Citizens for a Better Environment, Inc., on Behalf of Itselfand Its Employees, et al., Plaintiffs-appellants, v. Nassau County et al., Defendants-appellees, 488 F.2d 1353 (2d Cir. 1973)

This appeal from denial of a motion for preliminary injunction in the United States District Court for the Eastern District of New York, Anthony J. Travia, Judge, involves the narrow issue of whether plaintiffs are entitled to a preliminary injunction to restrain the police departments of two Long Island counties from enforcing local solicitation ordinances against plaintiffs' door-to-door educational and fund-raising campaign. We stress this narrow scope, because while it is true that underlying this case is the always delicate balance between one man's right to express himself and another's right to be left alone, that troublesome issue is not presented in this appeal. Rather we are asked-as was the district court-to determine whether under state and local law the plaintiffs are completely exempt from local solicitation ordinances which even they concede to be fundamentally valid.¹  For a number of reasons, we agree that it would have been improper for the district court to have made that determination on motion for a preliminary injunction based on nothing more than the conflicting declarations of the parties. We affirm the denial of preliminary injunction.

Citizens for a Better Environment ("CBE") is a non-profit, tax-exempt organization registered as such with the Internal Revenue Service under Sec. 501 of the Internal Revenue Code.²  CBE is also registered with the New York State Department of Social Services and the state Attorney General's Office pursuant to New York statutes regulating the activities of "charitable" organizations. However, it must be noted at the outset that such registration means only that the registrant holds itself out as a charity, since the broad statutory definition of "charitable organization" includes:

Any benevolent, philanthropic, patriotic, or eleemosynary person or one purporting to be such.

New York Social Welfare Law, Sec. 481, subd. 1 (1966) McKinney's Consol.Laws, c. 55 [emphasis added].

CBE's primary activity is sending its employees-a number of whom are individual plaintiffs in this action-door-to-door to talk with residents about environmental problems, distribute the organization's literature, and solicit contributions for CBE and other environmental groups. Plaintiffs note that in these solicitations, no employee has ever been charged with trespass, disturbing the peace, or a violation of any other law designed to protect life or property.³ 

But between January and May of 1973, at least twenty-six CBE employees were issued appearance tickets for violating local "Hawkers, Peddlers and Solicitors" ordinances in Nassau and Suffolk Counties.⁴  Though the details of these ordinances vary slightly, they all require the licensing of those within their ambit and limit somewhat the time and scope of their solicitations.⁵  However, the ordinances also uniformly exempt "charitable" organizations, and it is, therefore, on the interpretation of such exemptions that this case will ultimately turn.

CBE contends that its non-profit nature, together with its registration under the state solicitation statutes, demonstrates conclusively that it is so exempt. The county officials counter that the state registration proves only that CBE has declared itself a "charitable organization" to state authorities who, while registering CBE, have carefully declined to put their imprimatur on it as a true "charity."⁶  The officials further argue that the fact that CBE raises funds for other environmental groups makes it a "professional fund raiser," and not a charity, under the same state law:⁷ 

Professional fund raiser. Any person who for compensation or other consideration plans, conducts, manages, or carries on any drive or campaign in this state for the purpose of soliciting contributions for or on behalf of any charitable organization or any other person, or who engages in the business of, or holds himself out to persons in this state as independently engaged in the business of soliciting contributions for such purpose. A bona fide officer or employee of a charitable organization shall not be deemed a professional fund raiser.

New York Social Welfare Law Sec. 482-e (1), McKinney's Consol.Laws c. 55.

Finally, they argue that the fact that CBE allows its employees to keep twenty-five percent of all they solicit, makes the individual plaintiff-employees "solicitors" who must also register with the state:⁸ 

Solicitor.

Any person who is employed or retained for compensation by a professional fund raiser to solicit contributions for charitable purposes from persons in this state.

New York Social Welfare Law Sec. 482-e (2); see Sec. 482-h, McKinney's Consol. Laws c. 55.

Following the ticketing of its employees, CBE and the ticketed individuals instituted this action under the Civil Rights Act, 42 U.S.C. § 1983, claiming the deprivation of various constitutional rights and asking for both damages and injunctive relief from the alleged campaign of police harassment.⁹  On June 22, 1973, the district court heard plaintiffs' motion for a preliminary injunction. Unfortunately, neither side was prepared to present any evidence to support their conflicting affidavits concerning CBE's activities and status. After hearing argument, the district judge denied the motion, stating that the papers and affidavits convinced him that there were serious questions concerning CBE's status that should be resolved initially in the state courts. However, the district court retained jurisdiction over all other elements of the case. Appellants are, therefore, appealing only the denial of the preliminary injunction.

