Perez v. Ledesma/Dissent Brennan

Mr. Justice BRENNAN, with whom Mr. Justice WHITE and Mr. Justice MARSHALL join, concurring in part and dissenting in part.

This case presents questions regarding federal court intervention affecting the administration of state criminal laws that were not presented in No. 2, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; No. 7, Samuels v. Mackell, and No. 9, Fernandez v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; No. 4, Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; No. 83, Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792; and No. 41, Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781, all decided today.

Appellees operate a newsstand in the Parish of St. Bernard, Louisiana. On January 27, 1969, sheriff's officers of the parish, without warrants, raided the newsstand, seized allegedly obscene magazines, books, and playing cards from the shelves, and arrested appellee August M. Ledesma, Jr., an owner, for displaying obscene materials for sale. On February 10, 1969, four informations were filed in the state district court, two charging Ledesma with the crime of obscenity in violation of a Louisiana statute, La.Rev.Stat.Ann. § 14:106 (Supp.1970), and two charging him with obscenity in violation of St. Bernard Parish Ordinance 21-60. The statute and ordinance appear as an appendix to the opinion. On February 17, 1969, appellees filed the instant action in the United States District Court for the Eastern District of Louisiana, New Orleans Division. Their complaint sought a judgment under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, declaring the state statute and parish ordinance unconstitutional; an injunction against pending and future prosecutions under either enactment; and an injunction directing the return of the seized magazines, books, and playing cards and suppressing their use as evidence in any pending or future criminal prosecution against the appellees. A three-judge court was convened. Prior to the federal court hearing, the appellant entered a nolle prosequi in the state court on the two informations charging violation of the parish ordinance.

The three-judge court filed an opinion holding (a) that the Louisiana statute was constitutional on its face; (b) that the parish ordinance was unconstitutional on its face; and (c) that the arrest of appellee Ledesma and the seizure of the magazines, books, and playing cards were unconstitutional in the absence of a prior judicial adversary hearing determining that the seized materials were obscene. 304 F.Supp. 662 (1969). The court stated that because it was confident the appellants would comply with the court's views it was 'unnecessary to issue any injunctions' against 'pending or future prosecutions or future arrests and seizures.' 304 F.Supp., at 670. In pertinent part the judgment entered on August 14, 1969, therefore decreed:

'1. That all seized materials be returned, instanter, by the     (appellants) to those (appellees) from whom they were seized,

'2. That said materials be suppressed as evidence in any     pending or future prosecutions of the (appellees), '3. That the preliminary and permanent injunctions  prayed for be denied,

'4. That St. Bernard Parish Ordinance No. 21-60 is     unconstitutional.' App. 106-107.

We postponed consideration of the question of jurisdiction to the hearing on the merits. 399 U.S. 924, 90 S.Ct. 2234, 26 L.Ed.2d 790 (1970). In addition to the questions presented in the jurisdictional statement, our order requested the parties to brief and argue the following questions:

'(1) Was it an appropriate exercise of discretion for the     three-judge court to grant the relief in paragraphs 1 and 2      of the judgment of August 14, 1969, in view of the pendency      of the state prosecution charging violation of Louisiana      Revised Statutes § 14:106?

'(2) Was it an appropriate exercise of discretion for the     three-judge court in paragraph 4 of said judgment to declare      the St. Bernard Parish Ordinance No. 21-60 unconstitutional?'

I agree with the Court (1) that this is a proper appeal to this Court, and (2) that it was not an appropriate exercise of discretion for the three-judge court to grant the relief in paragraphs 1 and 2 of the judgment of August 14, 1969. I dissent, however, from the holding of the Court that the declaratory judgment which is paragraph 4 of the judgment of the three-judge court is not properly before us for review. I think that it is and, on the merits, would hold that it was an appropriate exercise of discretion for the court in paragraph 4 to declare St. Bernard Parish Ordinance No. 21-60 unconstitutional. I would, therefore, reverse and set aside paragraphs 1 and 2 of the judgment of August 14, 1969, but in all other respects would affirm that judgment.

* Jurisdiction

Appellants' assertion of a right of direct appeal to this Court relies upon 28 U.S.C. § 1253. That section permits an appeal in any civil action required to be heard and determined by a district court of three judges 'from an order granting or denying * *  * an interlocutory or permanent injunction.' Paragraph 3 of the order of August 14, 1969, decrees: 'That the preliminary and permanent injunctions (against pending and future prosecutions) prayed for be denied.' But § 1253 does not permit these appellants to appeal this portion of the judgment, since they prevailed to the extent of this denial of appellees' prayers for injunctive relief. Gunn v. University Committee to End War in Viet Nam, 399 U.S. 383, 391, 90 S.Ct. 2013, 2018, 26 L.Ed.2d 684 (1970) (White, J., concurring). However, paragraphs 1 and 2 of the judgment are injunctive orders against appellants directing them not to use the seized materials as evidence against appellees in any pending or future prosecutions and directing the return of those materials. These provisions clearly qualified the judgment as an order 'granting * *  * an *  *  * injunction,' from which appellants could appeal directly to this Court.

The companion cases decided today hold that a federal court should not interfere by injunction with an existing state criminal prosecution pending against the federal court plaintiff at the time the federal action is brought, except upon a showing that great, immediate, and irreparable injury is threatened. Such a showing may be, for example, in the form of bad-faith harassment of the federal court plaintiff by state law enforcement officials. These decisions adhere to the policy established by this Court that, in the absence of such showing, '(i)t is generally to be assumed that state courts and prosecutors will observe (in the pending prosecution) constitutional limitations as expounded by this Court.' Dombrowski v. Pfister, 380 U.S. 479, 484, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965). While the three-judge court sustained the constitutionality of the state statute on its face (a holding not before us on this appeal), the court interfered with the pending state prosecution under the statute to the extent of ordering the return of the seized materials and suppressing their use as evidence in the prosecution, thus leaving the State free to proceed with the prosecution on the basis of other evidence. This interference was improper on this record. There is an utter absence of any evidence that the seizures and the arrest of appellee Ledesma, and the filing of the informations accusing Ledesma of violation of the state statute, were undertaken in bad faith to harass appellees, or for any purpose except the goodfaith enforcement of the State's criminal laws. I have no occasion to consider, and intimate no view upon, the holding of the Federal District Court that, as to the seizures and the arrest of appellee Ledesma, 'the conclusion is irresistible in logic and in law that none of these may be constitutionally undertaken prior to an adversary judicial determination of obscenity.' 304 F.Supp., at 667. That appeal to federal constitutional protections was open to appellee Ledesma in the state prosecution by way of challenge, in any manner permitted by Louisiana criminal procedure, to the validity of the arrest, and objections to admission into evidence of, or motions to suppress use of, the materials. In Dombrowski, the Court expressly included controversies over the admissibility of evidence as controversies which, without more, involved 'no special circumstances to warrant cutting short the normal adjudication of constitutional defenses in the course of a (state) criminal prosecution.' 380 U.S., at 485, 85 S.Ct., at 1120, 14 L.Ed.2d 22. The Court said: 'It is difficult to think of a case in which an accused could properly bring a state prosecution to a halt while a federal court decides his claim that certain evidence is rendered inadmissible by the Fourteenth Amendment.' Id., at 485 n. 3, 85 S.Ct. at 1120, 14 L.Ed.2d 22. While there may be circumstances in which a federal court could properly adjudicate such a claim, this record discloses none which justified this three-judge court in doing so. I therefore join the Court in concluding that paragraphs 1 and 2 of the judgment should be reversed and set aside.

