GOLDEN, ACTING DISTRICT ATTORNEY OF KINGS COUNTY v. ZWICKLER.
No. 370.
Argued January 16, 1969.
Decided March 4, 1969.
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. Zwickler had been convicted of violating this provision by distributing 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. The complaint alleged that the 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 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:
“The attempt of defendant to moot the controversy and thus to abort a declaration of constitutional invalidity by citing the circumstance that the Congressman concerning whom the Zwickler handbill was published has since become a New York State Supreme Court Justice must fail. When this action was initiated the controversy was genuine, substantial and immediate, even though the date of the election to which the literature was pertinent had already passed.
“. . . The fortuitous circumstance that the candidate in relation to whose bid for office the anonymous handbill was circulated had, while vindication inched tediously forward, removed himself from the role of target of the 1964 handbill does not moot the plaintiff’s further and far broader right to a general adjudication of unconstitutionality his complaint prays for. We see no reason to question Zwickler’s assertion that the challenged statute currently impinges upon his freedom of speech by deterring him from again distributing anonymous handbills. His own interest as well as that of others who would with like anonymity practise free speech in a political environment persuade us to the justice of his plea.” 290 F. Supp. 244, 248, 249 (1968).
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 “[wjhen 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. We now undertake that inquiry.
“[TJhe federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, ‘concrete legal issues, presented in actual cases, not abstractions/ are requisite. This is as true of declaratory judgments as any other field.” United Public Workers of America v. Mitchell, 330 U. S. 75, 89 (1947). “The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. 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 (1941).
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. 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. 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 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 power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough.”
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.
It is so ordered.
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 ...”
The text of the 1964 handbill is as follows:
“REPRESENTATIVE MULTER — EXPLAIN YOUR POSITIONS “AID TO NASSER
“On September 2, 1964, an amendment was proposed to a foreign aid bill (Public Law 480). In substance, it would have cut off all aid to the United Arab Republic. Congressman Multer spoke at length against the amendment, and in his own words, urged its defeat ‘as earnestly as I can.’ He stated that his position was based on ‘humanitarian instinct.’ (Congressional Record 20792.)
“In this respect, the following should be noted
“(a) Congressman Multer’s stand permits the diversion of funds by Dictator Nasser to his armaments buildup.
“(b) The United Arab Republic is also a recipient of aid from Communist Russia.
“(c) Egypt is now employing the technical skills of scientists, formerly under the employ of the Nazis.
“(d) Congressman Multer debated against the amendment on the eve of the summit conference held in Cairo by 13 Arab States which are threatening the peace of the Near East and the State of Israel in particular.
“SOVIET ANTI-SEMITISM
“The 1964 Foreign Aid bill was passed in the United States Senate with an amendment sponsored by Senator Abraham Ribicoff (D., Conn.) that strongly condemned the anti-Semitic practices of the Soviet Union. When this issue was brought to the House-Senate conferees, a much more general statement decrying all types of religious bigotry was adopted.
“Representative Multer praised this ‘watered down’ measure on the House floor, and stated:
“ ‘While the Senate version did point the finger directly at Soviet Russia, the version as finally adopted, I think, is much the better one.
“ ‘I believe, instead of pointing the finger at the culprit now before the bar of world public opinion where it is being so severely condemned, it is much better that this Congress go on record as it is doing now, against religious persecution wherever it may raise its ugly head.’ (Congressional Record 22850.)
“WHY MR. MULTER, WHY? ? ? ? ?”
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.)
The former Congressman’s term of office as a State Supreme Court Justice is 14 years.
