Warren E. Burger: First case on argument today is number 4, Younger against Harris? Mr. Harris, you may proceed whenever you're ready.
Albert W. Harris, Jr.: Thank you Mr. Chief Justice. Mr. Chief Justice and may it please the Court. This is an appeal from an order of the three-judge court in the Central District in California declaring the California Criminal Syndicalism Act unconstitutional on its face and then all of its parts. In enjoining the District Attorney of Los Angeles County from enforcing and continuing the prosecution of a man named John Harris, Jr. who was one of the plaintiffs in this case. The appeal is brought to District Attorney and represented here by the Attorney General of California. The complaint in the District Court was filed by John Harris, Jr. following his indictment upon two counts of violating subsection 3 of the Syndicalism Act. He claimed in the complaint by reason of his prosecution and the presence of the Act. He was inhibited in the exercise of his First Amendment rights. There were three other plaintiffs who joined in the lawsuit, Jim Dan and Hirsch both alleged that they were members of the Progressive Labor Party, a party that advocated political and industrial change and they felt inhibited in attempting through peaceful and non-violent means to advocate Progressive Labor Party programs in light of the presence of the statute in the prosecution of John Harris. The fourth plaintiff was a man named Broslawsky who alleged that he was a teacher of history and he taught subjects in which Marxism wasn't involved and he was uncertain what he could say about these matters by reason of the presence of the Act on the books and by reason to prosecution of John Harris.
Potter Stewart: Where did he teach these subjects?
Albert W. Harris, Jr.: At a state college -- San Fernando State College, I believe.
Potter Stewart: Was it a regular part of the curriculum of the course he taught? Well, it's all contained in about one paragraph in the complaint and that's all we know about it.
Potter Stewart: That's all you know. Thank you.
Albert W. Harris, Jr.: The plaintiffs alleged that there was irreparable injury. He alleged no specific facts in support of this claim except the conclusion that they felt inhibited and were prevented from exercising fundamental constitutional rights. The District Court held that it had jurisdiction to pass on all phases of the Act not only the Section under which John Harris was prosecuted. It held that it should not abstain in light of Dombrowski and Zwickler against Koota. The District Court went on to hold the Act unconstitutional on its face and all of its provisions were no mention whatever of any California case which it -- that it construed any of the sections of the Act. Finally, the Court issued an injunction against the pending prosecution of John Harris. The appellant submits here that the District Court had no jurisdiction whatever in respect to the claims of Dan, Hirsch, and Broslawsky that is the three plaintiffs who have not been indicted.
Byron R. White: I think perhaps it was made against Broslawsky?
Albert W. Harris, Jr.: There is no such allegation Your Honor in the complaint and in fact the District Court said in the opinion that it did not believe that the plaintiffs stood in any danger or whatever of prosecution for the conduct that they alleged, that they had engaged in. In addition, in connection with the jurisdictional question we contend that the court had no jurisdiction to pass on a ninth provision except Section 3. The Section under which John Harris was charged and upon which he was awaiting trial. Secondly, as to Section 3, the District Court should have abstained. Third, on the merits we submit that the Act is valid in light of a narrowing state constructions and a number of state cases that we cited in our brief. Finally, all of the things fail and we submit that an injunction was barred under Section 2283 of Title 28 and that there was no irreparable injury in support of the injunctive relief. First point in connection with the lack of jurisdiction in respect of the three plaintiffs other than John Harris is basically on the proposition that there were no overt acts by the State of California or any representative of the state that might be construed in any way to have inhibited these plaintiffs in the exercise of federal constitutional rights. There had been no arrest. There had been no threat of arrest, no searches, no denunciation of these plaintiffs. The only claim that they can make is that the mere presence of the Act is sufficient to create a case or controversy. We submit that it is not and we submit that under the circumstances here the action of the District Court amounted to an advisory opinion on an abstract question. The facts are set forth in the complaint in connection with these three plaintiffs who were not charged do not show any substantial controversy between parties having adverse legal interest of sufficient immediacy and reality to warrant declaratory relief and to give right to a case or controversy. We relied principally in that connection upon your decision last term in Golden against Zwickler or he dismissed the case because of no case or controversy even though having included that the statute was arguably overbroad and affecting rights on the First Amendment.