The Declaratory Judgment as to the Parish Ordinance

Threshold questions must be answered before the merits of the declaratory judgment which is paragraph 4 of the judgment of the three-judge court are reached.

The first threshold question is whether the declaratory judgment is properly before us for review. Two opinions, both written by Judge Boyle who initiated the three-judge panel, were filed on July 14, 1969, one for the three-judge court and the other a separate opinion of Judge Boyle. Judge Boyle's opinion for the three judges explained: 'Although it is not the function of a three-judge federal district court to determine the constitutionality or enjoin the enforcement of a local ordinance, as distinguished from statutes of state-wide application, Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967), the court takes this opportunity to express its views on the constitutionality of the ordinance in the interest of judicial economy. The view expressed by this court concerning the constitutionality of the ordinance is shared by the initiating federal district judge and is adopted by reference in his opinion issued contemporaneously herewith.' 304 F.Supp., at 670 n. 31 (emphasis added). Judge Boyle's separate opinion was a brief statement: 'For the reasons assigned in the foregoing 3-Judge Court opinion, it is ordered that judgment be entered herein decreeing: 1. That St. Bernard Parish Ordinance No. 21-60 is unconstitutional. 2. that jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper.' 304 F.Supp., at 671.

The Court holds that we have no jurisdiction to review the declaratory judgment on the premise that the declaratory judgment against the local ordinance was not issued by the three-judge court but rather by Judge Boyle acting as a single judge. With all respect this is not the case. Both the Court and my Brothers DOUGLAS and STEWART insist that Judge Boyle's separate statement was in fact a judgment. I would suppose Judge Boyle himself is the best authority as to that and he expressly referred to the statement as 'his opinion.' Appeals are, of course, taken from judgments and not from opinions. No judgment was entered by Judge Boyle pursuant to his separate opinion and therefore there existed no judgment pursuant to the order of the single judge to go to the Court of Appeals for review. The only judgment entered in the case was that entered by the three-judge court on August 14, 1969. Since the injunctions in paragraphs 1 and 2 rendered that judgment appealable directly to this Court, paragraph 4 of that judgment, the declaratory judgment, is necessarily before us.

However, other considerations require that we decide whether the three-judge court properly rendered the declaratory judgment. Our per curiam affirmance in Milky Way Productions v. Leary, 305 F.Supp. 288 (SDNY 1969), aff'd sub nom. New York Feed Co. v. Leary, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970), fully supports the action of the three-judge court in doing so. That case did not present attacks on a statute and ordinance but rather attacks on two different New York statutes. The first attack was on N.Y. Penal Law McKinney's Consol.Laws c. 40, § 235.00 (1965), New York's general obscenity statute. The second attack was on N.Y. Code Crim.Proc. §§ 148-150 (Supp.1970-1971). The District Court held that a three-judge court was required to deal with the attack on § 235.00 since the claim was that that section was facially unconstitutional. However, the attack on §§ 148-150 of the Code of Criminal Procedure was not that those sections were facially unconstitutional but only that those sections were unconstitutionally invoked before there had been an adversary judicial determination on the obscenity of the publications in question (i.e., as applied). The District Court acknowledged that the attack on the Code provisions was thus probably not for determination by three judges, but 'as a simple claim of official law-lessness, cognizable by one judge.' 305 F.Supp., at 295. Nevertheless, the District Court, invoking the principle that once three-judge court jurisdiction is established on one claim, the court may consider other issues that alone would not have called for three judges, held that, since there was three-judge jurisdiction of the claim of the facial unconstitutionality of § 235.00 jurisdiction existed also to determine the merits of the claim that the criminal procedure provisions were unconstitutionally applied. 305 F.Supp., at 295-296. Our affirmance sustained this holding. Plainly that affirmance governs this case and sustains the propriety of the action of the three-judge court in passing on the constitutionality of the ordinance. Appellants concede that Milky Way forecloses any challenge on their part to the action of the three-judge court. Indeed, they regard the action of the three-judge court as supported by the cases in this Court authorizing three-judge courts to consider attacks on statutes on nonconstitutional grounds when those courts are properly convened to hear constitutional challenges to the statutes.

The appellants argue, however, that no controversy requisite to relief under the Federal Declaratory Judgment Act existed after the nolle prosequi was entered. This argument presents the second threshold question.

Appellants rely upon Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). In that case a New York criminal statute prohibited the distribution of anonymous handbills in election campaigns. A distributor of anonymous handbills opposing the re-election of a Congressman ought in federal court a judgment declaring the statute unconstitutional. The federal action was brought after reversal by the New York courts of the appellee's conviction for distributing handbills during an earlier campaign of the Congressman. See Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). Appellee desired to distribute handbills during a forthcoming campaign of that Congressman, but the Congressman had retired from Congress to become a justice of the New York Supreme Court. In those circumstances the Court held that no 'controversy' requisite to declaratory relief existed, since Zwickler's only target was a particular Congressman and 'the prospect was neither real nor immediate of a campaign involving the Congressman.' 394 U.S., at 109, 89 S.Ct., at 960, 22 L.Ed.2d 113.

The situation here is quite different, however. 'Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). Appellees' complaint expressly alleges, and there was no evidence or finding to the contrary, that appellees 'desire to continue to keep for sale and to sell' the publications and playing cards in question. Thus, unlike the situation in Golden, the question of the constitutionality of the ordinance is 'presented in the context of a specific live grievance.' 394 U.S., at 110, 89 S.Ct., at 960, 22 L.Ed.2d 113. This conclusion is buttressed by the finding of the three-judge court that '(appellees) fear prosecution (under the ordinance) at some future date.' 304 F.Supp., at 670. Indeed, in light of the appellants' aggressive prosecution of appellees, the inference is permissible that any attempts by appellees to continue to display the questioned publications for sale might well again be met with prosecutions under both the statute and ordinance. There is no question that there is a continuing controversy between the appellants and the State involving the sale of allegedly obscene publications. Appellants did not assert the contrary before the District Court, nor do they assert the contrary here. I conclude that it cannot be said that the three-judge court erred in finding that there existed the 'controversy' requisite under the Federal Declaratory Judgment Act.

