortion, if found, could be attributed to some de facto municipal policy. I;n unconstitutional policy or custom may be inferred from a single decision or act ... MbutN the isolated action must be taken by a municipal official with =final policy'making authority> in the relevant area of the cityLs business.J .odrRHue, v! Furtado" ..* (.Supp. *0/,, *0,. !8.:ass.*55*" !citations omitted". However, IMtNhe fact that a particular official'even a policymaking official'has discretion in the exercise of a particular function does not, without more, give rise to municipal liability based on an exercise of that discretion.J Pem$aur v! 1it+ of 1incinnati" /., U.S. /25, /+*'+0, *62 S.3t. *050, *055, +5 1.Gd.0d /,0 !*5+2" !%rennan, <., plurality opinion". In their pleadings, the plaintiffs have alleged that a4usso as :ayor, %en amin Qanni as a town councilman, and others operated a de facto government which controlled the #own for more than a decade, routinely engaging in bribery, extortion, corruption and other unlawful activities. &hile a showing that a4usso acted illegally in the exercise of his discretion as :ayor might not by itself give rise to municipal liability, we think that under these pleadings, the plaintiffs could indeed prove a set of facts from which a trier of fact could infer an unconstitutional policy or custom with respect to the #ownLs government. (or example, a fact finder could conclude that extortion of outsiders, businessmen, or developers, if proven, was I =the way things are done and have been done> J in the #own. See i$$e v! 1it+ of Springfield" ... (.0d +6*, +62 !*st 3ir.*5+," !quoting *randstaff v! 1it+ of Borger" .2. (.0d *2*, *.* !,th 3ir.*5+,", cert! denied" /+6 U.S. 5*2, *6. S.3t. *-25, 5/ 1.Gd.0d 2+2 !*5+."", cert! granted" /., U.S. *62/, *62 S.3t. *-./, +5 1.Gd.0d 266 !*5+2", cert! dismissed" /+6 U.S. 0,., *6. S.3t. ***/, 5/ 1.Gd.0d 05- !*5+.". ;s a result, we reverse the district courtLs dismissal of the plaintiffsL section *5+- claim on the pleadi

*ivilBrightsBfedBre ediesBinBgeneralBlia!BofBpu!lBofficBvicBlia!BOBres pBsuperBsupervisBlia!BinBgeneralBcaBdigest.doc

M3ited *,, times for this legal issueN )reschooler II v. 3lark 3ounty School %d. of #rustees, /.5 (.-d **., 3.;.5.Hev.,066. ; supervisor is liable for the unconstitutional acts of his subordinates if the supervisor participated in or directed the violations, or knew of the violations of subordinates and failed to act to prevent them. /0 U.S.3.;. E *5+- . M3ited *0, times for this legal issueN 3orales v. %ennett, ,2. (.-d ,,/ 3.;.5.3al.,0665 In a E *5+- claim, a supervisor is liable for acts of his subordinates if supervisor participated in or directed violations, or knew of violations of subordinates and failed to act to prevent them. /0 U.S.3.;. E *5+- . M3ited *0, times for this legal issueN Harris v. 4oderick, *02 (.-d **+5 3.;.5.Idaho,*55. Supervisor is only liable for constitutional violations of his subordinates if supervisor participated in or directed violations, or knew of violations and failed to act to prevent them. M3ited +6 times for this legal issueN 3unningham v. Cates, 005 (.-d *0.* 3.;.5.3al.,0666 Supervisors can be held liable in E *5+- actions for@ !*" their own culpable action or inaction in the training, supervision, or control of subordinates7 !0" their acquiescence in the constitutional deprivation of which a complaint is made7 or !-" for conduct that showed a reckless or callous indifference to the rights of others. /0 U.S.3.;. E *5+M3ited /5 times for this legal issueN :enotti v. 3ity of Seattle, /65 (.-d ***3.;.5.&ash.,066, Section *5+- liability is imposed against supervisory official in his individual capacity for his own culpable action or inaction in training, supervision, or control of his subordinates, for his acquiescence in constitutional deprivations of which complaint is made, or for conduct that showed reckless or callous indifference to rights of others. /0 U.S.3.;. E *5+- . M3ited /, times for this legal issueN Starr v. %aca, 2,0 (.-d *060 3.;.5.3al.,06** ; supervisor can be liable under E *5+- in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates, for his acquiescence in the constitutional deprivation, or for conduct that showed a reckless or callous indifference to the rights of others. /0 U.S.3.;. E *5+- . M3ited 5 times for this legal issueN #ing v. U.S., 50. (.0d *,6/ 3.;.5.3al.,*55* Covernmental officer may be held liable for damages for constitutional wrongs engendered by his failure to adequately supervise or train his subordinates7 similarly, governmental entity may also be liable for due process violations which results in its failure to train its employees. U.S.3.;. 3onst.;mend. , . . Cunn&ng)a! +. ,ate", 229 -.3d 1271, 00 Ca/. 3a&/4 7p. Ser+. 7727, 2000 3a&/4 .ourna/ 3.A.R. 10,271, 2000 3a&/4 .ourna/ 3.A.R. 11,#01 $9t) C&r.$Ca/.', Sep 15, 2000' In separate lawsuits, plaintiffs sued city, mayor, police officers, police supervisors and commissioners, city council members, and city attorneys under E *5+-, alleging the defendants either used excessive force, acquiesced in