Speaker: Did an injunction actually issue against the state prosecutor passed?
Albert W. Harris, Jr.: Yes it did, Your Honor.
Speaker: That could have exists in all the way through?
Albert W. Harris, Jr.: For four years or thereabouts, Your Honor. In connection with Harris himself, we wouldn't argue that there is only an abstract question -- he's under indictment and if the trial has ever held could possibly be convicted, but he's only charged under Section 3 of the Act. We submit that the District Court had no jurisdiction to reach to other sections of the Act. There are five sections in Section 11401 that deal with different forms of conduct and declare them illegal under the general definition of Criminal Syndicalism contained in Section 11400. The legislature provided in connection with this Act that if any portion of it for example Section 3 which relates to the distributing of handbills and alike, printing matters and things of that kind. That if any part should be held unconstitutional, the rest remaining portions should be sustained. We have argued in our brief that in the Smith Act cases and the Smith Act had a structure very similar to this with membership provision, with a printing or distributing section, in those cases. This Court took each section and examined that section and declined to pass on other sections only the section that was specifically involved and had been invoked against the particular defendants there are Dennis, and the Yates case and in the Scales case. We think that one of the problems in this case is that the District Court in passing upon sections of the Act that have not been invoked or sections of the Act as to which there was no actual controversy. For example, Section 4 is a membership clause provision. It prohibits organizing. It prohibits knowingly becoming a member of a criminal syndicalist organization as defined therein. This was struck down by the District Court. Harris was not prosecuted under this Section. There was no contention by the District Attorney nor has there been any contention by anyone in California that the group to which Harris belongs, the Progressive Labor Party I believe, is a proscribe organization or that belonging to it there constitutes any crime. In short, there was no actual controversy on that question. And we think one of the problems without -- when you don't have an actual controversy and this case may illustrate that is it there is not an informed judgment passed by the District Court -- the pertinent cases and we cited some of the cases. Apparently, we're never considered by the Court and we think this was due probably because of the District Attorney was not interested in the membership clause. He was not prosecuting. Harris had not been charged under the membership clause and he was interested only in an abstract way in the validity of that Section. We submit that the decision here is concrete proof of what happens when a court goes ahead and in effect issues an advisory opinion. There isn't enough interest in the case apparently to give the informed judgment that constitutional adjudication that we submit calls for. Now, in connection with Section 3, with the only Section we feel was properly before the District Court. We think the District Court should have abstained with three reasons why we believe this to be true.
William J. Brennan, Jr.: May I ask you Mr. Harris? Is that Section ever been the subject of reconstruction?
Albert W. Harris, Jr.: Section 3, yes Justice Brennan.
William J. Brennan, Jr.: Talk about it as you'll get to it.
Albert W. Harris, Jr.: Yes, I will.
William J. Brennan, Jr.: Yes.
Albert W. Harris, Jr.: Yes it has -- it has been construe. We think the Court should've abstained for three reasons even though we don't argue jurisdiction as to subsection 3 in connection with John Harris. In the first place, this law was acceptable of a narrowing interpretation that would by resolving vagueness in the terms of the statute show any problem of overbreadth. And thus, we submit there was a reasonable expectation that there would no necessity to adjudicate the constitutional limits of the states legislation in this field.
William J. Brennan, Jr.: But what was the indictment charged him with printing or publishing or whatever?
Albert W. Harris, Jr.: Circulating actually, two handbills in the course of a corner's inquest in Los Angeles.
William J. Brennan, Jr.: But what was the purport of the handbills?
Albert W. Harris, Jr.: The handbills are set forth in an appendix filed by the petitioner -- the appellees here and in essence it was directed to -- well, we have to give a little bit of background. This event occurred in May of 1966, the inquest. This was some six months -- eight months after the Watts riots in Los Angeles County. The inquest concerns the death of a man named Leonard Deadwyler who had been shot by a police officer, stopping him believing he was driving on the influence of intoxicating liquors. And accidentally, a gun was discharged and the -- Mr. Deadwyler was dead. The officer was named Bova. The first of the handbills that are set forth and attached to the indictment refers to Bova the cop. It says, “Wanted for the murder of Leonard Deadwyler”. The statement is made “they” referring to the police department must all be wipeout before there is complete freedom. South Los Angeles Watts is one big concentration camp and so forth, that goes on for two or three pages. This is in the appendix to the appellee's supplemental brief on reargument.