The third threshold question is whether the state prosecution under the ordinance was 'pending' so as to make federal intervention inappropriate. The fact is, as I have already noted, that informations against appellee Ledesma for violation of the ordinance were outstanding when this federal suit was filed. However, the nolle prosequi of those informations was entered before the three-judge court convened and heard the case. That court therefore treated the case as one in which no prosecution under the ordinance was pending. This was not error. The availability of declaratory relief was correctly regarded to depend upon the situation at the time of the hearing and not upon the situation when the federal suit was initiated. See Golden v. Zwickler, 294 U.S., at 108, 89 S.Ct., at 959, 22 L.Ed.2d 113. The principles of comity as they apply to federal court intervention, treated by the Court today in Nos. 2, 4, 7, 9, 41, and 83, see supra, at 93, present this issue. The key predicate to answering the question whether a federal court should stay its hand, is whether there is a pending state prosecution where the federal court plaintiff may have his constitutional defenses heard and determined. Ordinarily, that question may be answered merely by examining the dates upon which the federal and state actions were filed. If the state prosecution was first filed and if it provides an adequate forum for the adjudication of constitutional rights, the federal court should not ordinarily intervene. When, however, as here, at the time of the federal hearing there is no state prosecution to which the federal court plaintiff may be relegated for the assertion of his constitutional defenses, the primary reason for refusing intervention is absent. Here, there was no other forum for the adjudication of appellees' constitutional objections to the ordinance.

There is, of course, some intrusion into a state administration of its criminal laws whenever a federal court renders a declaratory judgment upon the constitutionality of a state criminal enactment. The Court holds today in Samuels v. Mackell, supra, that considerations of federalism ordinarily make the intrusion impermissible if a state prosecution under that enactment is proceeding at the time the federal suit is filed. The Court says, '(I)n cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and * *  * where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well.' 401 U.S., at 73, 91 S.Ct., at 768. But considerations of federalism are not controlling when no state prosecution is pending and the only question is whether declaratory relief is appropriate. In such case, the congressional scheme that makes the federal courts the primary guardians of constitutional rights, and the express congressional authorization of declaratory relief, afforded because it is a less harsh and abrasive remedy than the injunction, become the factors of primary significance.

The controversy over the power of federal courts to declare state statutes unconstitutional and to enjoin their enforcement has roots that reach back at least to Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793), where in a contract action this Court held that a State could be sued by a citizen of another State. 'That decision * *  * created such a shock of surprise throughout the country that, at the first meeting of Congress thereafter, the Eleventh Amendment to the Constitution was almost unanimously proposed, and was in due course adopted by the legislatures of the States.' Hans v. Louisiana, 134 U.S. 1, 11, 10 S.Ct. 504, 505, 33 L.Ed. 842 (1890) (Bradley, J.). The amendment was thought to have overruled Chisholm. Although the amendment might have been construed to give a broad immunity from federal suits to States and state officials acting pursuant to state policy, that construction was rejected in Osborn v. Bank of United States, 9 Wheat. 738, 847-848, 6 L.Ed. 204 (1824). Osborn involved a confiscatory state tax on a federal instrumentality. In sustaining a federal court injunction against the state tax, Chief Justice Marshall analyzed the controversy over federal judicial power as testing the viability of our federal system:

'The eleventh amendment * *  * has exempted a State from the      suits of citizens of other States *  *  * ; and the very      difficult question is to be decided, whether, in such a case,      the Court may act upon the agents employed by the State, and      on the property in their hands.

'Before we try this question by the constitution, it may not     be time misapplied, if we pause for a moment, and reflect on      the relative situation of the Union with its members, should      the objection prevail.

'A denial of jurisdiction forbids all inquiry into the nature     of the case. It applies to cases perfectly clear in     themselves; to cases where the government is in the exercise      of its best established and most essential powers, as well as      to those which may be deemed questionable. It asserts, that     the agents of a State, alleging the authority of a law void      in itself, because repugnant to the constitution, may arrest      the execution of any law in the United States.' 9 Wheat., at      847-848, 6 L.Ed. 204.

Though recognizing the sensitivity of granting injunctions in this context, the Court held that neither the Eleventh Amendment nor any principles of federalism prevented the lower federal courts from giving such relief where necessary to vindicate paramount federal law in a case where a State was not itself a party of record. The broad reach of the reasoning in Osborn has since been qualified, see generally L. Jaffe, Judicial Control of Administrative Action 213-222 (1965), but the basic principle that in appropriate circumstances federal courts will exercise their equity power against state officials to protect rights secured and activities authorized by paramount federal law remains firmly embedded in our jurisprudence. Pennoyer v. McConnaughy, 140 U.S. 1, 9-18, 11 S.Ct. 699, 701-704, 35 L.Ed. 363 (1891); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Truax v. Raich, 239 U.S. 33, 37-38, 36 S.Ct. 7, 8-9, 60 L.Ed. 131 (1915); Terrace v. Thompson, 263 U.S. 197, 214-215, 44 S.Ct. 15, 17-18, 68 L.Ed. 255 (1923). See also Leiter Minerals v. United States, 352 U.S. 220, 225-226, 77 S.Ct. 287, 290-291, 1 L.Ed.2d 267 (1957) (Frankfurter, J.).

Ex parte Young was the culmination of efforts by this Court to harmonize the principles of the Eleventh Amendment with the effective supremacy of rights and powers secured elsewhere in the Constitution. During the years between Osborn and Young, and particularly after the Civil War, Congress undertook to make the federal courts the primary guardians of constitutional rights. This history was reviewed in Zwickler v. Koota, 389 U.S., at 245 249, 88 S.Ct., at 393-394, 396, 19 L.Ed.2d 444. The principal foundations of the expanded federal jurisdiction in constitutional cases were the Civil Rights Act of 1871, 17 Stat. 13, which in § 1 empowered the federal courts to adjudicate the constitutionality of actions of any person taken under color of state statute, ordinance, regulation, custom, or usage, see 42 U.S.C. § 1983, 28 U.S.C. § 1343(3), and the Judiciary Act of 1875, 18 Stat. 470, which gave lower federal courts general federal-question jurisdiction, see 28 U.S.C. § 1331. These two statutes, together, after 1908, with the decision in Ex parte Young, established the modern framework for federal protection of constitutional rights from state interference. That framework has been strengthened and expanded by subsequent acts of Congress and subsequent decisions of this Court.

Ex parte Young involved a state regulatory statute with penal sanctions. At the suit of railroad stockholders, a federal circuit court temporarily enjoined the railroad from complying with the statute, and also temporarily enjoined Young, the state Attorney General, from instituting any proceedings to enforce the statute. Young nevertheless brought an enforcement proceeding in a state court, and was thereupon held in contempt by the circuit court. He brought habeas corpus in this Court, contending that the circuit court lacked jurisdiction to hold him in contempt. This Court held, first, that the original suit was properly within the general federal-question jurisdiction of the circuit court; second, that 'individuals who, as officers of the state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action,' 209 U.S., at 155-156, 28 S.Ct., at 452, 52 L.Ed. 714; and, third, that a federal court of equity has power in appropriate circumstances to enjoin a future state criminal prosecution: 'When (the state) proceeding is brought to enforce an alleged unconstitutional statute, which is the subject-matter of inquiry in a suit already pending in a Federal court, the latter court, having first obtained jurisdiction over the subject-matter, has the right, in both civil and criminal cases, to hold and maintain such jurisdiction, to the exclusion of all other courts, until its duty is fully performed.' 209 U.S., at 161-162, 28 S.Ct., at 454-455.