I. The Denial of Relief for the Individual Plaintiffs

The initial contention of the county officials that the anti-injunction provision in 28 U.S.C. § 2283 operates as a complete bar to any injunctive relief in this case is clearly incorrect.¹⁰  In Mitchum v. Foster, 407 U.S. 225, 242-243 92 S. Ct. 2151, 32 L. Ed. 2d 705 (1972), the Supreme Court clearly held that the Civil Rights Act is within the "expressly authorized by Act of Congress" exception to Sec. 2283, and that, therefore, in such cases injunctive relief may be granted even to the extent of enjoining state court proceedings. But as the Mitchum Court immediately cautioned, this is not to say that a Sec. 1983 action is in any sense exempt from the normal rules of federal abstention and deference to the state courts:

[W]e do not question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding. These principles, in the context of state criminal prosecutions, were canvassed at length last Term in Younger v. Harris, 401 U.S. 37 [91 S. Ct. 746, 27 L. Ed. 2d 669], and its companion cases. They are principles that have been emphasized by this Court many times in the past. Fenner v. Boykin, 271 U.S. 240 [46 S. Ct. 492, 70 L. Ed. 927]; Spielman Motor Sales Co. v. Dodge, 295 U.S. 89 [55 S. Ct. 678, 79 L. Ed. 1322]; Beal v. Missouri Pac. R. Co., 312 U.S. 45 [61 S. Ct. 418, 85 L. Ed. 577]; Watson v. Buck, 313 U.S. 387 [61 S. Ct. 962, 85 L. Ed. 1416]; Williams v. Miller, 317 U.S. 599 [63 S. Ct. 258, 87 L. Ed. 489]; Douglas v. City of Jeannette, 319 U.S. 157 [63 S. Ct. 877, 87 L. Ed. 1324]; Stefanelli v. Minard, 342 U.S. 117 [72 S. Ct. 118, 96 L. Ed. 138]; Cameron v. Johnson, 390 U.S. 611 [88 S. Ct. 1335, 20 L. Ed. 2d 182].

Id. at 243, 92 S. Ct. at 2162. See also, 407 U.S. 243-244, 92 S. Ct. 2151 (Burger, C. J., concurring).

Thus, to the extent the individual plaintiffs are seeking to enjoin the criminal actions pending against them, Younger must control. There, the Court reviewed a number of its prior decisions in holding that where a federal court is asked to enjoin state criminal proceedings, "even irreparable injury is insufficient unless it is both 'great and immediate."' 401 U.S. 37, 46, 91 S. Ct. 746, 751, 27 L. Ed. 2d 669 (1971).

Appellants seek to avoid Younger and its companion cases,¹¹  by comparing this case to Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), the most notable exception to the Younger philosophy of federal restraint. But as summarized in Younger, Dombrowski involved an extraordinary set of circumstances:

The appellants in Dombrowski had offered to prove that their offices had been raided and all their files and records seized pursuant to search and arrest warrants that were later summarily vacated by a state judge for lack of probable cause. They also offered to prove that despite the state court order quashing the warrants and suppressing the evidence seized, the prosecutor was continuing to threaten to initiate new prosecutions of appellants under the same statutes, was holding public hearings at which photostatic copies of the illegally seized documents were being used, and was threatening to use other copies of the illegally seized documents to obtain grand jury indictments against the appellants on charges of violating the same statutes.

401 U.S. 37, 48, 91 S. Ct. 746, 752, 27 L. Ed. 2d 669 (1971). See also, Dombrowski v. Pfister, 380 U.S. 479, 487-488, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965).

While the plaintiffs here have alleged police harassment, they have not suggested, and certainly have not proven, any of the specific harassing tactics involved in Dombrowski. As only one important point of distinction, where in Dombrowski the state courts had previously rejected the prosecutor's sham case, here they have had no opportunity to consider the real questions about CBE's status under state and local law. In this regard, it must be remembered that the plaintiffs challenge only the application, and not the fundamental validity, of the local ordinances.

Nor has CBE suggested any motive for this alleged campaign of police harassment-unless we are to believe that, as a general rule, environmentalists in 1973 Long Island are as feared and despised as were civil rights activists in 1963 Louisiana. In short, we believe the conflicting affidavits before the district court hardly demonstrate the bad faith harassment necessary to enjoin a pending state criminal action.