Potter Stewart: What is this appendix to the brief for the appellant filed here on February 27, 1969?
Albert W. Harris, Jr.: Those are illustrative matter.
Potter Stewart: “Wanted Dead for Murder” This is the San Francisco Pig Michael O'Brien?
Albert W. Harris, Jr.: Yes, Your Honor, that's from the Black Panther Paper in San Francisco. That has nothing to do with this -- with the facts of this particular case. Those are illustrative of the conditions that we submitted at that time warranted to the upholding of this Act. In connection with the question of abstention, we say the state law can be saved and if it can be saved is will avoid a constitutional decision by the federal courts be at the District Court or this Court. And that's one of the purposes of the doctrine. There is a pending vehicle in the indictment of John Harris and if he's ever tried the trial and his appeal. Finally, there's no evidence whatever and nor is that even claimed that there has been bad-faith enforcements of the statute for the purpose of denying the people of California their federal constitutional rights. There is a contention that many years ago, this may have occurred but there is no contention that at or about that time this case was filed and decided in Los Angeles. There was any bad faith enforcement of the Act. We say that this Act is susceptible to a clarifying and a narrowing construction for a number of reasons. First of all there been a number of cases in California that have passed on various provisions of the Act since it was enacted in 1919. The great flurry of prosecutions arose that between 1919 and 1924 and there has been very little only in this case having reached any kind of appellate statute since --
William J. Brennan, Jr.: Excuse me for interrupting you again Mr. Harris. You referred me to something which is said was in the appendix to a supplemental brief in your argument?
Albert W. Harris, Jr.: Yes.
William J. Brennan, Jr.: I got a supplemental brief in reargument referring that to the --
Albert W. Harris, Jr.: It's a blue cover Mr. Brennan and it's an appendix to that supplemental brief.
William J. Brennan, Jr.: I guess I don't have it. Thank you Mr. Albert.
Albert W. Harris, Jr.: It's filed by the appellees not by the appellant. The decision over 20 years ago in the Danskin case by Justice Traynor made a very clear that in the view of California Supreme Court -- the California Criminal Syndicalism Act couldn't be evaluated simply on its face and in its own terms. But it had to be evaluated in light of decisions by this Court in the area for the First Amendment. In fact, Justice Traynor said that the Act could only be applied to prohibit conduct where there was imminent danger but advocacy will give rise to the evils that the state may properly prevent. That is language that is very reminiscent and it's very close to the language by this Court in the Brandenburg case last term when you struck down the Ohio Criminal Syndicalism Law on the ground that it was not limited to speech or advocacy directed to inciting violent action, and it contained no conditions that such action be likely under the circumstances. We submit that a fair reading of Danskin gives a very close parallel with your decision in Brandenburg and you can reasonably anticipate that the California Supreme Court if it sustains the law at all would sustain it under that kind of a clarifying and narrowing construction. Now, in connection with Section 3 itself, the so-called circulating or distributing search in the O'Malley case which the People against O'Malley which is cited in our briefs. The state court many years ago in anticipation of many of the doctrines that have developed held that to prosecute and convict a person under this Section it had to be proven that he understood the doctrines in the material and the handbills that he was handing out. That he wasn't just out there handing out something because somebody told him to. He had to understand it and he had to intend to bring about the consequences that is the unlawful acts, the unlawful means, terroristic means that are proscribed under the statute. He had to have to intent himself to do that and in addition there had to be a clear and present danger of such unlawful acts necessary. This is very close we submit to what the decisions of this Court have held in the intervening years in the Dennis case and many other cases. Look into New York to anticipate state court action in the Epton case. They said the criminal anarchy statute there was given a narrow construction. Look into the decisions of this Court in this field the Smith Act cases. All that gave a clarifying and narrowing construction to those sections the Dennis, Yates, and Scales decisions and they each -- each of those cases finds its parallel in one of the provisions in the Criminal Syndicalism Act. This is my case such as Baggett -- the Baggett case, Zwickler case, Zwickler against Koota. What the court felt that there was no chance of the statute could be saved but in effect an expression but it could not be saved by narrowing construction. In fact we think this is a classic example of the other extreme. A case that can and I would, in speaking of the probabilities which I suppose were concerned with it in this issue. The odds are certainly very heavy that this statute can be saved and that it would be saved by the California courts if ever presented to them. Now, there is a case at the moment and that is the prosecution of John Harris. If he is found guilty and since he has absolute right to appeal his conviction and have the validity of the conviction --
William J. Brennan, Jr.: Mr. Harris, I don't seem to have that indictment here. Tell me what -- I don't have that appendix whatever it was.