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.
attorney general of the United States, or his office specified state board or department of education city, town, township, village, or borough government or governmental unit state commission, board, committee, or authority county government or county governmental unit, except school district court or judicial district state department or agency governmental employee or job applicant female governmental employee or job applicant minority governmental employee or job applicant minority female governmental employee or job applicant not listed among agencies in the first Administrative Action variable retired or former governmental employee U.S. House of Representatives interstate compact judge state legislature, house, or committee local governmental unit other than a county, city, town, township, village, or borough governmental official, or an official of an agency established under an interstate compact state or U.S. supreme court local school district or board of education U.S. Senate U.S. senator foreign nation or instrumentality state or local governmental taxpayer, or executor of the estate of state college or university United States State person accused, indicted, or suspected of crime advertising business or agency agent, fiduciary, trustee, or executor airplane manufacturer, or manufacturer of parts of airplanes airline distributor, importer, or exporter of alcoholic beverages alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked American Medical Association National Railroad Passenger Corp. amusement establishment, or recreational facility arrested person, or pretrial detainee attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association author, copyright holder bank, savings and loan, credit union, investment company bankrupt person or business, or business in reorganization establishment serving liquor by the glass, or package liquor store water transportation, stevedore bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines brewery, distillery broker, stock exchange, investment or securities firm construction industry bus or motorized passenger transportation vehicle business, corporation buyer, purchaser cable TV car dealer person convicted of crime tangible property, other than real estate, including contraband chemical company child, children, including adopted or illegitimate religious organization, institution, or person private club or facility coal company or coal mine operator computer business or manufacturer, hardware or software consumer, consumer organization creditor, including institution appearing as such; e.g., a finance company person allegedly criminally insane or mentally incompetent to stand trial defendant debtor real estate developer disabled person or disability benefit claimant distributor person subject to selective service, including conscientious objector drug manufacturer druggist, pharmacist, pharmacy employee, or job applicant, including beneficiaries of employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan electric equipment manufacturer electric or hydroelectric power utility, power cooperative, or gas and electric company eleemosynary institution or person environmental organization employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. farmer, farm worker, or farm organization father female employee or job applicant female movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of fisherman or fishing company food, meat packing, or processing company, stockyard foreign (non-American) nongovernmental entity franchiser franchisee lesbian, gay, bisexual, transexual person or organization person who guarantees another's obligations handicapped individual, or organization of devoted to health organization or person, nursing home, medical clinic or laboratory, chiropractor heir, or beneficiary, or person so claiming to be hospital, medical center husband, or ex-husband involuntarily committed mental patient Indian, including Indian tribe or nation insurance company, or surety inventor, patent assigner, trademark owner or holder investor injured person or legal entity, nonphysically and non-employment related juvenile government contractor holder of a license or permit, or applicant therefor magazine male medical or Medicaid claimant medical supply or manufacturing co. racial or ethnic minority employee or job applicant minority female employee or job applicant manufacturer management, executive officer, or director, of business entity military personnel, or dependent of, including reservist mining company or miner, excluding coal, oil, or pipeline company mother auto manufacturer newspaper, newsletter, journal of opinion, news service radio and television network, except cable tv nonprofit organization or business nonresident nuclear power plant or facility owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels shareholders to whom a tender offer is made tender offer oil company, or natural gas producer elderly person, or organization dedicated to the elderly out of state noncriminal defendant political action committee parent or parents parking lot or service patient of a health professional telephone, telecommunications, or telegraph company physician, MD or DO, dentist, or medical society public interest organization physically injured person, including wrongful death, who is not an employee pipe line company package, luggage, container political candidate, activist, committee, party, party member, organization, or elected official indigent, needy, welfare recipient indigent defendant private person prisoner, inmate of penal institution professional organization, business, or person probationer, or parolee protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer public utility publisher, publishing company radio station racial or ethnic minority person or organization protesting racial or ethnic segregation or discrimination racial or ethnic minority student or applicant for admission to an educational institution realtor journalist, columnist, member of the news media resident restaurant, food vendor retarded person, or mental incompetent retired or former employee railroad private school, college, or university seller or vendor shipper, including importer and exporter shopping center, mall spouse, or former spouse stockholder, shareholder, or bondholder retail business or outlet student, or applicant for admission to an educational institution taxpayer or executor of taxpayer's estate, federal only tenant or lessee theater, studio forest products, lumber, or logging company person traveling or wishing to travel abroad, or overseas travel agent trucking company, or motor carrier television station union member unemployed person or unemployment compensation applicant or claimant union, labor organization, or official of veteran voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) wholesale trade wife, or ex-wife witness, or person under subpoena network slave slave-owner bank of the united states timber company u.s. job applicants or employees Army and Air Force Exchange Service Atomic Energy Commission Secretary or administrative unit or personnel of the U.S. Air Force Department or Secretary of Agriculture Alien Property Custodian Secretary or administrative unit or personnel of the U.S. Army Board of Immigration Appeals Bureau of Indian Affairs Bonneville Power Administration Benefits Review Board Civil Aeronautics Board Bureau of the Census Central Intelligence Agency Commodity Futures Trading Commission Department or Secretary of Commerce Comptroller of Currency Consumer Product Safety Commission Civil Rights Commission Civil Service Commission, U.S. Customs Service or Commissioner of Customs Defense Base Closure and REalignment Commission Drug Enforcement Agency Department or Secretary of Defense (and Department or Secretary of War) Department or Secretary of Energy Department or Secretary of the Interior Department of Justice or Attorney General Department or Secretary of State Department or Secretary of Transportation Department or Secretary of Education U.S. Employees' Compensation Commission, or Commissioner Equal Employment Opportunity Commission Environmental Protection Agency or Administrator Federal Aviation Agency or Administration Federal Bureau of Investigation or Director Federal Bureau of Prisons Farm Credit Administration Federal Communications Commission (including a predecessor, Federal Radio Commission) Federal Credit Union Administration Food and Drug Administration Federal Deposit Insurance Corporation Federal Energy Administration Federal Election Commission Federal Energy Regulatory Commission Federal Housing Administration Federal Home Loan Bank Board Federal Labor Relations Authority Federal Maritime Board Federal Maritime Commission Farmers Home Administration Federal Parole Board Federal Power Commission Federal Railroad Administration Federal Reserve Board of Governors Federal Reserve System Federal Savings and Loan Insurance Corporation Federal Trade Commission Federal Works Administration, or Administrator General Accounting Office Comptroller General General Services Administration Department or Secretary of Health, Education and Welfare Department or Secretary of Health and Human Services Department or Secretary of Housing and Urban Development Interstate Commerce Commission Indian Claims Commission Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement Internal Revenue Service, Collector, Commissioner, or District Director of Information Security Oversight Office Department or Secretary of Labor Loyalty Review Board Legal Services Corporation Merit Systems Protection Board Multistate Tax Commission National Aeronautics and Space Administration Secretary or administrative unit of the U.S. Navy National Credit Union Administration National Endowment for the Arts National Enforcement Commission National Highway Traffic Safety Administration National Labor Relations Board, or regional office or officer National Mediation Board National Railroad Adjustment Board Nuclear Regulatory Commission National Security Agency Office of Economic Opportunity Office of Management and Budget Office of Price Administration, or Price Administrator Office of Personnel Management Occupational Safety and Health Administration Occupational Safety and Health Review Commission Office of Workers' Compensation Programs Patent Office, or Commissioner of, or Board of Appeals of Pay Board (established under the Economic Stabilization Act of 1970) Pension Benefit Guaranty Corporation U.S. Public Health Service Postal Rate Commission Provider Reimbursement Review Board Renegotiation Board Railroad Adjustment Board Railroad Retirement Board Subversive Activities Control Board Small Business Administration Securities and Exchange Commission Social Security Administration or Commissioner Selective Service System Department or Secretary of the Treasury Tennessee Valley Authority United States Forest Service United States Parole Commission Postal Service and Post Office, or Postmaster General, or Postmaster United States Sentencing Commission Veterans' Administration War Production Board Wage Stabilization Board General Land Office of Commissioners Transportation Security Administration Surface Transportation Board U.S. Shipping Board Emergency Fleet Corp. Reconstruction Finance Corp. Department or Secretary of Homeland Security Unidentifiable International Entity