the use of excessive force, or engaged in an unconstitutional policy of indemnifying officers against punitive damage awards in excessive force cases. #he United States 8istrict 3ourt for the 3entral 8istrict of 3alifornia, <. Spencer 1etts, <., 5+5 (.Supp. *0,2 and 5+5 (.Supp. *020, denied motions by defendants, other than mayor, for summary udgment, and defendants appealed. #he 3ourt of ;ppeals, :agill, Senior 3ircuit <udge, held that@ !*" whether recovery was barred by Heck v! Humphre+ was not within collateral order doctrine7 !0" 3ourt of ;ppeals did not have pendent appellate urisdiction to review that issue or cityLs appeal7 !-" 3ourt of ;ppeals lacked urisdiction to review whether the officers who shot plaintiffs were entitled to qualified immunity7 !/" district court did not conduct required individualiFed analysis as to non'shooting officers7 !," officers were entitled to qualified immunity on claim that they participated in a Icourse of conductJ which included the use of I ammingJ suspects into confined spaces in an effort to provoke the use of force7 !2" officers, as witnesses, were absolutely immune from damages liability based on their testimony and any alleged conspiracy to commit per ury7 !." evidence was insufficient to support claim that officers fabricated evidence7 !+" 3ourt of ;ppeals lacked urisdiction to review denial of qualified immunity for police supervisors and commissioners7 !5" city council members were entitled to qualified immunity for decisions to indemnify officers against punitive damages7 and !*6" city attorneys were entitled to qualified immunity. ;ffirmed in part and reversed in part. 0111 Court" 10# 99$1' *62 3ourts *62II Gstablishment, DrganiFation, and )rocedure *62II!C" 4ules of 8ecision *62k55 )revious 8ecisions in Same 3ase as 1aw of the 3ase *62k55!*" k. In general. :ost 3ited 3ases ; district court has discretion to depart from the law of the case established by prior rulings if the first decision was clearly erroneous or a manifest in ustice would otherwise result. 0211 C&+&/ R&g)t" 78 137#$#'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-.0 )rivilege or Immunity7 Cood (aith and )robable 3ause .+k*-.2 Covernment ;gencies and Dfficers .+k*-.2!2" k. Sheriffs, police, and other peace officers. :ost 3ited 3ases !(ormerly .+k0*/!2"" Civen factual disputes as to whether police officers who shot plaintiff reasonably mistook him for a fleeing suspect who they knew to be armed and whether they shot plaintiff only after he moved his hand towards his waistband as if reaching for a gun, the shooting officers were not entitled to qualified immunity in E *5+- suit. /0 U.S.3.;. E *5+-. 0351 C&+&/ R&g)t" 78 1355

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-,- 1iability of )ublic Dfficials .+k*-,, k. ?icarious liability and respondeat superior in general7 supervisory liability in general. :ost 3ited 3ases !(ormerly .+k06.!0"" $$Supervisors can be held liable in E *5+- actions for@ !*" their own culpable action or inaction in the training, supervision, or control of subordinates7 !0" their acquiescence in the constitutional deprivation of which a complaint is made7 or !-" for conduct that showed a reckless or callous indifference to the rights of others. /0 U.S.3.;. E *5+-.