Albert W. Harris, Jr.: Yes, sir.
William J. Brennan, Jr.: I don't seem to have it either. What's the form you have -- what's the form of the indictment in relation to the statute?
Albert W. Harris, Jr.: Well, the indictment is a typical indictment in California. California indictments are in the language of the statute --
William J. Brennan, Jr.: The language of the statute?
Albert W. Harris, Jr.: Pardon me?
William J. Brennan, Jr.: In the language of the statute.
Albert W. Harris, Jr.: In the language of the statute.
William J. Brennan, Jr.: Is that to say that -- then subsection 3 is reprinted in the indictment as --
Albert W. Harris, Jr.: Well, it's not reprinted but it is charged with having as accuse of having violated this particular Section 114013 of the Penal Code. Then, it goes on to say that on or about the certain date he did willfully, unlawfully and feloniously issue circulate and so forth certain papers and forms that contained written and printed advocacy of in effect Criminal Syndicalism. Advocating terrorism and advising the Commission of Crime etcetera. It's really lengthy because the statute itself is rather lengthy. And in addition attached to the indictment is the specific handbill he handed out on each occasion.
William J. Brennan, Jr.: Incidentally, the Court has now found this matter.
Albert W. Harris, Jr.: Good.
William J. Brennan, Jr.: Thank you. What page is the indictment?
Albert W. Harris, Jr.: The indictment starts at page 3 of this appendix and it runs for quite a number of pages because there were two different days, two different handbills and two different counts in this indictment. It should -- the indictment should be read in light of the California procedure wherein the defendant has made available to him the grand jury transcript automatically without any question asked so that to charge him simply in the language of the statute doesn't prejudice him. He confined exactly what the evidence was and pinpoint the charge.
William J. Brennan, Jr.: At what stage is his first opportunity to get this limited as you have suggested, you thought the California courts would limit it.
Albert W. Harris, Jr.: Yes.
William J. Brennan, Jr.: That is the clear and present danger and so forth?
Albert W. Harris, Jr.: We submit Your Honor that under the Standard California Procedure, the first opportunity in the trial court would be when instructions are given to the jury. Now, the question might arise in connection with evidence as it's offered but by at large, I would think it would be -- the elements would be set forth in the instructions to the jury. The conditions, the things that jury has to find in order to convict this man. Now, it's been contended here that the Harris moved under 995 of the Penal Code to dismiss the indictment, that motion was denied. He demurred to the indictment on the ground that the statute upon which the indictment was founded was void on its face. The demur was denied. The motion under 995 was denied. Now, those are simply trial court rulings. The Harris then applied to a District Court of Appeals under Section 999 (a) of the Penal Code. Now, this is special California procedure. Under 995, you can attack an indictment on the grounds either that the indictment was unlawfully returned something some error occurred in the process or in the ground is not probable cause to hold the defendant to answer. And this turns on the evidence before the grand jury, it's an evidentiary issue. Now, if this is denied, California has a special statutory procedure 999 (a) and I don't know of anything similar in federal practice and it's a very good provision whereby you can go to the appellate Court, the intermediate appellate court and asked for a writ of prohibition under the Section on the ground that you're being held without probable cause and you shouldn't put all the trouble of the trial. 999 (a) however, is limited to this issue whether or not the defendant is being held without probable cause.