Finally, we wish to note in this regard that both this court and the district court have been assured that the individual plaintiffs will be tried in the immediate future and that whatever delay has occurred thus far has been due to the mutual agreement of the parties to litigate this issue in the federal courts. We trust that now that we have made it clear that the question of CBE's status belongs, at least initially, in the state courts, these rather routine cases will be tried as soon as possible. Should county officials delay in providing such a speedy resolution of the key issue in this case, the plaintiffs would, of course, be free to return to the district court for injunctive relief against what might then appear to be purely harassment prosecutions. See Broughton v. Brewer, 298 F. Supp. 260, 264, 266-267 (S.D.-N.D. Ala. 1969) (three-judge court).

CBE argues that Younger bars injunctions only where the complaining party is an actual defendant in a pending criminal prosecution, and that since CBE itself is not such a defendant, the district court improperly denied its motion for an injunction protecting its solicitors from future police action. We find this distinction persuasive, but not dispositive.

It is, of course, true that Younger, is directed toward those actually involved in a criminal proceeding. Indeed the first section of the Court's opinion is devoted to excluding from the remainder of the decision those plaintiffs who had not been indicted or threatened with criminal prosecution. Younger v. Harris, 401 U.S. 37, 41-42, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). However, the Court was careful to note that:

If these three [plaintiffs] had alleged that they would be prosecuted for the conduct they planned to engage in, and if the District Court had found this allegation to be true-either on the admission of the State's district attorney or on any other evidence-then a genuine controversy might be said to exist.

Id. at 42, 91 S. Ct. at 749.

CBE clearly meets this standard, for while it has not been charged with any offense, its very existence as a soliciting organization is obviously threatened by the fact that the police intend to continue to invoke the solicitation ordinances against its employees. This does not, of course, mean that CBE can seek to enjoin the individual cases already pending. It would be bizarre, and a clear frustration of Younger, to hold that a federal court can enjoin a valid state criminal prosecution merely because the case is of importance to some non-indicted third party.¹² 

But CBE's real interest in the proper application of the local solicitation ordinances does entitle it to seek injunctive relief against future police action against it or its solicitors. See Thoms v. Heffernan, 473 F.2d 478, 482-483 (2d Cir. 1973), petition for cert. filed April 9, 1973, 42 U.S.L.W. 3019 (1973). See also, Lake Carriers' Association v. Mac-Mullan, 406 U.S. 498, 509, 92 S. Ct. 1749, 32 L. Ed. 2d 257 (1972); Younger v. Harris, 401 U.S. 37, 55, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) (Stewart and Harlan, JJ., concurring).

In so holding we recognize, as did the court in Thoms, that the class of plaintiffs with a justiciable interest in the enforcement of a criminal statute, who are not also defendants in a criminal proceeding, is exceedingly narrow. See Thoms v. Heffernan, supra, at 483-485 of 473 F.2d. However we believe the Court in Younger did intend to preserve injunctive relief for such a narrowly defined class, and that CBE is within it. See Younger v. Harris, 401 U.S. 37, 42, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). Cf. Lewis v. Kugler, 446 F.2d 1343, 1349 (3d Cir. 1971).

However, while CBE is thus entitled to seek a preliminary injunction against future enforcement of the solicitation ordinances, we must agree with the district court that the organization failed to show it was entitled to one. It must be remembered that, even apart from the special requirements of Younger, such preliminary relief is within the equitable discretion of the trial court, and that it requires a showing of both a likelihood of prevailing on the merits and irreparable injury that can be avoided only by the court's immediate intervention. Brown v. Chote, 411 U.S. 452, 454-457, 93 S. Ct. 1732, 36 L. Ed. 2d 420 (1973); Berrigan v. Norton, 451 F.2d 790, 793 (2d Cir. 1971); Katz v. McAulay, 438 F.2d 1058, 1060 (2d Cir. 1971), cert. denied, 405 U.S. 933, 92 S. Ct. 930, 30 L. Ed. 2d 809 (1972); 7 J. Moore, Federal Practice p 65.04 [1-2] (2d ed. 1966). Here the conflicting affidavits before the district court failed to satisfy either burden.¹³ 