Lare? +. C&t4 o6 Lo" Ange/e", 94# -.2d #30, #45, 34 -ed. R. E+&d. Ser+. 1103 $9t) C&r.$Ca/.', Sep 27, 1991' ;lleged victims of police officersL use of exces "&+e 6or5e dur&ng "ear5) 8roug)t 5&+&/ r&g)t" a5t&on against officers, chief of police, and city. #he United States 8istrict 3ourt for the 3entral 8istrict of 3alifornia, 4obert :. #akasugi, <., entered udgment in favor of victims, and appeal was taken. #he 3ourt of ;ppeals, %oochever, 3ircuit <udge, held that@ !*" punitive damages assessed against officers were not excessive7 !0" proceeding to second phase of trial against police chief and city after damages were assessed against officers was appropriate7 !-" newspaper articles containing police chiefLs statements concerning value of broken nose were not admissible under residual exception to hearsay rule7 !/" evidence was sufficient to hold police chief liable in his individual and official capacity7 and !," evidence was sufficient to support award of punitive damages against police chief. ;ffirmed in part, reversed in part and remanded. 0151 C&+&/ R&g)t" 78 1358

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-,- 1iability of )ublic Dfficials .+k*-,+ k. 3riminal 1aw Gnforcement7 )risons. :ost 3ited 3ases !(ormerly *.6;k**0.*, *.6;k**0" 3ourse of proceedings in civil rights action arising from police officersL alleged use of excessive force during search of home reasonably indicated that city chief of police was being sued in his individual capacity, permitting initiation of second phase of trial to ad udicate individual liability and punitive damage claims against chief7 title of case named chief but did not refer to his official position or representative capacity, district court necessarily concluded that chief was sued in both individual and official capacities in denying dismissal motion prior to commencement of second phase, and plaintiffsL counsel expressly noted that chief was sued in his individual capacity in response to motion to dismiss. 0201 E+&den5e 157 318$1'

*,. Gvidence *,.IP Hearsay *,.k-*, Statements by )ersons Dther #han )arties or &itnesses *,.k-*+ &ritings *,.k-*+!*" k. In Ceneral. :ost 3ited 3ases Hewspaper articles reporting police chiefLs statements concerning value of broken nose were sufficiently trustworthy to satisfy requirements of residual exception to hearsay rule7 three independent newspapers attributed same quotations to police chief, and chief never disputed that he made statements. (ed.4ules Gvid.4ule +6-!0/", 0+ U.S.3.;. 0211 E+&den5e 157 318$1'

*,. Gvidence *,.IP Hearsay *,.k-*, Statements by )ersons Dther #han )arties or &itnesses *,.k-*+ &ritings *,.k-*+!*" k. In Ceneral. :ost 3ited 3ases Hewspaper articles reporting police chiefLs statement concerning value of broken nose did not satisfy Ibest evidenceJ requirement of residual exception to hearsay rule7 testimony from reporters themselves would have been better than admission of newspaper quotations. (ed.4ules Gvid.4ule +6-!0/", !0/"!;'3", 0+ U.S.3.;. 0221 -edera/ Court" 1702 89#.1

*.6% (ederal 3ourts *.6%?III 3ourts of ;ppeals *.6%?III!K" Scope, Standards, and Gxtent *.6%?III!K"2 Harmless Grror *.6%k+52 ;dmission of Gvidence *.6%k+52.* k. In Ceneral. :ost 3ited 3ases !(ormerly *.6%k+52" Grroneous admission of newspaper articles reporting police chiefLs statements concerning value of broken nose was sufficiently pre udicial to warrant reversal in civil rights action arising from city police officersL alleged use of excessive force during search of residence7 statements were among strongest evidence of chiefLs tolerance for, and endorsement of, his officersL use of excessive force, and statements in articles critical of ury created danger of inflaming ury. (ed.4ules Gvid.4ules *6-!a", +6-!0/", 0+ U.S.3.;.7 /0 U.S.3.;. E *5+-. 0241 C&+&/ R&g)t" 78 1412

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*/6+ ;dmissibility of Gvidence .+k*/*0 k. 3riminal 1aw Gnforcement7 )risons. :ost 3ited 3ases !(ormerly .+k0/*" Con"t&tut&ona/ La* 92 208#

50 3onstitutional 1aw 50P?III (reedom of Speech, Gxpression, and )ress 50P?III!?" <udicial )roceedings 50P?III!?"* In Ceneral 50k06+2 k. 3onduct of )roceedings in Ceneral. :ost 3ited 3ases !(ormerly 50k56.*!*"" (irst ;mendment did not make police chiefLs statements concerning value of broken nose inadmissible in civil rights action arising when city police officers allegedly used excessive force during search of home7 to extent chiefLs opinions shed light on operation, custom, or policy of his department, or on his ratification or condemnation of in urious acts, his statements could be used as evidence on issue of his liability and that of city. /0 U.S.3.;. E *5+-7 U.S.3.;. 3onst.;mend. *. 0251 C&+&/ R&g)t" 78 1354