William J. Brennan, Jr.: Do you say that's tested by reference to the grand jury minutes?
Albert W. Harris, Jr.: Yes, that's correct Your Honor. That is the only issue that may properly be raised under the special statutory writ. Now, the question of whether the statute is itself valid on its face and similar question can't be raised at that point. This is simply to determine should the man be held --
William J. Brennan, Jr.: Yes, but suppose there was nothing whatever in the grand jury testimony would satisfy the ingredient of clear and present danger and so forth, then what would happen?
Albert W. Harris, Jr.: Well, I think we don't have any present as to precisely what would happen under those circumstances Your Honor, but I think clear and present danger is one of those elements that would be tested at the trial as oppose to the grand jury indictment. The grand jury indictment is just put the man to trial not to convict him and there is an evidence in this transcript which would indicate the clear and present danger. But, I don't think that under our procedure it's called for that particular time. Now, it's been argued that the application for 999 (a) relief which was denied and then a petition for hearing to the California Supreme Court was denied. It's been claimed by the appellees that this in effect gave the state court a chance to limit the statute in its application and they didn't take that chance. We don't think that is a sound argument for the reasons I've mentioned. 999 (a) does not embrace that question of this kind. It embraces only the question evidentiary question. Secondly, there are considerations in any pretrial motion of this kind in addition to the legal question that is presented. There is a question of whether you should disrupt the criminal trial or whether you should not whether you should let him proceed. The application of the State Supreme Court is like the application to this Court for certiorari so probably discretionary. And we don't think this issue has been properly presented to the California courts. We're confident that when it is, the statute will be limited and brought within constitutional limitations. The place in California procedure where this should really be accomplished is in the jury instructions and then if those are not adequate in the event that Harris is convicted of course. Possibility is he may not be. If he is convicted there can be a review on a full record of the instructions as applied under the evidence in light of the statute and all of their controlling cases -- not a simple question, a complex question. We think that that is the time for review and think it will not prejudice John Harris to wait that time for review of the interest which he is concerned. And that is whether he's going to be held guilty of violating subsection 3. Certainly, the trial court in passing on a demur that was -- it was no authority of interpretation by the state courts of this Section of the Criminal Syndicalism Act. Now, there are procedures available in California that perhaps could secure a ruling pretrial on this question. They were not invoked here, habeas corpus might lie. A rare prohibition in the sense of the normal extraordinary writ not the special statutory 999 (a) might possibly lie in this situation. These things were not done. These were the cases that are referred to in the briefs filed by the appellees as showing this opportunity given to the state courts. I'd like to save any time that I have Mr. Chief Justice.
Warren E. Burger: Very well, Mr. Harris. Mr. Wirin.
A. L. Wirin: Mr. Chief Justice, may it please the Court. The ultimate question as we view it is whether or not the California Criminal Syndicalism Act is unconstitutional in violating the First Amendment and whether the District Court in so ruling was correct. But long before that ultimate question is reached there is concededly a serious threshold question and we the appellees or particularly appellee Harris has to succeed in crossing that threshold in order to prevail. The threshold question is whether or not where there is a special procedure in a state for the raising of federal as well as state constitutional questions prior to trial as there is in State of California and as frankly and candidly fairly stated by Mr. Harris. Where there is a special procedure for raising both the constitutionality of statute on its face and as applied and the sufficiency of the evidence adduce before the grand jury in connection with such statute and where a defendant charged with an offense has exhausted every available -- first, where there's a procedure available to him and where he has taken every step under that procedure and having failed in these steps to secure a narrowing of the statute or a dismissal of the cases filing the First Amendment whether or not if and in the case involving only the expression of opinion, only speech -- pure speech unaccompanied by plus or conduct or acts or anything other than the expression of opinion. And question is therefore, when a defendant in that circumstance under that kind of a procedure in a state court after having failed to secure narrowing of the statute in the state courts. By a procedure available to him to secure such a narrowing whether he can it be then and only then repairs to United States District Court. Whether the United States District Court then if it fails refuses to abstain then abuses its discretion in such failure to abstain.
