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GOLDEN v. ZWICKLER, 394 U.S. 103 (1969)

U.S. Supreme Court

GOLDEN v. ZWICKLER, 394 U.S. 103 (1969)

394 U.S. 103

GOLDEN, ACTING DISTRICT ATTORNEY OF KINGS COUNTY v. ZWICKLER.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF NEW YORK. No. 370.
Argued January 16, 1969.
Decided March 4, 1969.

Following reversal on state law grounds of appellee's conviction of violating a New York statute by distributing anonymous handbills in connection with the 1964 congressional election, appellee in 1966 sought a declaratory judgment in the District Court that the statute was unconstitutional. Appellee alleged that he intended to distribute the 1964 handbill and "similar anonymous leaflets" in connection with the forthcoming 1966 election (when, it was alleged, the Congressman would stand for re-election), and in subsequent elections. The District Court abstained from passing on appellee's claim for a declaratory judgment. This Court on appeal held that such abstention was error and remanded the case for resolution of the declaratory judgment issue. Zwickler v. Koota, 389 U.S. 241 . The Court held that on the remand appellee would have to "establish the elements governing the issuance of a declaratory judgment," noting as relevant to that question that the Congressman who had been the target of appellee's handbills had meanwhile been elected to the Supreme Court of New York. On remand, the District Court, without hearing evidence on the existence of the elements governing the issuance of a declaratory judgment, held that the essential elements to such relief existed "[w]hen this action was initiated" and that it was immaterial that the Congressman would not be a candidate for re-election, and concluded that the statute impinged on appellee's freedom of speech by deterring him from again distributing anonymous handbills. Held:

290 F. Supp. 244, reversed and remanded.

Samuel A. Hirshowitz, First Assistant Attorney General of New York, argued the cause for appellant. With him on the brief were Louis J. Lefkowitz, Attorney General, and Brenda Soloff, Assistant Attorney General.

Emanuel Redfield argued the cause and filed a brief for appellee.

Joseph B. Robison and Beverly Coleman filed a brief for the American Jewish Congress, as amicus curiae, urging affirmance.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

This case was here before as Zwickler v. Koota, 389 U.S. 241 (1967). We there held that the three-judge District Court for the Eastern District of New York erred in abstaining from deciding whether Zwickler, appellee in the instant case, was entitled to a declaratory judgment respecting the constitutionality of New York Penal Law 781-b, now New York Election Law 457, and we remanded to the District Court for a determination of that question. Section 781-b made it a crime to distribute anonymous literature in connection with an election campaign. 1 Zwickler had been convicted of violating this provision by distributing [394 U.S. 103, 105]   anonymous handbills in connection with the 1964 congressional election. That conviction was reversed, on state law grounds, by the New York Supreme Court, Appellate Term. The New York Court of Appeals affirmed in 1965 and filed a memorandum which stated that constitutional questions had not been reached. 16 N. Y. 2d 1069, 213 N. E. 2d 467. A few months thereafter, on April 22, 1966, Zwickler brought this suit.

The complaint sets forth the facts regarding the prosecution and its termination. A Congressman standing for re-election in 1964 was criticized in the anonymous handbill for opposing two amendments to the 1964 Foreign Aid bill. 2 The complaint alleged that the [394 U.S. 103, 106]   Congressman "will become a candidate in 1966 for reelection . . . and has been a political figure and public official for many years," and that Zwickler "desires and intends to distribute . . . at the place where he had previously done so and at various places in said [Kings] County, the anonymous leaflet herein described . . . and similar anonymous leaflets . . . at any time during the election campaign of 1966 and in subsequent election campaigns or in connection with any election of party officials, nomination for public office and party position that may occur subsequent to said election campaign of 1966."

It was disclosed on the argument of Zwickler v. Koota in this Court that the Congressman had left the House of Representatives for a place on the Supreme Court of New York. We deemed this development relevant to the question whether the prerequisites for the issuance of a declaratory judgment were present. We noted, however, that, probably because of the decision to abstain, the parties had not addressed themselves to, and the District Court had not adjudicated, that question. 389 U.S., at 244 , n. 3. Therefore, we directed that on the remand "appellant [Zwickler] must establish the elements governing the issuance of a declaratory [394 U.S. 103, 107]   judgment." Id., at 252, n. 15; see also id., at 252-253, n. 16.