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-,- 1iability of )ublic Dfficials .+k*-,/ k. In Ceneral. :ost 3ited 3ases !(ormerly .+k06.!*"" Dfficial liability may be imposed where first'time decision to adopt particular course of action is directed by governmentally authoriFed decision maker. /0 U.S.3.;. E *5+-. 02#1 C&+&/ R&g)t" 78 1358

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-,- 1iability of )ublic Dfficials .+k*-,+ k. 3riminal 1aw Gnforcement7 )risons. :ost 3ited 3ases

!(ormerly .+k06.!0"" $$s3ity police chief could be held liable in his individual capacity for alleged use of excessive force during search conducted by police officers if he set in motion series of acts by others, or knowingly refused to terminate series of acts by others, which he knew or reasonably should have known would cause others to inflict constitutional in ury. /0 U.S.3.;. E *5+-. 0271 C&+&/ R&g)t" 78 1358

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-,- 1iability of )ublic Dfficials .+k*-,+ k. 3riminal 1aw Gnforcement7 )risons. :ost 3ited 3ases !(ormerly .+k06.!0"" Gvidence that city police chief failed to discipline police officer for using excessive force during search was sufficient to hold him liable in his individual capacity in civil rights action arising from search. /0 U.S.3.;. E *5+-. 0281 766&5er" and ;u8/&5 E!p/o4ee" 283 119

0+- Dfficers and )ublic Gmployees 0+-III 4ights, )owers, 8uties, and 1iabilities 0+-k**5 k. ;ctions by or ;gainst Dfficers and Gmployees. :ost 3ited 3ases Suit against governmental officer in his or her official capacity is equivalent to suit against governmental entity itself. 0291 C&+&/ R&g)t" 78 1420

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*/*2 &eight and Sufficiency of Gvidence .+k*/06 k. 3riminal 1aw Gnforcement7 )risons. :ost 3ited 3ases !(ormerly .+k0/0!,"" Gvidence that police department procedures for investigating citiFen complaints of excessive use of force by police officers almost never resulted in discipline and that there was departmental policy or custom of resorting to use of excessive force while executing search warrants was sufficient to hold chief of police liable in his official capacity for in uries suffered when police officers allegedly used excessive force during search. /0 U.S.3.;. E *5+-. M0,N CatesLs official liability, on the other hand, is distinguished by the source of the constitutional harm7 it must be attributable to official policy or custom. See" e!g!" 1it+ of 1anton v! Harris" /+5 U.S. -.+, -+5, *65 S.3t. **5., *06,, *6- 1.Gd.0d /*0 !*5+5"7 (#4#Shaw v! 1alifornia #ept! of &lcoholic Beverage 1ontrol" .++ (.0d 266, 2*6 !5th 3ir.*5+2". #o the extent that the terms IpolicyJ and IcustomJ imply something beyond a single decision, official liability may also be imposed where a first'time decision to adopt a particular course of action is directed by a governmentally authoriFed decisionmaker. See Pem$aur v! 1it+ of 1incinnati" /., U.S. /25, /+*, *62 S.3t. *050, *055, +5 1.Gd.0d /,0 !*5+2". Gvidence that there was a custom or policy to use excessive force, for example, would be sufficient to warrant the imposition of official liability under 1anton and its progeny. ;lso, evidence that 3hief Cates, an authoriFed policymaker on police matters, see .eporterOs Transcript" 8ec. *@ , !Ithe 3hief of )olice is an official whose acts constitute final official policy of the 3ity of 1os ;ngelesJ", made, or ratified a decision that deprived plaintiffs of their constitutional rights would suffice for official liability under Pem$aur! See ;nnotation, -hat 1onstitutes Polic+ or 1ustom for Purposes of #etermining Lia$ilit+ of Local *overnment (nit (nder F= (!S!1!S! S 7>A<9 'odern 1ases" +* ;.1.4.(ed. ,/5, ,,+ !*5+." !I;ctions taken by officials ... with policymaking authority'typically defined to include actions by those individuals or entities whose actions are final'have generally been held to represent official policy for purposes of determining MmunicipalN liability.J".