William J. Brennan, Jr.: Mr. Wirin.
A. L. Wirin: Yes, sir?
William J. Brennan, Jr.: Is there anywhere in the appendices a record of what you did in proceeding what is called the 998 (a) proceeding or something?
A. L. Wirin: Your Honor, the record is in two parts -- two respects between --
William J. Brennan, Jr.: Do we have it here?
A. L. Wirin: Well, I see what you mean you are. In the first place, it is set forth in the complaint filed in the District Court. And the record at page 2 and particularly in paragraph 8 on page 6. The prior to the filing of a proceeding in the federal court, the plaintiff Harris appellee here had filed proceedings in all of the state courts of California and the Section 995 and 999 (a) to which I shall refer to the moment. That's paragraph 8, page 6. Now, in addition to that Your Honor, I do want to once I emphasize -- I suppose when it shouldn't. I emphasize two matters with respect to the record. One is we submitted to the District Court in its request the leaflets which are the subject matter of the indictment. We have set forth these leaflets now in the appendix to our supplemental brief as we have set forth the entire transcript of the proceeding and before the grand jury namely all of the evidence against this defendant before the grand jury. Now, in addition to that Your Honor because few of the factors is one of a number of cases which are going to be argued before Your Honors on the issue of abstention. We thought this Court ought to available to it, all of the proceedings in the California courts, the proceeding before the Superior Court -- trial court, the proceeding before the Court of Appeals and in the Supreme Court of California, so that Your Honors will see that we raised the federal constitutional questions as well as state constitutional questions but because my client is not well-heeled and was permitted to proceed in forma pauperis. We didn't have the funds, we didn't print the entire record of the proceedings in the California Court, but there are lodged with the clerk of this Court for Your Honors' examination and should you be so advice. However, we have quote from that record which is in the possession of a clerk, portions which we think a highly relevant and we printed them in spite of lack of funds in this appendix with you Your Honor. Now, as stated by the Attorney General plus before stated by the Attorney General in his brief the Attorney General says that the defendant has been charged with acts in violation of the California Criminal Syndicalism law. When they called it what one wants but the act with which he is charged consists solely of the distribution of two handbills on two separate days. Therefore, he's charged with two violations under the California Criminal Syndicalism law. A violation of the California Criminal Syndicalism law considered was considered by the California legislature very serious when this statute was adopted 50 years ago so that he faces a penitentiary sentence of 28 years, 14 years for each pamphlet distribution. The pamphlets only it was being distributed on two -- one day after another. Moreover, there could be no question of what these leaflets considerably highly critical of the Los Angeles police were distributed at a proper place at a proper time, on a proper occasion, a Negro had been shot and killed by white officer. He grows in Los Angeles for a concern about the matter, an inquest was being held as to the cause of the death and these leaflets conceivably couched in very strong language were distributed outside of the inquest hearing on the steps of the building where the inquest was held. Now, I must hasten to have one thing, Your Honors or to try to clear up the matter about which there could be some misunderstanding. The leaflets which this defendant distributed as Mr. Harris stated to you Your Honors, are not the horrendously leaflets issued by the American Nazi Party which are attached to the appellant's opening brief which have nothing to do with the defendant which three leaflets pertained to statements made by organizations with which the defendant has no relationship. Leaflets which were never introduced before the grand jury, leaflets which couldn't have been introduced before the grand jury because they are dated two years after the indictment. They are offered to Your Honors as evidence that I understand or I assume that California is in great peril from organizations that want to destroy it and therefore this indictment. Therefore, these leaflets two years thereafter are relevant to the indictment of the defendant two years before.
Potter Stewart: The leaflets are distributed by your client are supposedly here somewhere, I don't -- maybe unable to find them.
A. L. Wirin: Oh! Well, I can help. That I --
Potter Stewart: I have found the ones you. I found the ones you've told us to disregard but I haven't found the other.[Laughter]
A. L. Wirin: As a matter of fact. I was going to say I don't mind that you're reading them because we make an argument about those leaflets that the Attorney General of California are zealous prosecutor sees dangers to California which no one else sees by virtue of these leaflets. But I haven't answered Your Honor's question. The answer is that it is a blue document and on page 3 --
Potter Stewart: Is the appendix to appellee's supplemental brief on reargument?