The District Court hearing on the remand was limited largely to the oral argument of counsel, and no testimony was taken concerning the existence of the elements governing the issuance of a declaratory judgment. The three-judge court held that the prerequisites of a declaratory judgment had been established by the facts alleged in the complaint, and that the fact that the Congressman who was the original target of the handbills would not again stand for re-election did not affect the question. The court said:

We noted probable jurisdiction sub nom. Koota v. Zwickler, 393 U.S. 818 (1968). We reverse.

The District Court erred in holding that Zwickler was entitled to declaratory relief if the elements essential to that relief existed "[w]hen this action was initiated." The proper inquiry was whether a "controversy" requisite to relief under the Declaratory Judgment Act existed at the time of the hearing on the remand. 3 We now undertake that inquiry.

We think that under all the circumstances of the case the fact that it was most unlikely that the Congressman would again be a candidate for Congress precluded a finding that there was "sufficient immediacy and reality" here. 4 The allegations of the complaint focus upon the then forthcoming 1966 election when, it was alleged, the Congressman would again stand for re-election. The anonymous handbills which the complaint identified as to be distributed in the 1966 and subsequent elections were the 1964 handbill and "similar anonymous leaflets." On the record therefore the only supportable conclusion was that Zwickler's sole concern was literature relating to the Congressman and his record. 5 Since the New York statute's prohibition of anonymous handbills applies only to handbills directly pertaining to election campaigns, and the prospect was neither real nor immediate of a campaign involving the Congressman, it was wholly conjectural that another occasion might arise when Zwickler might be prosecuted for distributing the handbills referred to in the complaint. His assertion in his brief that the former Congressman can be "a candidate for Congress again" is hardly a substitute for evidence that this is a prospect of "immediacy and reality." Thus the record is in sharp contrast to that in Evers v. Dwyer, 358 U.S. 202 (1958), relied upon by the District Court.

It was not enough to say, as did the District Court, that nevertheless Zwickler has a "further and far broader right to a general adjudication of unconstitutionality . . . [in] [h]is own interest as well as that of others [394 U.S. 103, 110]   who would with like anonymity practise free speech in a political environment . . . ." The constitutional question, First Amendment or otherwise, must be presented in the context of a specific live grievance. In United Public Workers of America v. Mitchell, supra, at 89-90, we said:

The same is true of the power to pass upon the constitutionality of state statutes. No federal court, whether this Court or a district court, has "jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies." Liverpool, N. Y. & P. S. S. Co. v. Commissioners, 113 U.S. 33, 39 (1885). (Emphasis added.) See also United States v. Raines, 362 U.S. 17, 21 (1960). The express limitation of the Declaratory Judgment Act to cases "of actual controversy" is explicit recognition of this principle.

We conclude that Zwickler did not establish the existence at the time of the hearing on the remand of the elements governing the issuance of a declaratory judgment, and therefore that the District Court should have dismissed his complaint. We accordingly intimate no view upon the correctness of the District Court's holding as to the constitutionality of the New York statute. The judgment of the District Court is reversed, and the case is remanded with direction to enter a new judgment dismissing the complaint.

Footnotes

[ Footnote 1 ] Section 781-b, in pertinent part, made it a misdemeanor to "distribute in quantity . . . any handbill . . . which contains any statement . . . concerning any political party, candidate . . . in connection with any election of public officers, party officials . . . without . . . reproducing thereon . . . the name and post-office address of the . . . person . . . at whose instance . . . such handbill . . . is so . . . distributed . . . ."

[ Footnote 2 ] The text of the 1964 handbill is as follows:

[ Footnote 3 ] The Declaratory Judgment Act, 28 U.S.C. 2201, expressly provides: "In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." (Emphasis added.)

[ Footnote 4 ] The former Congressman's term of office as a State Supreme Court Justice is 14 years.

[ Footnote 5 ] The allegation of the complaint that Zwickler might distribute anonymous handbills relating to "party officials" does not indicate otherwise. The Congressman held an elective party position as a district leader. See 290 F. Supp., at 248. [394 U.S. 103, 111]  

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