# Hicks v. Miranda/Dissent Stewart

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Burger
* Dissenting Opinion Stewart
Mr. Justice, Stewart, with whom Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall join, dissenting.
There are many aspects of the Court's opinion that seem to me open to serious challenge. This dissent, however, is directed only to Part III of the opinion, which holds that "[t]he District Court committed error in reaching the merits of this case despite the appellant's insistence that it be dismissed under Younger v. Harris... and Samuels v. Mackell...."
In Steffel v. Thompson, 415 U.S. 452, the Court unanimously held that the principles of equity, comity, and federalism embodied in Younger v. Harris, 401 U.S. 37, and Samuels v. Mackell, 401 U.S. 66, do not preclude a federal district court from entertaining an action to declare unconstitutional a state criminal statute when a state criminal prosecution is threatened but not pending at the time the federal complaint is filed. Today the Court holds that the Steffel decision is inoperative if a state criminal charge is filed at any point after the commencement of the federal action "before any proceedings of substance on the merits have taken place in the federal court." Ante, at 349. Any other rule, says the Court, would "trivialize" the principles of Younger v. Harris. I think this ruling "trivializes" Steffel, decided just last Term, and is inconsistent with those same principles of equity, comity, and federalism.
[p. 354] There is, to be sure, something unseemly about having the applicability of the Younger doctrine turn solely on the outcome of a race to the courthouse. The rule the Court adopts today, however, does not eliminate that race; it merely permits the State to leave the mark later, run a shorter course, and arrive first at the finish line. This rule seems to me to result from a failure to evaluate the state and federal interests as of the time the state prosecution was commenced.
As of the time when its jurisdiction is invoked in a Steffel situation, a federal court is called upon to vindicate federal constitutional rights when no other remedy is available to the federal plaintiff. The Court has recognized that at this point in the proceedings no substantial state interests counsel the federal court to stay its hand. Thus, in Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, we noted that "considerations of equity practice and comity in our federal system...have little force in the absence of a pending state proceeding." Id., at 509. And in Steffel, a unanimous Court explained the balance of interests this way:
   "When no state criminal proceeding is pending at [p. 355] the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court's ability to enforce constitutional principles. In addition, while a pending state prosecution provides the federal plaintiff with a concrete opportunity to vindicate his constitutional rights, a refusal on the part of the federal courts to intervene when no state proceeding is pending may place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding." 415 U.S., at 462.
Consequently, we concluded that "[r]equiring the federal courts totally to step aside when no state criminal prosecution is pending against the federal plaintiff would turn federalism on its head." Id., at 472. In such circumstances, "the opportunity for adjudication of constitutional rights in a federal forum, as authorized by the Declaratory Judgment Act, becomes paramount." Ellis v. Dyson, 421 U.S. 426, 432. See also Huffman v. Pursue, Ltd., 420 U.S. 592, 602-603.
The duty of the federal courts to adjudicate and vindicate federal constitutional rights is, of course, shared with state courts, but there can be no doubt that the federal courts are "the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States." F. Frankfurter & J. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 65 (1927). The statute under which this action was brought, 42 U.S.C. §1983, established in our law "the role [p. 356] of the Federal Government as a guarantor of basic federal rights against state power." Mitchum v. Foster, 407 U.S. 225, 239. Indeed, "[t]he very purpose of §1983 was to interpose the federal courts between the States and the people." Id., at 242. See also Zwickler v. Koota, 389 U.S. 241, 245, 248; McNeese v. Board of Education, 373 U.S. 668; Monroe v. Pape, 365 U.S. 167. And this central interest of a federal court as guarantor of constitutional rights is fully implicated from the moment its jurisdiction is invoked. How, then, does the subsequent filing of a state criminal charge change the situation from one in which the federal court's dismissal of the action under Younger principles "would turn federalism on its head" to one in which failure to dismiss would "trivialize" those same principles?
A State has a vital interest in the enforcement of its criminal law, and this Court has said time and again that it will sanction little federal interference with that important state function. E.g., Kugler v. Helfant, 421 U.S. 117. But there is nothing in our decision in Steffel that requires a State to stay its hand during the pendency of the federal litigation. If, in the interest of efficiency, the State wishes to refrain from actively prosecuting the criminal charge pending the outcome of the federal declaratory judgment suit, it may, of course, do so. But no decision of this Court requires it to make that choice.
The Court today, however, goes much further than simply recognizing the right of the State to proceed with the orderly administration of its criminal law; it ousts the federal courts from their historic role as the "primary reliances" for vindicating constitutional freedoms. This is no less offensive to "Our Federalism" than the federal injunction restraining pending state criminal proceedings condemned in Younger v. Harris. The concept of federalism requires "sensitivity to the legitimate interests [p. 357] of both State and National Governments." 401 U.S., at 44 (emphasis added). Younger v. Harris and its companion cases reflect the principles that the federal judiciary must refrain from interfering with the legitimate functioning of state courts. But surely the converse is a principle no less valid.
The Court's new rule creates a reality which few state prosecutors can be expected to ignore. It is an open invitation to state officials to institute state proceedings in order to defeat federal jurisdiction. One need not impugn the motives of state officials to suppose that they would rather prosecute a criminal suit in state court than defend a civil case in a federal forum. Today's opinion virtually instructs state officials to answer federal complaints with state indictments. Today, the State must file a criminal charge to secure dismissal of the federal litigation; perhaps tomorrow an action "akin to a criminal proceeding" will serve the purpose, see Huffman v. Pursue, Ltd., supra; and the day may not be far off when any state civil action will do.
The doctrine of Younger v. Harris reflects an accommodation of competing interests. The rule announced today distorts that balance beyond recognition.

#### Notes

1 ↑ . There is the additional difficulty that the precise meaning of the rule the Court today adopts is a good deal less than apparent. What are "proceedings of substance on the merits"? Presumably, the proceedings must be both "on the merits" and "of substance." Does this mean, then, that months of discovery activity would be insufficient, if no question on the merits is presented to the court during that time? What proceedings "on the merits" are sufficient is also unclear. An application for a temporary restraining order or a preliminary injunction requires the court to make an assessment about the likelihood of success on the merits. Indeed, in this case, appellees filed an application for a temporary restraining order along with six supporting affidavits on November 29, 1973. Appellants responded on December 3, 1973, with six affidavits of their own as well as additional documents. On December 28, 1973, Judge Lydick denied the request for a temporary restraining order, in part because appellees "have failed totally to make that showing of...likelihood of prevailing on the merits needed to justify the issuance of a temporary restraining order." These proceedings, the Court says implicitly, were not sufficient to satisfy the test it announces. Why that should be, even in terms of the Court's holding, is a mystery.
2 ↑ . The District Court found that the filing of the state criminal complaint, six weeks after the State had appeared to oppose the appellees' application for a temporary restraining order but only a day after service of the complaint was effected, "would seem to supply added justification" for its finding of harassment. The court concluded "that the institution of the criminal proceedings was in retaliation for the attempt by plaintiffs to have their constitutional rights judicially determined in this court."