The decision in Ex parte Young provoked a reaction not unlike that which greeted Chisholm v. Georgia. Opposition focused principally on the power of lower federal courts, and of single judges of such courts, to issue preliminary injunctions, often ex parte, against the enforcement of state statutes, generally regulatory statutes carrying penalties. See generally Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154, 83 S.Ct. 554, 560, 9 L.Ed.2d 644 (1963); H. Hart & H. Wechsler, The Federal Courts and the Federal System 848-849 (1953); Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795, 803-810 (1934); Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 5 7 (1964). The opinion in Ex parte Young anticipated the problem. The Court noted the objection 'that the necessary result of upholding this suit in the circuit court will be to draw to the lower Federal courts a great flood of litigation of this character, where one Federal judge would have it in his power to enjoin proceedings by state officials to enforce the legislative acts of the state, either by criminal or civil actions.' 209 U.S., at 166, 28 S.Ct., at 456, 52 L.Ed. 714. The same year the case was decided Congress considered a measure to disable the lower federal courts from enjoining enforcement of state statutes, but the proposal failed to attract sufficient support for passage. See 42 Cong.Rec. 4848-4849 (1908). Two years later, a similar measure passed the House, see 46 Cong.Rec. 313, 316 (1910), but the Senate would not accept it. See F. Frankfurter and J. Landis, The Business of the Supreme Court 143 (1927). However, the same year, Congress did respond to Ex Parte Young. It did not attempt to overrule the case by constitutional amendment or by statute; it did not seek to contain it by expanding the statutory bar against federal injunctions of state proceedings, 28 U.S.C. § 2283, beyond stays of suits already instituted; it did not follow the precedent of the Eleventh Amendment by excluding a class of litigation from federal jurisdiction; nor did it anticipate the technique of the Norris-LaGuardia Act by forbidding the use of the injunction in a defined class of cases, see 47 Stat. 70, 29 U.S.C. §§ 101-115. Rather, Congress ratified the active role assigned to the federal courts by the post-Civil War legislation and accepted the basic holdings of Ex parte Young, but provided that a preliminary injunction against enforcement of a state statute could be issued only by a three-judge district court, see 36 Stat. 557, now 28 U.S.C. § 2281, and that the decision of such a court granting or denying an injunction would be directly appealable to this Court. See 28 U.S.C. § 1253. Thus the Three-Judge Court Act confirmed Congress' acceptance of Ex parte Young and the course of federal adjudication of the constitutionality of state statutes which it represented, and Congress has never departed from that acceptance on any of the several occasions when it has amended the Act. As Professor Wright has written, '(T)he doctrine of Ex parte Young seems indispensable to the establishment of constitutional government and the rule of law.' C. Wright, Handbook of the Law of Federal Courts 186 (2d ed. 1970).

During the period leading up to and following Ex parte Young the federal injunction suit became the classic method for testing the constitutionality of state statutes. The injunctive remedy was strong medicine, and the Three-Judge Court Act did not eliminate the defects in and the widespread hostility to the injunction procedure. The procedure was unsatisfactory for both private plaintiffs and state defendants: a plaintiff had the burden of proving the traditional equity requirements for an injunction; and if the plaintiff prevailed in court, an injunction issued against the defendant state official, paralyzing enforcement of the state statute pending further review. Consequently, in 1934, without expanding or reducing the subject-matter jurisdiction of the federal courts, or in any way diminishing the continuing vitality of Ex parte Young with respect to federal injunctions, Congress empowered the federal courts to grant a new remedy, the declaratory judgment. See Act of June 14, 1934, c. 512, 48 Stat. 955, now 28 U.S.C. § 2201.

The express purpose of the Federal Declaratory Judgment Act was to provide a milder alternative to the injunction remedy. The House Committee Report stated, 'The principle involved in this form of procedure is to confer upon the courts the power to exercise in some instances preventive relief; a function now performed rather clumsily by our equitable proceedings and inadequately by the law courts.' H.R.Rep. No. 1264, 73d Cong., 2d Sess., 2 (1934). Of particular significance on the question before us, the Senate report makes it even clearer that the declaratory judgment was designed to be available to test state criminal statutes in circumstances where an injunction would not be appropriate:

'The declaratory judgment differs in no essential respect     from any other judgment except that it is not followed by a      decree for damages, injunction, specific performance, or      other immediately coercive decree. It declares conclusively     and finally the rights of parties in litigations over a      contested issue, a form of relief which often suffices to      settle controversies and fully administer justice. * *  * It      has been employed in State courts *  *  * for the declaration      of rights contested under a statute or municipal ordinance,      where it was not possible or necessary to obtain an      injunction.

'The procedure has been especially useful in avoiding the     necessity, now so often present, of having to act at one's      peril or to act on one's own interpretation of his rights, or      abandon one's rights because of a fear of incurring damages. So now it is often necessary, in the absence of the     declaratory judgment procedure, to violate or purport to      violate a statute in order to obtain a judicial determination      of its meaning or validity. Compare Shredded Wheat Co. v.     City of Elgin (284 Ill. 389, 120 N.E. 248, 1918), where the      parties were denied an injunction against the enforcement of      a municipal ordinance carrying a penalty, and were advised to      purport to violate the statute and then their rights could be      determined, with Erwin Billiard Parlor v.

Buckner (156 Tenn. 278, 300 S.W. 565, 1927), where a     declaratory judgment under such circumstances was issued and      settled the controversy. * *  *

'The fact is that the declaratory judgment has often proved     so necessary that it has been employed under other names for      years, and that in many cases the injunction procedure is      abused in order to render what is in effect a declaratory      judgment. For example, in the case of Pierce v. Society of     Sisters (268 U.S. 510, 525 (45 Sup.Ct. 571, 69 L.Ed. 1070)     1925), the court issued an injunction against the enforcement      of an Oregon statute which was not to come into force until 2      years later; in rendering a judgment declaring the statute      void, the court in effect issued a declaratory judgment by      what was, in effect, apparently, an abuse of the injunction. See also Village of Euclid v. Ambler Realty Co. (272 U.S. 365     (47 Sup.Ct. 114, 71 L.Ed. 303) 1926). Much of the hostility     to the extensive use of the injunction power by the Federal      courts will be obviated by enabling the courts to render      declaratory judgments.

'Finally, it may be said that the declaratory-judgment     procedure has been molded and settled by thousands of      precedents, so that the administration of the law has been      definitely clarified. The Supreme Court mentioned one of its     principal purposes in Terrace v. Thompson (263 U.S. 197, 216      (44 Sup.Ct. 15, 68 L.Ed. 255) (1923), by Butler, J., when it     said:

"They are not obliged to take the risk of prosecutions,     fines, and imprisonment and loss of property in order to      secure an adjudication of their rights." S.Rep. No. 1005, 73d     Cong., 2d Sess., 2-3, 6 (1934).