!a". Individual capacit+ lia$ilit+ M02N #he district court correctly instructed the ury that it could find 3hief Cates liable in his individual capacity if he IsetM N in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he knMeNw or reasonably should MhaveN knowMnN, would cause others to inflict the constitutional in ury.J .eporterOs Transcript" 8ec. *@ ,'2. See also 'c.orie" .5, (.0d at .+-. Supervisory liability is imposed against a supervisory official in his individual capacity for his Iown culpable action or inaction in the training, supervision, or control of his subordinates,J 1la+ v! 1onlee" +*, (.0d **2/, **.6 !+th 3ir.*5+."7 for his I =acquiesce MnceN in the constitutional deprivations of which MtheN complaint is made,> J 'eade v! *ru$$s" +/* (.0d *,*0, *,0+ !*6th 3ir.*5++" !citation omitted"7 or for conduct that showed a I =reckless or callous indifference to the rights of others.> J Bordanaro" +.* (.0d at **2-. It was not plain error for the ury to find any one of these standards fulfilled. M0.N #he 1areFes alleged that, in his individual capacity, Cates was responsible for their constitutional deprivations because he condoned, ratified, and encouraged the excessive use of force. #heir expert witness, armed with both many years of practical police experience and empirical data on police department procedures and operations nationwide and in 1os ;ngeles specifically, testified that, had he been in 3hief CatesLs shoes, he would have disciplined the individual officers and would have established new procedures for averting the reoccurrence of similar excesses in the future. Oet, neither step was taken by Cates. Instead, he signed a letter informing <essie 1areF that none of his many complaints would be sustained, thereby ratifying the investigation into the 1areFesL complaint. #he uryLs verdict was not in plain error. !b". /fficial capacit+ lia$ilit+ M0+NM05N ; suit against a governmental officer in his official capacity is equivalent to a suit against the governmental entity itself. 'c.orie" .5, (.0d at .+-. #hus, Cates could have been found liable in his official capacity only if I = Ipolicy or customJ Mor a one'time decision by a governmentally authoriFed decisionmaker ! see Pem$aur" /., U.S. at /+* M*62 S.3t. at *055N " N ... played a part in the violation of federal law,> J 'c.orie" .5, (.0d at .+- !citation omitted"7 Shaw" .++ (.0d at 2*6. &e find that there was sufficient evidence to warrant a finding of official capacity liability. Cates is an official policymaker for the 3ity on police matters. .eporterOs Transcript" 8ec. *@ ,. See also Shaw" .++ (.0d at 2** !I;s to the 3ity, the policies of the )olice 8epartment became its policies because the policies set by the 8epartment (#47 and its 3hief =may be fairly said to represent official M3ityN policy> on police matters .J" !citation omitted". )rofessor (yfe testified that the 1areFesL complaint was investigated in accordance with 1;)8 policy or custom. )ursuant to it, the unit being investigated, 34;SH, was given the responsibility of passing upon the complaintsL many allegations, none of which were sustained. (yfe found this procedure improper. He concluded that the investigation IcontainMedN holesJ and inconsistencies Ithat should have been visible to any reasonable police administrator.J (or example, it relied in part upon testimony of an officer, Sergeant :aFur, to substantiate the officer defendantsL claims that they did not engage in excessive force, even though :aFur was not present during some of the relevant incidents. #he 1;)8Ls treatment of the 1areFesL complaint tended to corroborate (yfeLs testimony about 1;)8 complaint investigations in general. ;s we have indicated in our factual discussion, pursuant to his two'year study of 1;)8 complaints, which was unrebutted by defendants, (yfe concluded that it was Ialmost impossible for a police officer to suffer discipline as a result of a complaint lodged by a citiFen,J noting that it was as if Isomething has to be done on film for the department to buy the citiFenLs story.J #he ury was entitled to conclude that this evidence supported the 1areFesL theory that the 1;)8Ls disciplinary and complaint processes, executed by policy or custom, contributed to the police excesses complained of because the procedures made clear to officers that, at least in the absence of independent, third'party witnesses, they could get away with anything. Dfficer HolcombLs statement, II could blow your fucking head off right here and nobody can prove you did not try to do something,J made while Holcomb pointed his gun in <essieLs face, tended to corroborate this theory. ;side from these allegedly flawed procedures, there was evidence of a departmental policy or custom of resorting to the use of excessive force. #he ury properly could find such policy or custom from the failure of Cates to take any remedial steps after the violations. 'c.orie" .5, (.0d at .+/ !custom inferred from failure to reprimand or discharge"7 *randstaff" .2. (.0d at *.* !Isubsequent acceptance of dangerous recklessness by policymaker tends