A. L. Wirin: Exactly and on page 3, -- pages 3, 4, 5, 6 contained the complete text of the indictment against them and the complete text of the leaflets. Now, you will notice upon reading the indictment, there is no reference to any conduct or any act other than the distribution of these leaflets. Now, I have set Your Honor is that I'm trying to emphasize because as I read this Court's decision. The distribution of leaflets unaccompanied by acts constitute freedom of the press exercised by the poor man and I don't want to get into the argument whether the exercise or freedom of the press has a high up priority than other rights in the Constitution but in any event it is the right to which of course this Court has recognized again and again where the expression of opinion, where there is no playing by the prosecution that the expression of opinion is accompanied by any overt act (Voice Overlap).
William J. Brennan, Jr.: But Mr. Wirin, I'd like to get this clear. I gather your basic position is that it was appropriate for the federal District Court to intervene as it did.
A. L. Wirin: Alright.
William J. Brennan, Jr.: Because if I understand your argument, you had in fact exhausted, the special procedure and California provides unsuccessfully to get a determination that the statute was unconstitutional or to get a narrowing construction.
A. L. Wirin: That is precisely our -- my argument which I hope to reach now in just about a minute or half a minute some --
William J. Brennan, Jr.: Don't overlook it.
A. L. Wirin: I better not. But let me just quickly emphasize at this point that the Criminal Syndicalism Act upon which the Court passed and which may be found, the text at which may be found in the record which is a green paper at pages 8 and 9. It's the record on appeal.
Warren E. Burger: When you speak of record do you mean the one labeled appendix?
A. L. Wirin: Yes. That's what I mean Your Honor, thank you for helping me out. If Your Honors will look for a moment, well my moments to me are precious. At the text of the Criminal Syndicalism Act, you will find on page 8 that it is an act which proscribes doctrine and preset so it is an act aimed at the expression of opinion. And as Mr. Harris -- at least Mr. Harris, the assistant attorney general that defendant Harris was charged with subsection 3. If Your Honor will take a third of a minute to look at that, it's on page 9 you will find that that makes it a crime to print, publish, edit, issue, circulate and invite and teach and so forth. So that so far as any charge against this defendant is concerned or so far as any charge it's possible on the state, purely a charged involving the expression of opinion. Now, I better get to the heart of our problem, the problem of abstention.
Byron R. White: Yes, I suppose you're right because whether or not that's constitutional. The real issue here is whether you want that -- like that out the state courts and not the federal court at this junction.
A. L. Wirin: Yes. Now, our position is that this is not a case under some of the abstention decisions by this Court where a person rushed in federal court is not a case where he sought for leaving the federal court prior to exhausting available remedies to him to secure the same kind of relief which he ultimately secured from federal court from the state courts. And that leads to me a discussion then of -- but I would agree with Justice Brennan's heart of this case as to the special procedure and nature of special procedure in California to do that because if California has a special procedure whether or not other states have it where is at this moment of no concern to me. Though I suppose of course it is a concern to Your Honors but I think in other case, in the other abstention cases following this one rather than this one where it is conceded by Mr. Harris there is a procedure in California. Now, of course we don't agree entirely as to the scope of that procedure. We have reached the matter and by way of counsel's summary this is the thrust of our brief and this is the nature of our position. We challenge the constitutionality of the statute on its face and as applied in the trial court to start with as Mr. Harris conceded under California procedure in contra jurisdiction to procedure in the federal courts. A transcript of the proceedings before the grand jury is filed with the clerk of the court and a copy is furnished to the defendant. And he may challenge the sufficiency of the evidence as well as the constitutionality of any prosecution -- constitutionality of a statute upon which a prosecution is based in a proceeding which is known as proceeding under Penal Code Section 995.
William J. Brennan, Jr.: What's the number of that section?