Both before and after the enactment of the Federal Declaratory Judgment Act, the practice of those States that provided a declaratory remedy was to make it available to test the validity of criminal legislation. See E. Borchard, Declaratory Judgments 1024 (2d ed. 1941). Professor Borchard, a leading proponent of the Act, testified: 'Most courts are unwilling to grant injunctions * *  * on the ground that it is a criminal statute, but you can get a declaratory judgment in States that have it.' Hearings on H.R. 5623 before a Subcommittee of the Senate Committee on the Judiciary, 70th Cong., 1st Sess., 19 (1928). He testified further that 'when Federal courts do get power to render declaratory judgments, instead of rendering an injunction, as is now done, that requires three judges, plaintiff will get a declaratory judgment. You would not be able to get an injunction, in such cases, from one judge, but you could get a declaratory judgment as to your rights.' Id., at 39. Indeed, early in the history of the Act this Court applied it to test the constitutionality of a federal statute carrying criminal sanctions. See Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441 (1939). Professor Borchard also introduced a written statement in the hearings, which stated in part:

'(T)he declaratory judgment serves another useful purpose. It     often happens that courts are unwilling to grant injunctions      to restrain the enforcement of penal statutes or ordinances,      and relegate the plaintiff to his option, either to violate      the statute and take his chances in testing constitutionality      on a criminal prosecution, or else to forego, in the fear of      prosecution, the exercise of his claimed rights. Into this     dilemma no civilized legal system operating under a      constitution should force any person. The court, in effect,     by refusing an injunction informs the prospective victim that      the only way to determine whether the suspect is a mushroom      or a toadstool, is to eat it. Assuming that the plaintiff has     a vital interest in the enforcement of the challenged statute      or ordinance, there is no reason why a declaratory judgment      should not be issued, instead of compelling a violation of the statute as a condition      precedent to challenging its constitutionality.' Hearings on      H.R. 5623, supra, at 75-76.

The legislative history of the Federal Declaratory Judgment Act is overwhelming that declaratory judgments were to be fully available to test the constitutionality of state and federal criminal statutes. Much of the hostility to federal injunctions referred to in the Senate report was hostility to their use against state officials seeking to enforce state regulatory statutes carrying criminal sanctions; this was the strong feeling that produced the Three-Judge Court Act in 1910, the Johnson Act of 1934, 28 U.S.C. § 1342, and the Tax Injunction Act of 1937, 28 U.S.C. § 1341. The Federal Declaratory Judgment Act was intended to provide an alternative to injunctions against state officials, except where there was a federal policy against federal adjudication of the class of litigation altogether. See discussion, infra, at 126-128, of Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943). Moreover, the Senate report's clear implication that declaratory relief would have been appropriate in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed.2d 303 (1926), both cases involving federal adjudication of the constitutionality of a state statute carrying criminal penalties, and the report's quotation from Terrace v. Thompson, which also involved anticipatory federal adjudication of the constitutionality of a state criminal statute, make it plain that Congress anticipated that the declaratory judgment procedure would be used by the federal courts to test the constitutionality of state criminal statutes.

This history compels rejection of the Court's suggestion, ante, at 677 n. 2, that although no informations were pending at the time of the hearing, declaratory relief was inappropriate in the absence of a showing 'that appellees would suffer irreparable injury of the kind necessary to justify federal injunctive interference with the state criminal processes.' Congress expressly rejected that limitation and to engraft it upon the availability of the congressionally provided declaratory remedy is simply judicial defiance of the congressional mandate. It is nothing short of judicial repeal of the statute. If the statute is to be repealed or rewritten, it must be done by Congress, not this Court.

Ex parte Young makes clear that the most significant factor determining the propriety of federal intervention is whether a state proceeding exists that was initiated before the federal suit was filed. The Court there upheld a federal court's injunction against future state proceedings where the injunction was in aid of the federal court's jurisdiction, but the Court expressly excepted from its holding the case where a state proceeding exists which was pending at the time federal jurisdiction attached. Specifically, the Court stated, 'But the Federal court cannot, of course, interfere in a case where the proceedings were already pending in a state court.' 209 U.S., at 162, 28 S.Ct., at 455, 52 L.Ed. 714. The Court cited Harkrader v. Wadley, 172 U.S. 148, 19 S.Ct. 119, 43 L.Ed. 399 (1898), in support, thus making clear that the ruling was influenced by the statutory provision, first enacted in 1793, prohibiting federal injunctions against proceedings pending in any court of a State. The history of that provision, now 28 U.S.C. § 2283, was recently traced in Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970). However, the statutory bar applies only to prosecutions begun before the federal suit is filed and does not preclude injunctions against the institution of future prosecutions. See generally Warren, Federal and State Court Interference, 43 Harv.L.Rev. 345, 366-378 (1930). Thus, the general rules that follow from Ex parte Young are, first, that where there is no pending state proceeding when the federal suit is filed, a federal court can adjudicate constitutional claims against state officials and issue such orders as are necessary to preserve its jurisdiction; and, second, that where a state proceeding exists that was pending at the time suit was filed in federal court the federal court should ordinarily decline to render either declaratory or injunctive relief.

These rules were developed further in the light of additional considerations in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Dombrowski confirmed the well-established principle that constitutional defenses to a state criminal charge must be initially tested in state rather than in federal courts. See Douglas v. City of Jeannette, Pa., 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); Cameron v. Johnson, 390 U.S. 611, 618, 88 S.Ct. 1335, 1339, 20 L.Ed.2d 182 (1968); compare Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951), with Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233 (1956). However, Dombrowski also recognized that exceptional circumstances may justify federal intervention when the opportunity to raise constitutional defenses at the state criminal trial does not assure protection of the constitutional rights at stake. Dombrowski considered two situations in which 'exceptional circumstances' can exist. First, if in order to discourage conduct protected by the First Amendment or by some other provision of the Constitution, a State brings or threatens to bring a criminal prosecution in bad faith for the purpose of harassment, the bringing of the prosecution or the threat is itself a constitutional deprivation since it subjects a person to a burden of criminal defense which he should not have to bear, and there then exists a situation 'in which defense of the State's criminal prosecution will not assure adequate vindication of constitutional rights.' Dombrowski v. Pfister, supra, 380 U.S. at 485, 85 S.Ct. at 1120, 14 L.Ed.2d 22; see Cameron v. Johnson, supra, 390 U.S. at 621, 88 S.Ct., at 1340, 20 L.Ed.2d 182; cf. Achtenberg v. Mississippi, 393 F.2d 468, 474-475 (CA5 1968). Accordingly, in this context a civil suit is an appropriate means to cut short the unconstitutional state prosecution. The civil suit for remedial relief may appropriately be brought in federal court since the federal courts are the primary guardians of constitutional rights. Zwickler v. Koota, supra. Second, where a criminal statute prohibits or seems to prohibit constitutionally protected conduct, and to that extent is unconstitutionally vague or overbroad (a contention not made as to the state statute in this case), the opportunity to raise constitutional defenses at a criminal trial is inadequate to protect the underlying constitutional rights, since in that situation a substantial number of people may well avoid the risk of criminal prosecution by abstaining from conduct thought to be proscribed by the statute. Even persons confident that their contemplated conduct would be held to be constitutionally protected and that accordingly any state conviction would be overturned may be deterred from engaging in such conduct by the prospect of becoming enmeshed in protracted criminal litigation, and by the risk that in the end, years later, their confidence will prove to have been misplaced and their resources wasted. This deterrence is magnified by the scope that vagueness or overbreadth gives for discriminatory or capricious enforcement. Federal anticipatory relief is justified here because it is a principal function of the federal courts to vindicate the constitutional rights of all persons-those who want to obey state laws as well as those prepared to defy them. Thus in Dombrowski we held that in cases in these categories federal courts may properly intervene in order to assure the full protection of federal constitutional right.