to prove his preexisting disposition and polic+ J" !emphasis added". CatesLs statements, coming from a final policymaker on police matters, also properly could have been considered to represent the 1;)8Ls policy or custom of condonation of, and acquiescence in, the use of excessive force by its officers. ;dditionally, when questioned about the 1areFesL home being left Iturned upside down,J Cates testified that he believed officers were better off not trying to put things back in the place. Hotwithstanding CatesLs assertions that this constituted neither 1;)8 policy or custom, the ury could have found otherwise. Sergeant :aFur testified that in the hundreds of 1;)8 searches he witnessed, officers never put back displaced items. #he ury could have found that this substantiated the existence of 1;)8 custom. (urthermore, as Cates speaks for the 3ity on police matters, it was permissible for the ury to have concluded that his testimony, that officers are better off not trying to replace items after a search, represented 1;)8 custom. #his custom of treating search victimsL property with such disregard could have been used by the ury to bolster its conclusion that the 1;)8 engaged in unreasonable searches. #he uryLs verdict did not constitute plain error. !0". The 1it+ &ith respect to its liability for the 1areFesL constitutional in uries, the fate of the 3ity hinges on 3hief CatesLs official capacity liability. See .eporterOs Transcript" 8ec. *@ , !IMINf you find that the acts of the )olice 3hief in his official capacity deprived plaintiffs of their constitutional rights, the 3ity of 1os ;ngeles will be liable for such deprivations.J"7 Shaw" .++ (.0d at 2** !police department policies deemed city policies". See also *i$son v! 1it+ of 1hicago" 5*6 (.0d *,*6, *,*5 n. */ !.th 3ir.*556" !courtLs disposition of municipal (#48 liability claim pertained both to claim against the 3ity and claim against )olice Superintendent in his official capacity". Having found no plain error in the uryLs verdict on CatesLs official liability, we must find the same with respect to the 3ity. Ad&5>e" +. S. @. Are"" Q Co., 398 U.S. 144, 1#2, 90 S.Ct. 1598, 2# L.Ed.2d 142 $U.S. .Y., .un 01, 1970' ;ction by a white woman who had been denied service in defendantLs restaurant because she was in company of Hegroes to recover for deprivation of rights and conspiracy to deprive her of rights. #he United States 8istrict 3ourt for the Southern 8istrict of Hew Oork granted summary udgment for defendant with respect to conspiracy count and, at 0,0 (.Supp. */6, directed a verdict for defendant at close of plaintiffLs case on the substantive count, and plaintiff appealed. #he United States 3ourt of ;ppeals for the Second 3ircuit, /65 (.0d *0*, affirmed, and plaintiff petitioned for certiorari. #he Supreme 3ourt, :r. <ustice Harlan, held that the summary udgment was improper where defendantLs materials did not meet burden of negating plaintiffLs allegation that there was policeman in defendantLs store before acts charged and that plaintiff would make out claim under statute affording civil action for deprivation of rights by showing existence of state'enforced custom of segregating races in public eating places in city at time of incident in question and that defendantLs refusal to serve her was motivated by that state'enforced custom. <udgment reversed and case remanded. :r. <ustice %lack concurred, :r. <ustice %rennan concurred in part and dissented in part, and :r. <ustice 8ouglas dissented in part, and each filed an opinion. 0191 C&+&/ R&g)t" 78 1324

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-0- 3olor of 1aw .+k*-0/ k. In Ceneral. :ost 3ited 3ases !(ormerly .+k*52.*, .+k*52, .+k*-.,!*", .+k*" I3ustom or usage of a stateJ, for purpose of statute affording civil action to one deprived of rights under color of such custom or usage, must have force of law by virtue of persistent practices of state officials. /0 U.S.3.;. E *5+-. 0201 C&+&/ R&g)t" 78 132#$7'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-0- 3olor of 1aw .+k*-02 )articular 3ases and 3ontexts .+k*-02!." k. )ublic Support, 1icense, or 4egulation7 Utilities and :onopolies. :ost 3ited 3ases !(ormerly .+k*5+!*", .+k*-.,!-", .+k*" (or purposes of statute affording civil action for deprivation of rights, settled practices of state officials may, by imposing sanctions or withholding benefits, transform private predilections into compulsory rules of behavior no less than legislative pronouncements. /0 U.S.3.;. E *5+-. 0271 Con"t&tut&ona/ La* 92 32#0$3'

50 3onstitutional 1aw 50PP?I Gqual )rotection 50PP?I!%" )articular 3lasses 50PP?I!%"+ 4ace, Hational Drigin, or Gthnicity 50k-0,. )roperty in Ceneral 50k-026 )rivately Dperated (acilities 50k-026!-" k. 4estaurants and Dther )roviders of (ood and 8rink. :ost 3ited 3ases !(ormerly 50k0*2" )laintiff, white woman who was refused service in defendantLs restaurant because she was in company of Hegroes, would show abridgment of equal protection right by proving that defendant refused service because of state'enforced custom of segregating races in public restaurants. /0 U.S.3.;. E *5+-7 U.S.3.;.3onst. ;mend. */. 0281 C&+&/ R&g)t" 78 1397

