# Zwickler v. Koota/Concurrence Harlan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Harlan
United States Supreme Court
389 U.S. 241
Zwickler v. Koota
Argued: Oct. 12, 1967. --- Decided: Dec 5, 1967
Mr. Justice HARLAN, concurring in the judgment.
I agree that, in the circumstances of this case, the District Court should not have declined to adjudicate appellant's constitutional claims. I am, however, constrained by my uncertainty as to the implications of certain portions of the Court's opinion to state my views separately.
This Court has repeatedly indicated that 'abstention' is appropriate 'where the order to the parties to repair to the state court would clearly serve one of two important countervailing interests: either the avoidance of a premature and perhaps unnecessary decision of a serious federal constitutional question, or the avoidance of the hazard of unsettling some delicate balance in the area of federal-state relationships.' Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 32, 79 S.Ct. 1070, 1074, dissenting opinion). See generally Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152; Allegheny County v. Frank Mashuda Co., 360 U.S. 185, 188-189, 79 S.Ct. 1060, 1062-1063, 3 L.Ed.2d 1163. The first of these interests has been found in cases in which the federal constitutional issue might be mooted or 'presented in a different posture' by a state court determination of pertinent state law. See, e.g., Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; Spector Motor Service, Inc., v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725. The second of these interests has been found, for example, in situations in which the exercise of jurisdiction by a federal court would disrupt a state administrative process, Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; interfere with the collection of state taxes, Toomer v. Witsell, 334 U.S. 385, 392, 68 S.Ct. 1156, 1160, 92 L.Ed. 1460, or otherwise create 'needless friction' between the enforcement of state and federal policies. Louisiana Power & Light Co. v. City of Thibodaux, supra, 360 U.S., at 33, 79 S.Ct., at 1075. See also Harrison v. NAACP, supra.
I agree that the present situation is within none of these categories, and that the District Court should therefore not have dismissed, but proceeded to judgment on the issues in the case. In particular, I can find in this statute no room for a state construction which might obviate the need for a decision on the constitutional issue. If, however, the opinion of the Court is intended to suggest that the central, or even a principal, issue in deciding the propriety of abstention is whether the complaint has alleged 'overbreadth,' or only 'vagueness,' with respect to the New York statute in question, I cannot agree. My reasons are three. First, neither principle has ever been definitively delimited by this Court; a doctrine built upon their supposed differences would be likely to founder for lack of a foundation. See generally, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67. Second, there is no reason to suppose that a case involving allegations of overbreadth would inevitably be inappropriate for abstention; the federal court might nonetheless reasonably consider that its exercise of jurisdiction would create 'needless friction' with state officials, Louisiana Power & Light Co. v. City of Thibodaux, supra, 360 U.S., at 33, 79 S.Ct., at 1075, or it might reasonably conclude that a state court determination would present the federal issues 'in a different posture.' County of Allegheny v. Frank Mashuda Co., supra, 360 U.S., at 189, 79 S.Ct., at 1063. Third, such a standard might in effect reduce the abstention doctrine to a pleader's option; the fundamental interests served by the doctrine would be jettisoned whenever a complainant had sufficient foresight to insert into his pleading an allegation of overbreadth. I can see no proper alternative to a careful examination, in light of the interests served by abstention, of the circumstances of each case.
I agree with the Court, substantially for the reasons given in its opinion, that whether or not injunctive relief might ultimately prove appropriate in this instance is not a pertinent question at this stage of the matter.
I accordingly concur in the judgment of the Court, but in doing so wish to emphasize that, like the Court, I intimate no view whatever upon the merits of the constitutional challenge to this statute.

## Notes

* ↑ County of Allegheny v. Frank Mashuda Co., supra, 360 U.S., at 189, 79 S.Ct., at 1063.
* ↑ Unlike the Court, I obtain no assistance for this conclusion from the ubiquitous and slippery 'chilling effect' doctrine. Appellant might have sought in the state courts the declaratory relief he now asks. N.Y.Civ.Prac. § 3001. Given the state courts' disposition of appellant's earlier prosecution, he can scarcely maintain that those courts would not promptly provide any relief to which he is entitled. Absent such allegations, it is difficult to see how that doctrine can have the slightest relevance. See Dombrowski v. Pfister, 380 U.S. 479, 499, 85 S.Ct. 1116, 1127, 14 L.Ed.2d 22 (dissenting opinion). In these circumstances, to apply the amorphous chilling-effect doctrine would serve only to chill the interests sought to be maintained by abstention.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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