Federal Courts and Procedure--Concurrent and Conflicting Jurisdiction--The Abstention Doctrine [Zwickler v. Koota, 389 U.S. 241 (1967)]

Case Western Reserve Law Review Volume 19 | Issue 4 1968 Federal Courts and Procedure--Concurrent and Conflicting Jurisdiction--The Abstention Doctrine [Zwickler v. Koota, 389 U.S. 241 (1967)] James L. Hildebrand Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation James L. Hildebrand, Federal Courts and Procedure--Concurrent and Conflicting Jurisdiction--The Abstention Doctrine [Zwickler v. Koota, 389 U.S. 241 (1967)], 19 Case W. Res. L. Rev. 1089 (1968) Available at: https://scholarlycommons.law.case.edu/caselrev/vol19/iss4/18 This Recent Decisions is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 1089 19681 Recent Decisions FEDERAL COURTS AND PROCEDURE - CONCURRENT AND CONFLICTING JURISDICTION - THE ABSTENTION DOCTRINE Zwickler v. Koota, 389 U.S. 241 (1967). Under the federal abstention doctrine, a litigant who is properly before a federal district court seeking relief on the ground that a State statute violates his federally protected constitutional rights may be denied a federal forum and shunted off to the State courts for a decision on the issues in question. Before the United States Supreme Court's recent decision in Zwickler v. Koota' it was unclear when a federal court might abstain from deciding a case, involving federal and State questions of law,2 to allow the State courts a reasonable opportunity to pass judgment upon the case.3 It was apparent, however, that if the federal questions were not litigated on the State court level the plaintiff could go back to the federal forum for a determination of these issues if the federal court had only stayed its proceedings and not dismissed the case.4 Sanford Zwickler was convicted under a New York law prohibiting dissemination of anonymous political leaflets.' (Similar statutes are presently in effect in 36 other States.)' Zwickler had 1389 U.S. 241 (1967). 2 Once a federal court's jurisdiction has been properly invoked, the court has the power to decide the case before it even on purely State questions of law. Siler v. Louisville & N.R.R., 213 U.S. 175 (1909). For a discussion of Siler, see Lewis, The High Court: Final ... But Fallible, 19 CASE W. RES L. REV. 528, 598-99 (1968). 3 See cases cited in note 51 infra. It should be emphasized that the Zwickler decision applies only to cases in the area of free expression and first amendment rights. The Court has refused to clarify the role of the abstention doctrine in other areas of constitutional rights. See Fenster v. Leary, 386 U.S. 10 (1967) (mem.). In this decision the Court affirmed a federal district court's application of the abstention doctrine where a State vagrancy statute was challenged as violating the eighth, 13th, and 14th amendments. For a discussion of the effect of this per curiam decision, see Lewis, supra note 2, at 633. See also note 54 infra. 4England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411 (1964) (discussed in note 57 infra). Concerning dismissal, see note 10 infra. 5 N.Y. PEN. LAw § 781-b (McKinney 1954), as amended, N.Y. ELEC. LAW § 457 (McKinney Supp. 1967). This statute makes it a crime to distribute in quantity, among other things, any handbill for [anyone] which contains any statement concerning any candidate in connection with any election of public officers, without also printing thereon the name and post office address of the printer thereof and of the person at whose instance such handbill is so distributed. 389 U.S. at 242 (emphasis added). GALA. CODE tit. 17, § 282 (1958); ARK. STAT. ANN. § 3-1412 (1947); CAL. 1090 CASE WESTERN RESERVE LAW REVIEW [Vol. 19:1089 violated the statute by passing out anonymous handbills that were critical of the record of a United States Congressman seeking reelection. His conviction was reversed on State law grounds by a New York Supreme Court, because the prosecution failed to show that Zwickler had distributed leaflets "in quantity" as required by the statute.' The New York Court of Appeals affirmed this reversal without opinion.8 Fearing future arrests for distribution "in quantity," Zwickler invoked the jurisdiction of a three-judge federal district court9 and sought declaratory and injunctive relief on the ground that due to "overbreadth" the New York statute was repugnant to the constitutional guarantees of free expression. The three-judge court, with one judge dissenting, applied the doctrine of abstention and dismissed"0 the case because Zwickler had not ELEC CODE ANN. § 12,047 (West Supp. 1967); COLO. REV. STAT. ANN. § 49-21-50 (1963); FLA. STAT. ANN. § 104.37 (Supp. 1967); IDAHO CODE ANN. § 34-104 (1963); ILL. ANN. STAT. ch. 46, § 26-1 (Smith-Hurd 1965); IOWA CODE ANN.§ 738.22 (1950); KAN. STAT. ANN. § 25-1714 (1964); Ky. REV. STAT. §§ 123.095, 123.130 (Supp. 1967); LA.REV. STAT. § 18:1531 (1950); ME. REV.STAT. ANN. tit. 21, 5 1575 (1964); MD.ANN.CODE art. 33, § 221 (1957); MASS.ANN. LAWS ch. 56, 55 39, 41 (1952); MicH.STAT. ANN.§ 6.1914 (1956); MINN.STAT. § 211.08 (Supp. 1967); Miss. CODE ANN. 5 1341 (1956); Mo. ANN.STAT.§ 129.300 (1966); MONT.REV.CODES ANN.5 94-1475 (Supp. 1967); NEB.REV. STAT. § 32-1131 (Supp. 1965); N.H. REV. STAT. ANN.5 70.14 (Supp. 1967); N.J. STAT. ANN. §§ 19.3438.1-4 (1964); N.D. CENT. CODE § 16-20-17.1 (Supp. 1967); OHIO REV. CODE § 3599.09 (Page Supp. 1966); ORE. REv. STAT. § 260.360 (1967); PA. STAT. ANN. tit. 25, 5 3546 (1963); R.I. GEN. LAWS ANN. § 17-23-2 (Supp. 1967); S.D. CODE § 16.9930 (Supp. 1960); TENN. CODE ANN. § 2-2238 (1955); TEX. ELEC. CODE art. 14.10 (1967); UTAH CODE ANN. § 20-14-24 (1953); VT. STAT. ANN. tit 17, § 2022 (Supp. 1967); VA. CODE ANN. 5 24-456 (1950); WASH. REv. CODE ANN. § 29.85.270 (1965); W. VA. CODE ANN. § 3-8-12 (1966); WIS. STAT. ANN. § 12.16 (1967). See also 18 U.S.C. § 612 (1964). 7 People v.Zwickler, 16 N.Y.2d 1069, 213 N.E.2d 467, 266 N.Y.S.2d 140 (1965). 81,d. ) Jurisdiction was obtained under the Civil Rights Act of 1957, 28 U.S.C. § 1343 (1964), which gives original jurisdiction to federal district courts for civil actions to redress the deprivation, under State laws, of rights, privileges or immunities secured by the Federal Constitution, and under the Declaratory Judgment Act, 28 U.S.C. § 2201 (1964). 10 It should be noted that on appeal, the United States Supreme Court in Zwickler stated: It is better practice, in a case raising a federal constitutional or statutory claim, to retain jurisdiction, rather than to dismiss, see Note, Federal-Question Abstention: Justice Frankfurter's Doctrine in an Activist Era, 80 Harv. L. Rev. 604 (1967), but other courts have also ordered dismissal. Compare Government & Civic Employees OrganizingCommittee, CIO v. Windsor,353 U.S. 36 (...truncated)