Taken together, the principles of Ex parte Young and Dombrowski establish that whether a particular case is appropriate for federal intervention depends both on whether a state proceeding is pending and on the ground asserted for intervention. Where the ground is bad-faith harassment, intervention is justified whether or not a state prosecution is pending. Intervention in such cases does not interfere with the normal good-faith enforcement of state criminal law by constitutional means, and does not necessarily require a decision on the constitutionality of a state statute. It simply prevents particular unconstitutional use of the State's criminal law in bad faith against the federal plaintiff. Under Douglas v. City of Jeannette, supra, 319 U.S. at 164, 63 S.Ct., at 881, 87 L.Ed. 1324, a person has no immunity from a state prosecution 'brought lawfully and in good faith,' but he is entitled to federal relief from a state prosecution which amounts to bad-faith harassment.

The situation is different where the plaintiff seeks federal intervention on the ground that a state statute is unconstitutional, but does not allege facts showing bad-faith harassment. In cases of this sort, on whatever provision the claim of unconstitutionality rests, the justification for intervention is that individuals should be able to exercise their constitutional rights without running the risk of becoming lawbreakers. This justification applies with full force where there is a continuing live controversy and federal intervention is sought when there is no state prosecution in which the statute may be tested. However, where federal intervention is sought after a state prosecution has commenced and while it is pending, the interests protected by federal intervention must be weighed against the broad countervailing principles of federalism. The pending state proceeding ordinarily provides an existent, concrete opportunity to secure vindication of constitutional claims in the state courts, with ultimate review by this Court. In this situation collateral resort to a federal court will not speed up the resolution of the controversy since that will not come to an end in any event until the state litigation is concluded. Moreover, federal intervention may disrupt the state proceeding through the issuance of necessary stays or the burdensome necessity for the parties to proceed in two courts simultaneously. Federal adjudication of the matters at issue in the state proceeding may otherwise be an unwarranted and unseemly duplication of the State's own adjudicative process. For these reasons, federal courts should not ordinarily intervene by way of either declaratory or injunctive relief in cases where a state court prosecution exists that began before the federal suit was filed, and the federal court plaintiff alleges only that the state statute being applied to him is unconstitutional. Cf. Brillhart v. Excess Ins. Co., 316 U.S. 491, 494-495, 62 S.Ct. 1173, 1175-1176, 86 L.Ed. 1620 (1942); Wright, supra, at 205. The interests served by federal intervention in that context are plainly outweighed by the principles of comity essential to our federal system.

When no state proceeding is pending and federal intervention is therefore appropriate, the federal court must decide which of the requested forms of relief should be granted. Ordinarily a declaratory judgment will be appropriate if the case-or-controversy requirements of Article III are met, if the narrow special factors warranting federal abstention are absent, and if the declaration will serve a useful purpose in resolving the dispute. See generally Zwickler v. Koota, supra; Golden v. Zwickler, supra. This general rule carries out the unambiguous intention of Congress expressed in the Federal Declaratory Judgment Act and reflected in the committee reports, supra. The propriety of an injunction should be considered separately and in light of the traditional requirements of equity jurisprudence as applied to the protection of constitutional rights. See, E.g., Douglas v. City of Jeannette, supra; Ex parte Young, supra; Dombrowski v. Pfister, supra; Cameron v. Johnson, supra; Zwickler v. Koota, supra; see also Hart & Wechsler, supra, at 862-864.

It follows that the Court's statement today in Samuels v. Mackell, that in cases where the state criminal prosecution is pending, 'the same equitable principles relevant to the propriety of an injunction must be taken into consideration * *  * in determining whether to issue a declaratory judgment, and that where an injunction would be impermissible *  *  * declaratory relief should ordinarily be denied as well,' is not applicable when determining whether to issue a declaratory judgment in a case where no state criminal prosecution is pending. Its applicability is precluded by the nature of the remedy created by the Federal Declaratory Judgment Act, and by our decisions under the Act, culminating in Zwickler v. Koota, supra, which establish that the considerations governing the grant of a declaratory judgment are quite different from those governing the grant of an injunction, even though both forms of relief are discretionary and thus, in the broad sense of the term, 'equitable' in nature. The application of the Mackell statement when no criminal prosecution is pending would run counter to our decision this Term in Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515, decided January 19, 1971, where we flatly rejected the proposition that federal courts should stay their hand until the state courts have been asked to pass on a statute clearly unconstitutional on its face. We there said:

'Congress could of course have routed all federal     constitutional questions through the state court systems,      saving to this Court the final say when it came to review of      the state court judgments. But our First Congress (in the     first Judiciary Act, 1 Stat. 73) resolved differently and      created the federal court system and in time granted the      federal courts various heads of jurisdiction, which today      involve most federal constitutional rights. * *  *

' * *  * We would negate the history of the enlargement of the      jurisdiction of the federal district courts, if we held the      federal court should stay its hand and not decide the      question before the state courts decided it.' 400 U.S. at 437      438, 439, 91 S.Ct. at 510-511.

Moreover, the prerequisites for injunctive and declaratory relief are different. The availability of an alternative adequate legal remedy ordinarily bars an injunction, but does not bar declaratory relief, see Fed.Rule Civ.Proc. 57, unless the alternative remedy was expressly created by statute. See Katzenbach v. McClung, 379 U.S. 294, 295-296, 85 S.Ct. 377, 379 380, 13 L.Ed.2d 290 (1964). Similarly, irreparable injury must be shown in a suit for an injunction, but not in an action for declaratory relief. Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937). Of course, neither remedy may be afforded in the absence of a live controversy. United States v. Alaska S.S.C.o., 253 U.S. 113, 40 S.Ct. 448, 64 L.Ed. 808 (1920); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941); Zwickler v. Koota, supra, 389 U.S. at 244 n. 3, 88 S.Ct. at 393, 19 L.Ed.2d 444. However, the existence of an actual controversy and the adequacy of declaratory relief to resolve it are issues often presenting particular difficulty in declaratory judgment actions, and it is to these issues that judicial discretion in such actions is primarily directed. See Public Service Comm'n of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952).

The effects of injunctive and declaratory relief in their impact on the administration of a State's criminal laws are very different. See generally Kennedy v. Mendoza-Martinez, 372 U.S. 144, at 152-155, 83 S.Ct. 554, at 559-560, 9 L.Ed.2d 644 (1963). An injunction barring enforcement of a criminal statute against particular conduct immunizes that conduct from prosecution under the statute. A broad injunction against all enforcement of a statute paralyzes the State's enforcement machinery: the statute is rendered a nullity. A declaratory judgment, on the other hand, is merely a declaration of legal status and rights; it neither mandates nor prohibits state action. See Flemming v. Nestor, 363 U.S. 603, 607, 80 S.Ct. 1367, 1370, 4 L.Ed.2d 1435 (1960); Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 15-16 (1964).