First, at the risk of becoming repetitious, it must again be noted that CBE does not question the validity of the local ordinances. This is not, therefore, an action challenging a statute or ordinance as facially invalid under the First Amendment-the type of case where abstention by a federal court has rightly been held to be unwarranted and unwise. See Zwickler v. Koota, 389 U.S. 241, 248-252, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967); Dombrowski v. Pfister, 380 U.S. 479, 483-485, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1964); Thoms v. Heffernan, 473 F.2d 478, 486 (2d Cir. 1973), petition for cert. filed April 9, 1973, 42 U.S.L.W. 3019 (1973); Long Island Moratorium Committee v. Cahn, 437 F.2d 344, 345-350 (2d Cir. 1970). Rather it is one involving the application and interpretation of concededly valid state and local laws-the type of case where abstention is certainly prudent if not mandated. See Askew v. Hargrave, 401 U.S. 476, 477-478, 91 S. Ct. 856, 28 L. Ed. 2d 196 (1971); Reetz v. Bozanich, 397 U.S. 82, 86-87, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970); Harman v. Forssenius, 380 U.S. 528, 534-535, 85 S. Ct. 1177, 14 L. Ed. 2d 50 (1965); Russo v. Kirby, 453 F.2d 548, 552 (2d Cir. 1971); Reid v. Board of Education of City of New York, 453 F.2d 238, 241-243 (2d Cir. 1971).

Here the issues of state and local law, while perhaps not complex, are open to honest doubt. Most notably there are still serious questions concerning the nature of CBE's campaign and the import of its registration as a charitable organization under state law. Rather than attempt to resolve these issues in an evidentiary hearing, CBE rested its motion for preliminary relief on the conflicting affidavits and declarations of CBE and county officials. Given that these same issues were soon to be tried in the state courts, we can hardly say the district judge abused his discretion in denying this motion for a preliminary injunction.

Similarly, while CBE claimed that it was being irreparably injured by the local prosecutions and that only a federal injunction could save its operation, it failed to meet its heavy burden on the question of irreparable harm. Rather the court was again faced with conflicting affidavits as to CBE's attempt to comply with the local ordinances-a course of action that would have allowed CBE to continue its solicitation campaign while still itigating its right to be exempt from the ordinances completely.¹⁴ 

In sum, we find that by failing to demonstrate either a clear likelihood of ultimately prevailing on the merits or of unavoidable and irreparable injury, CBE failed to meet the heavy burden imposed on any plaintiff seeking a preliminary injunction. That burden obviously becomes all the greater when the critical unresolved questions involve interpretations of state and local law which will soon be before the state courts.

This is not, of course, to suggest that CBE's position may not ultimately prevail in the state or federal actions. We assume that the state courts will soon render judgments in the cases of the individual solicitors, and that the district court will proceed with all deliberate speed to try the plaintiffs' civil rights action. Should the district court find that plaintiffs have in fact been denied their civil rights by arbitrary police action, then damages and permanent injunctive relief would properly be in order. But we cannot say that faced with an array of conflicting, selfserving affidavits, the district court abused its discretion in denying preliminary relief.

The denial of preliminary injunction is affirmed.

MULLIGAN, Circuit Judge (concurring):

I agree with the result reached by the majority here and concur separately only because I disagree with the dicta that CBE has standing to enjoin future police action against it or its solicitors. There is no threat by the defendants here to bring any criminal prosecutions against CBE. The only harm being suffered by CBE results from the activities of its solicitors. The local police and agencies who were joined here as defendants, while they do have an interest in protecting their citizens from the harassment of unlicensed solicitation, do not have any jurisdiction over or direct interest in the bona fides of CBE's status as a charitable corporation. This is the responsibility of the Attorney General of the State of New York or the Internal Revenue Service, neither of which is a party here and neither of which has apparently threatened any action against CBE. Justiciability not only involves the requirement that the plaintiff have some interest threatened but that the defendant should have an interest or responsibility to controvert it. See Holtzman v. Schlesinger, 484 F.2d 1307, 1315 (2d Cir. 1973). Hence, while Thoms v. Heffernan, 473 F.2d 478 (2d Cir. 1973) would support an action by other solicitors who are threatened precisely as those individual plaintiffs here are, I would not extend it to include the corporate entity whose status is properly the concern of State and Federal agencies not joined as defendants.

The Fifth Circuit reached a result contrary to Thoms in Becker v. Thompson, 459 F.2d 919, rehearing and rehearing en banc denied, 463 F.2d 1338 (1972) and the Supreme Court has granted certiorari (410 U.S. 953, 93 S. Ct. 1424, 35 L. Ed. 2d 686 (1973)) to consider the case.

Perhaps the Court's opinion there will cast light upon this question, which is hardly as clear as a mountain lake in springtime.