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-50 )leading .+k*-5. k. Issues, )roof, and ?ariance. :ost 3ited 3ases !(ormerly .+k0-., .+k*-.*0!*", .+k*-" )laintiff who, in civil rights action, alleged that she had been denied service in defendantLs restaurant because she, a white woman, was in company of Hegroes, due to custom enforced by state, was not limited to showing that state used its criminal trespass statute for this purpose but could prove state enforcement by showing, for example, that segregation policy was enforced through police harassment or through police tolerance of violence or threats. /0 U.S.3.;. E *5+-7 3ode :iss.*5/0, E 06/2.,. 0291 C&+&/ R&g)t" 78 1325

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-0- 3olor of 1aw .+k*-0, k. State or #erritorial ;ction, or Individual or )rivate ;ction, in Ceneral. :ost 3ited 3ases !(ormerly .+k*52.*, .+k*52, .+k*-.,!*", .+k*" (or purposes of statute affording civil action for deprivation of rights, it is not the case that custom can have force of law only if enforced by state statute. 0301 C&+&/ R&g)t" 78 .+ 3ivil 4ights 132#$7'

.+III (ederal 4emedies in Ceneral .+k*-0- 3olor of 1aw .+k*-02 )articular 3ases and 3ontexts .+k*-02!." k. )ublic Support, 1icense, or 4egulation7 Utilities and :onopolies. :ost 3ited 3ases !(ormerly .+k*52.*, .+k*52, .+k*-.,!*", .+k*-" )laintiff who, in civil rights action, alleged that she had been denied service in defendantLs restaurant because she was white woman in company of Hegroes was not required, in order to show state custom, to demonstrate specific practice of not serving white persons in company of black persons but could show long'standing and still prevailing state'enforced custom of segregating races in public eating places. /0 U.S.3.;. E *5+-. 0311 C&+&/ R&g)t" 78 132#$1'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-0- 3olor of 1aw .+k*-02 )articular 3ases and 3ontexts .+k*-02!*" k. In Ceneral. :ost 3ited 3ases !(ormerly .+k*52.*, .+k*52, .+k*-.,!*", .+k*-" )laintiff in civil rights action based on allegation that she had been denied service in defendantLs restaurant through state custom of racial discrimination was not required to show that relevant custom existed throughout state7 proof that it had force of law in city in question would be sufficient. /0 U.S.3.;. E *5+-. 0321 Con"t&tut&ona/ La* 92 3022

50 3onstitutional 1aw 50PP?I Gqual )rotection 50PP?I!;" In Ceneral 50PP?I!;"/ ;pplicability to Covernmental or )rivate ;ction7 State ;ction 50k-600 k. 1ocal Covernments. :ost 3ited 3ases !(ormerly 50k0*-!*", 50k0*-" 1aw whose source is town ordinance may offend (ourteenth ;mendment even though it has less than statewide application, and custom with force of law in political subdivision of state may likewise offend (ourteenth ;mendment even though it lacks statewide application. U.S.3.;.3onst. ;mend. */. 0331 C&+&/ R&g)t" 78 104#

.+ 3ivil 4ights .+I 4ights )rotected and 8iscrimination )rohibited in Ceneral .+k*6/- )ublic ;ccommodations .+k*6/2 k. Inns and 4estaurants7 %ars and #averns. :ost 3ited 3ases !(ormerly .+k*06, .+k," C&+&/ R&g)t" 78 132#$7'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-0- 3olor of 1aw .+k*-02 )articular 3ases and 3ontexts .+k*-02!." k. )ublic Support, 1icense, or 4egulation7 Utilities and :onopolies. :ost 3ited 3ases !(ormerly .+k*06, .+k," )laintiff, white woman who was denied service in defendantLs restaurant because she was in company of

Hegroes, would make out claim under statute affording civil action for deprivation of rights by showing existence of state'enforced custom of segregating races in public eating places in city at time of incident in question and that defendantLs refusal to serve her was motivated by that state'enforced custom. /0 U.S.3.;. E *5+-. 0341 C&+&/ R&g)t" 78 132#$7'