Of course, a favorable declaratory judgment may nevertheless be valuable to the plaintiff though it cannot make even an unconstitutional statute disappear. A state statute may be declared unconstitutional in toto-that is, incapable of having constitutional applications; or it may be declared unconstitutionally vague or overbroad-that is, incapable of being constitutionally applied to the full extent of its purport. In either case, a federal declaration of unconstitutionality reflects the opinion of the federal court that the statute cannot be fully enforced. If a declaration of total unconstitutionality is affirmed by this Court, it follows that this Court stands ready to reverse any conviction under the statute. If a declaration of partial unconstitutionality is affirmed by this Court, the implication is that this Court will overturn particular applications of the statute, but that if the statute is narrowly construed by the state courts it will not be incapable of constitutional applications. Accordingly, the declaration does not necessarily bar prosecutions under the statute, as a broad injunction would. Thus, where the highest court of a State has had an opportunity to give a statute regulating expression a narrowing or clarifying construction but has failed to do so, and later a federal court declares the statute unconstitutionally vague or overbroad, it may well be open to a state prosecutor, after the federal court decision, to bring a prosecution under the statute if he reasonably believes that the defendant's conduct is not constitutionally protected and that the state courts may give the statute a construction so as to yield a constitutionally valid conviction. Even where a declaration of unconstitutionality is not reviewed by this Court, the declaration may still be able to cut down the deterrent effect of an unconstitutional state statute. The persuasive force of the court's opinion and judgment may lead state prosecutors, courts, and legislators to reconsider their respective responsibilities toward the statute. Enforcement policies or judicial construction may be changed, or the legislature may repeal the statute and start anew. Finally, the federal court judgment may have some res judicata effect, though this point is not free from difficulty and the governing rules remain to be developed with a view to the proper workings of a federal system. What is clear, however, is that even though a declaratory judgment has 'the force and effect of a final judgment,' 28 U.S.C. § 2201, it is a much milder form of relief than an injunction. Though it may be persuasive, it is not ultimately coercive; noncompliance with it may be inappropriate, but is not contempt.

The Court's opinion in Zwickler v. Koota confirmed that the considerations governing the grant of the two remedies are quite different. Zwickler v. Koota distinguished the prayer for injunction from the prayer for declaratory relief and held squarely that the District Court erred in denying declaratory relief on the ground that there was no 'showing * *  * of 'special circumstances to justify *  *  * ' injunctive relief.' 389 U.S., at 253-254, 88 S.Ct., at 398, 19 L.Ed.2d 444. The Court expressly held that 'a request for a declaratory judgment that a state statute is overbroad on its face must be considered independently of any request for injunctive relief against the enforcement of that statute. We hold that a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction.' Id., at 254, 88 S.Ct., at 399, 19 L.Ed.2d 444 (emphasis added). See also Malone v. Emmet, 278 F.Supp. 193 (M.D.Ala.1967).

Great Lakes Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943), is not contrary to my conclusion. That case was an action by employers for a declaration that a state unemployment compensation scheme which imposed a tax upon them was unconstitutional. Congress has always treated judicial interference with the enforcement of tax laws as a subject governed by unique considerations, and this Court has consistently enforced the congressional command that '(t)he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.' 28 U.S.C. § 1341. This Court, without relying on the particular terms of the statute, has taken its underlying policy to require that federal courts stay completely out of the field of anticipatory adjudication of tax cases so long as an adequate remedy is otherwise available. In Great Lakes 'we held that declaratory relief that a state tax was unconstitutional should be denied by the federal court. The basis of our ruling was that since Congress had prohibited the federal courts from enjoining state taxes where an adequate remedy was available in the state courts, declaratory relief should also be withheld.' Public Service Comm'n of Utah v. Wycoff Co., 344 U.S. 237, 253, 73 S.Ct. 236, 245, 97 L.Ed. 291 (1952) (Douglas, J., dissenting) (citation omitted). Thus Great Lakes adhered to the congressional recognition of the unique considerations presented by anticipatory tax litigation. Ibid. As the statutes barring anticipatory relief in federal tax cases, 26 U.S.C. § 7421 (1964 ed., Supp. V); 28 U.S.C. § 2201 (express exception for federal taxes), make entirely clear, the unique considerations that were the basis of Great Lakes relate not so much to considerations of federalism as to the peculiar needs of tax administration. Cf. Agricultural Adjustment Act amendments of 1935, § 30, 49 Stat. 770, amending Act of May 12, 1933, 48 Stat. 31 (7 U.S.C. § 623(a)). In contrast, there is no statutory couterpart of 28 U.S.C. § 1341 applicable to intervention in state criminal prosecutions.

Of course, the grant or denial of a declaratory judgment is a matter of sound judicial discretion. The standards for the exercise of this discretion have been articulated in Aetna Life Ins. Co v. Haworth, supra; Public Service Comm'n of Utah v. Wycoff Co., supra, and in Zwickler v. Koota, supra, see supra, at 120 126. Where a federal court is asked to declare the validity or invalidity of a state statute, this discretion is to be exercised 'in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the states, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the constitution.' Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886). However, as the Court said in Zwickler v. Koota:

'Congress imposed the duty upon all levels of the federal     judiciary to give due respect to a suitor's choice of a      federal forum for thehearing and decision of his federal      constitutional claims. Plainly, escape from that duty is not     permissible merely because state courts also have the solemn      responsibility, equally with the federal courts, ' *  *  * to      guard, enforce, and protect every right granted or secured by      the constitution of the United States *  *  * ,' Robb v.      Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 28 L.Ed. 542. * *  *      The judge-made doctrine of abstention, first fashioned in      1941 *  *  * sanctions such escape only in narrowly limited      'special circumstances.' Proper v. Clark, 337 U.S. 472, 492,      69 S.Ct. 1333, 93 L.Ed. 1480.' 389 U.S., at 248, 88 S.Ct., at     395, 19 L.Ed.2d 444.

Thus, where no criminal prosecution involving the federal court parties is pending when federal jurisdiction attaches, declaratory relief determining the disputed constitutional issue will ordinarily be appropriate to carry out the purposes of the Federal Declaratory Judgment Act and to vindicate the great protections of the Constitution.

I conclude that the three-judge court properly exercised its discretion in issuing a declaratory judgment upon the constitutionality of St. Bernard Parish Ordinance No. 21-60. I also agree with the District Court that the ordinance is unconstitutional on its face because 'mortally infected with the vice of vagueness.' 304 F.Supp., at 670. Appellants do not assert the contrary.

Paragraphs 1 and 2 of the judgment entered August 14, 1969, should be reversed and the judgment in all other respects should be affirmed.

s 14:106. Obscenity

(1) Exposure of one's person in a public place in such manner that any part of a sex organ may be seen by another person, with the intent of arousing sexual desire.

