Federal Interference with State Prosecutions: The Cases Dombrowski Forgot

Federal Interference with State Prosecutions: The Cases Dombrowski Forgot Douglas Laycockt Dombrowski v. Pfister held that in certain circumstances federal courts could enjoin threatened prosecutions under allegedly unconstitutional state statutes. This decision has generally been viewed as a significant but short-lived expansion of federal power. The conventional wisdom is that such injunctions were made available by Ex parte Young,2 substantially foreclosed by subsequent developments culminating in Douglas v. City of Jeanette,3 granted anew by Dombrowski, and greatly restricted once again in Younger v. Harris.4 The thesis of this article is that Dombrowski actually limited federal power. Careful review of the pre-Dombrowski precedents indicates that injunctions against threatened prosecutions issued routinely and rested on a sound doctrinal basis. What is significant about Dombrowski is not that an injunction issued, but that the injunction was treated as exceptional instead of routine and that new limitations on the availability of injunctions were introduced. If this thesis is accepted, Dombrowski presents important historical and jurisprudential problems. There is little evidence to suggest that Dombrowski's break with precedent was deliberate, and even if it were, this would not explain why the decision was widely received as a great victory for civil libertarians and the social activists of the sixties. In fact, Dombrowski appears to have been a mistake; incredibly, the Court and most of the profession seem to have overlooked the two preceding decades of Supreme Court practice. Such a mistake raises questions about the reliability of a legal system that depends on judicial opinions to formulate and transmit doctrine, and about the proper judicial response to its discovery. These broad questions have specific implications for the law currently governing federal prospective relief from unconstitutional t Assistant Professor of Law, The University of Chicago. Paul Bator, David Currie, Owen Fiss, William Hodes, John Langbein, Martin Redish, Geoffrey Stone, and Ralph Whitten offered helpful comments on earlier drafts. Paul Beach and Joseph Markowitz provided invaluable research assistance. 1 380 U.S. 479 (1965). 2 209 U.S. 123 (1908). 3 319 U.S. 157 (1943). 4 401 U.S. 37 (1971). 1979] Federal Interference with State Prosecutions state statutes-injunctions against enforcement or declaratory judgments of unconstitutionality.' I have argued elsewhere6 that the Younger doctrine denies prospective relief in situations in which supposedly adequate criminal remedies are not adequate at all. The most important of these involve citizens engaged in a continuing course of conduct who are prosecuted for past violations of an allegedly invalid state law and are unable to get prompt relief or authoritative resolution of their constitutional claims with respect to future violations. Since, as I will argue here, such undue extensions of Younger resulted at least in part from a mistaken view of the precedents, a view originating in Dombrowski, the Court has a special obligation to adjust the Younger doctrine in light of the arguments and authority previously overlooked. The first three parts of this article review Dombrowski, the preDombrowski precedents, and the doctrinal effects of Dombrowski's break with those precedents. Part IV explores the very sketchy evidence available on the question why Dombrowski was decided as it was. Finally, Part V briefly poses the larger jurisprudential questions raised by judicial mistakes and then considers the implications for the Younger doctrine of a corrected understanding of preDombrowski law. I. THE CoNvETIoNAL VIEw OF Dombrowski Dombrowski arose out of a dispute between a civil rights organization and various Louisiana officials. The individual plaintiffs had been arrested and charged with violating two communist-control laws. 7 A state court had subsequently quashed the arrest warrants, but state officials continued to threaten prosecution. The plaintiffs then filed the federal lawsuit, seeking an injunction against further proceedings under the two laws. Judge Wisdom, sitting as one member of a three-judge district court, issued a temporary restraining order. The three-judge court then assembled and, over Judge Wisdom's dissent, vacated the restraining order and dismissed the complaint.' The opinion, citing Douglas v. City of Jeanette,I held that federal courts should not enjoin state prosecutions in the absence of extraordinary circumstances not found to be present. Following this I See Laycock, FederalInterference with State Prosecutions: The Need for Prospective Relief, 1977 Sup. CT. RsV. 193, 200. Id. at 199-222. 380 U.S. at 482 n.1. Dombrowski v. Pfister, 227 F. Supp. 556 (E.D. La. 1964), rev'd, 380 U.S. 479 (1965). 319 U.S. 157 (1943). The University of Chicago Law Review [46:636 decision, the plaintiffs were indicted under one 0 of the two statutes. The Supreme Court reversed, holding the statute under which the plaintiffs had been indicted to be an overbroad regulation of speech" and disposing of four arguments against reaching the merits: Pullman abstention,' 2 the ripeness requirement, the AntiInjunction Act,' 3 and the irreparable injury requirement. Three of these arguments need not detain us. The Court's treatment of Pullman abstention,' 4 a postponement of federal jurisdiction if a state court might by statutory construction obviate the need to reach a difficult constitutional question, had little immediate impact on the issues involved. The ripeness requirement, which precludes prospective relief unless there is a reasonable prospect that the challenged law will be enforced, was held met with respect to only one of the statutes, a remarkably stringent application of the requirement.'5 The Anti-Injunction Act, which prohibits a federal court from issuing an injunction to stay proceedings that are already pending in a state court," was construed narrowly and held inapplicable. The Court found that the indictments had not been pending at the time the federal complaint was filed and would not have been pending at all if Judge Wisdom's restraining order had not been erroneously vacated. 8 Apparently the state-court proceedings on the warrants and motions to quash did not count. These three holdings are of only limited importance to the present analysis, but their implications will be discussed where relevant in Parts III and IV. The heart of Dombrowski, and the concern of this article, is its treatment of the irreparable injury requirement.'9 The defendants " 380 U.S. at 488. " Id. at 492-96. 12 See Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941); Field, The Abstention Doctrine Today, 125 U. PA. L. REv. 590 (1977); F.ield, Abstention in ConstitutionalCases: The Scope of the Pullman Abstention Doctrine, 122 U. PA. L. Rav. 1071 (1974). " 28 U.S.C. § 2283 (1976). " 380 U.S. at 489-92 (Pullman abstention inappropriate (...truncated)