.+ 3ivil 4ights .+III (ederal 4emedies in Ceneral .+k*-0- 3olor of 1aw .+k*-02 )articular 3ases and 3ontexts .+k*-02!." k. )ublic Support, 1icense, or 4egulation7 Utilities and :onopolies. :ost 3ited 3ases !(ormerly .+k*5+!-.*", .+k*5+!-", .+k*-.,!/"" )rivate person who discriminates on basis of race with knowledge of and pursuant to state'enforced custom requiring such discrimination is participant in oint activity with state and is acting under color of custom, for purposes of statute affording civil action for deprivation of rights. /0 U.S.3.;. E *5+-. ((1#11 (1#2 ;. 3US#D: D4 US;CG &e are first confronted with the issue of whether a =custom> for purposes of s *5+- must have the force of law, or whether, as argued in dissent, no state involvement is required. ;lthough this 3ourt has never explicitly decided this question, we do not interpret the statute against an amorphous backdrop. &hat is now /0 U.S.3. s *5+- came into existence as s * of the Ku Klux Klan ;ct of ;pril 06, *+.*, *. Stat. *-. #he 3hairman of the House Select 3ommittee which drafted this legislation described (H0/ s * as modeled after s 0 of the 3ivil 4ights ;ct of *+22'a criminal provision that also contained language that forbade certain acts by any person =under color of any law, statute, ordinance, regulation, or custom,> */ Stat. 0.. In the 3ivil 4ights 3ases, *65 U.S. -, *2, - S.3t. *+, 0,, 0. 1.Gd. +-, !*++-", the 3ourt said of this *+22 statute@ =#his law is clearly corrective in its (1#3 character, intended to counteract and furnish redress against state laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified.> !Gmphasis added." :oreover, after an exhaustive examination of the legislative history of the *+22 ;ct, both the ma ority and dissenting opinions (H0, in <ones v. ;lfred H. :ayer 3o., -50 U.S. /65, ++ S.3t. 0*+2, 06 1.Gd.0d **+5 !*52+", concluded that s 0 of the *+22 3ivil 4ights ;ct was intended to be limited to =deprivations perpetrated =under color of law. I(H02 !Gmphasis added." (H0/. 3ong.Clobe, /0d 3ong., *st Sess., ;pp. 2+ !statement by 4ep. Shellabarger". (H0,. -50 U.S., at /0/'/02, ++ S.3t., at 0*5,'0*52 !ma ority opinion"7 id., at /,/'/.-, ++ S.3t., at 00*6' 0006 !Harlan, <., dissenting". (H02. Id., at /02, ++ S.3t., at 0*52. In arguing that s * of the *+22 ;ct !the predecessor of what is now /0 U.S.3. s *5+0" was meant to cover private as well as governmental interference with certain rights, the 3ourt in <ones said@ LIndeed, if s * had been intended to grant nothing more than an immunity from governmental interference, then much of s 0 would have made no sense at all. (or that section, which provided fines and prison terms for certain individuals who deprived others of rights =secured or protected> by s *, was carefully drafted to exempt private violations of s * from the criminal sanctions it imposed. $ $ $ Hence the structure of the *+22 ;ct, as well as its language, points to the conclusion $ $ $ !that" only those deprivations perpetrated =under color of law> were to be criminally punishable under s 0.L Id., /0/'/02, ++ S.3t., at 0*5,. #he 3ourt in <ones cited the legislative history of s 0 to support its conclusion that the section =was carefully drafted to exempt private violationsL and punish only =governmental interference.> Id., at /0,, ++ S.3t., at 0*5, and n. --. Buite apart from this 3ourtLs construction of the identical =under color of> provision of s 0 of the *+22 ;ct, the legislative history of s * of the *+.* ;ct, the lineal ancestor of s *5+-, also indicates that the provision in question

here was intended to encompass only conduct supported by state action. #hat such a limitation was intended for s * can be seen from an examination of the statements ((1#12 and actions of both the supporters and opponents of the Ku Klux Klan ;ct. (1#4 In first reporting the 3ommitteeLs recommendations to the House, 4epresentative Shellabarger, the 3hairman of the House Select 3ommittee which drafted the Ku Klux Klan ;ct, said that s * was =in its terms carefully confined to giving a civil action for such wrongs against citiFenship as are done under color of State laws which abridge these rights.L(H0. !Gmphasis added." Senator Gdmunds, 3hairman of the Senate 3ommittee on the <udiciary, and also a supporter of the bill, said of this provision@ =#he first section is one that I believe nobody ob ects to, as defining the rights secured by the 3onstitution of the United States when they are assailed by any State law or under color of any State law, and it is merely carrying out the principles of the civil rights bill, which have since become a part of the 3onstitution.> (H0+ !Gmphasis added." #hus, in each House, the leader of those favoring the bill expressly stated his understanding that s * was limited to deprivations of rights done under color of law. (H0.. 3ong.Clobe, /0d 3ong., *st Sess., ;pp. 2+