(2) Production, sale, exhibition, gift, or advertisement with the intent to primarily appeal to the prurient interest of the average person, of any lewd, lascivious, filthy or sexually indecent written composition, printed composition, book, magazine, pamphlet, newspaper, story paper, writing, phonograph record, picture, drawing, motion picture film, figure, image, wire or tape recording of any written, printed or recorded matter of sexually indecent character which may or may not require mechanical or other means to be transmitted into auditory, visual or sensory representations of such sexually indecent character.

(3) Possession with the intent to sell, exhibit, give or advertise any of the pornographic material of the character as described in Paragraph (2) above, with the intent to primarily appeal to the prurient interest of the average person.

(4) Performance by any person or persons in the presence of another person or persons with the intent of arousing sexual desire, of any lewd, lascivious, sexually indecent dancing, lewd, lascivious or sexually indecent posing, lewd, lascivious or sexually indecent body movement.

(5) Solicitation or attempt to entice any unmarried person under the age of seventeen years to commit any act prohibited by this section.

(6) Requirement by a person, as a condition to a sale, allocation, consignment or delivery for resale of any paper, magazine, book, periodical or publication to a purchaser or consignee, that such purchaser or consignee receive for resale any other article, book or publication reasonably believed by such purchaser or consignee to contain articles or material of any kind or description which are designed, intended or reasonably calculated to or which do in fact appeal to the prurient interests of the average person in the community, as judged by contemporary community standards, or the denying or threatening to deny any franchise or to impose any penalty, financial or otherwise, by reason of the failure of any person to accept such articles or things or by reason of the return thereof.

(7) Display of nude pictures of a man, woman, boy or girl in any public place, except as works of art exhibited in art galleries.

B. In prosecutions for obscenity, lack of knowledge of age or marital status shall not constitute a defense.

C. Whoever commits the crime of obscenity shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned for not more than six months, or both.

When a violation of Paragraphs (1), (2), (3), and (4) of Subsection (A) of this Section is with or in the presence of an unmarried person under the age of seventeen years, the offender shall be fined not more than one thousand dollars, or imprisoned for not more than five years with or without hard labor, or both.

Amended by Acts 1958, No. 388, § 1; Acts 1960, No. 199, § 1; Acts 1962, No. 87, § 1; Acts 1968, No. 647, § 1, emerg. eff. July 20, 1968, at 1:30 P.M.

EXTRACT OF THE OFFICIAL PROCEEDINGS OF THE POLICE JURY OF THE PARISH OF ST. BERNARD, STATE OF LOUISIANA, TAKEN AT THE REGULAR MEETING HELD IN THE POLICE JURY ROOM OF THE COURTHUSE ANNEX, AT CHALMETTE, LOUISIANA, ON NOVEMBER 2, 1960, AT ELEVEN O'CLOCK (11:00) A.M.

On motion of Celestine Melerine, seconded by Joseph V. Papania and upon recommendation of the District Attorney of the Parish of St. Bernard, the following Ordinance was adopted:

An Ordinance known as the Ordinance of St. Bernard Parish, relative to prohibiting and defining the offense of obscenity and indecent literature, adding thereto the offense of 'attempt,' and prescribing penalties for the violation thereof.

SECTION 1.

Offense of obscenity defined and prohibited.

SECTION 2.

BE IT ORDAINED, by the Police Jury of the Parish of St. Bernard that obscenity is prohibited and is hereby defined as the intentional. SECTION 3.

BE IT FURTHER ORDAINED, that public personal exposure of the female breast or the sexual organs or fundament of any person of either sex.

SECTION 4.

BE IT FURTHER ORDAINED, that production, sale, exhibition, possession with intent to display, or distribution of any obscene, lewd, lascivious, prurient or sexually indecent print, advertisement, picture, photograph, written or printed composition, model, statute, instrument, motion picture, drawing, phonograph recording, tape or wire recording, or device or material of any kind.

BE IT FURTHER ORDAINED that the performance of any dance, song, or act in any public place, or in any public manner representing or portraying or reasonably calculated to represent or portray any act of sexual intercourse between male and female persons, or any act of perverse sexual itnercourse or contact, or unnatural carnal copulation, between persons of any sex, or between persons and animals.

OR FURTHER, the performance in any public place, or any public manner of any obscene, lewd, lustful, lascivious, prurient or sexually indecent dance, or the rendition of any obscene, lewd, lustful, lascivious, prurient or sexually indecent song or recitation.

SECTION 6.

BE IT FURTHER ORDAINED, PRODUCTION, POSSESSION WITH INTENT to display, exhibition, distribution, or sale of any literature as defined herein containing one or more pictures of nude or semi-nude female persons, wherein the female breast or any sexual organ is shown or exhibited, and where, because of the number or manner of portrayal in which such pictures are displayed in such literature, they are designed to appeal predominantly to the prurient interest.

SECTION 7.

BE IT FURTHER ORDAINED, that it shall also be unlawful for any person to attempt to commit any of the violations set forth in this section.

SECTION 8.

BE IT FURTHER ORDAINED, that any person upon conviction of a violation of this section shall be sentenced to serve not more than ninety (90) days, or pay a fine of not more than one hundred dollars ($100.00) or both, in the discretion of the Court.

BE IT FURTHER ORDAINED, that persons convicted of an attempt to violate this section shall be sentenced to not more than one-half of the maximum penalty prescribed, or pay not more than half of the maximum fine or both, as set forth above.

SECTION 9.

BE IT FURTHER ORDAINED, that the word literature as used herein means and includes a book, booklet, pamphlet, leaflet, brochure, circular, folder, handbill or magazine. The word picture as used herein means and includes any photograph, lithograph, drawing, sketch, abstract, poster, painting, figure, image, silhouette, representation or facsimile.

SECTION 10.

BE IT FURTHER ORDAINED, that this Ordinance shall be published in the Official Journal of the Parish, the St. Bernard Voice.

This Ordinance having been submitted to a vote, the vote thereon was as follows:

YEAS: Henry C. Schindler, Jr., Joseph V. Papania, Peter N. Huff, Peter Perniciaro, Louis P. Munster, John W. Booth, Sr., Claude S. Mumphrey, Celestine Melerine, Edward L. Jeanfreau, and Mrs. Blanche Molero. NAYS: None.

ABSENT: None.

And the Ordinance was declared adopted on this, the 2nd day of November, 1960.

/S./ VALENTINE RIESS,

(Valentine Riess), President.

/S./ JOSEPH E. SORCI,

(Joseph E. Sorci), Secretary.

I CERTIFY THAT the above and foregoing is a true and correct copy of an ordinance adopted by the St. Bernard Parish Police Jury at a Regular meeting held at Chalmette, Louisiana, in the Police Jury Room at the Courthouse Annex on the 2nd day of November, 1960.

Witness my hand and the Seal of the St. Bernard Parish Police Jury this 11th day of February, 1969.

/S./ R. M. McDOUGALL,

(R. M. McDougall), Secretary.