A. L. Wirin: Section 995. It is referred to in the complaint. It is discussed more or less extendedly particularly Your Honor in our reply brief which is a manila covered document at pages 6, 7 and 8. Mr. Harris said to you Your Honors that before a trial in California, I think he said, may they challenged the constitutionality of the statute by habeas corpus or by prohibition -- by a petition by the prohibition. A petition for prohibition was filed by this defendant.
William J. Brennan, Jr.: And what court does that go Mr. Wirin?
A. L. Wirin: That goes into the first immediate Appellate Court called the Court of Appeals.
William J. Brennan, Jr.: That's your intermediate appellate court. It's not that special appellate court you have in California?
A. L. Wirin: No, no. That's not the appellate that happens to Superior Court because that is only is a file in the Superior Court then it goes to an intermediate appellate court known as Court of Appeals. From an adverse ruling by the Court of Appeals, one goes to the California Supreme Court by a doctrine known as a petition for hearing. In which petition for hearing all of the papers which are filed in the Court of Appeals go up to the Supreme Court and in this case as Your Honors will see if you will examine the one copy of the proceedings in the California courts on file at the clerk's office, all of the proceedings in the trial court are annexed to the proceeding in the Court of Appeals including the transcript of the record before the grand jury.
Speaker: Are you going to deal at some point with the impact of 995 on 2283?
A. L. Wirin: Yes. Yes, I am. Three or four minutes I think. Now, it is our view and we discussed it Your Honor particularly at these pages which are referred in our reply brief pages 6, 7 and 8 that under California procedure. The California statute itself and the California courts have ruled that relief must be accorded to a defendant where the evidence is insufficient as to any essential element of the offense. This case, the essential element of the offense as Your Honors decided unanimously just his last term in Brandenburg versus Ohio is that the advocacy must be accompanied by incitement to imminent lawless action urged upon all of the California courts was that there was no evidence before the grand jury as there is no charged in the indictment of any incitement to -- that the incitement as distinguished from advocacy of abstract doctrine. And incidentally, Mr. Justice Harlan, I know you'll be interested to know that the District Court was greatly persuaded by Your Honor's ruling in Yates and in Mogul. Although, maybe this record I just made is irrelevant to my -- to the point I'm making but the distinction between abstract advocacy on the one hand and incitement imminent lawless action on the other which distinction is not drawn by the statute and hence it is overbroad and vague under decisions of this Court. That distinction was never made, that distinction was never recognized by any in California court in claims made by this defendant to that court, and therefore, two more things then I'm through with my time. Therefore we do not agree with our adversaries that the California Criminal Syndicalism Act an act aimed at preset at the preachment of preset and doctrine as I've indicated have ever been narrow by the California courts to comply with the limitations that this Court has imposed in Yates, Mogul and in another cases and particularly in Brandenburg.
Speaker: Are we called in this case to review the proceeding to spend so much time on this? The question is whether the federal court entered in business for arguing into the state prosecution at the stage based on 2283 and in the face of a situation charged now with harassment in this man by becoming that as the narrow issue.
A. L. Wirin: Alright, let me address myself to that issue.
Speaker: Well, that's the whole issue?
A. L. Wirin: Well, I would agree it's the whole issue. But Mr. Justice Harlan, it is my position that a District Court -- or I want to put this when I say this firmly but of course very respectfully does not barge into a state prosecution when there is a state procedure which authorizes and provides for relief prior to trial which state procedure has been exhausted by a defendant in every California court. And in our view, it is no disrespect to a state court, it is no frustration of the authority of a state court if in that circumstance when a state court has been given every opportunity to narrow a statute and has not been so for a defendant to then repair to the federal courts particularly when it couldn't come to this Court because that situation is not a final judgment reviewable. And I must also confess Your Honor that I do draw a distinction between a free speech case and another case.
Potter Stewart: But Mr. Wirin, you're not suggesting are you that having exhausted this rather unusual California pretrial procedure. He was that under state law he could not continue to assert his constitutional defense at the criminal prosecution, you're not suggesting any (Voice Overlap)?
A. L. Wirin: I'm not suggesting that at all. I'm merely suggesting --
Potter Stewart: So that now, he would be in the same position as would be a defendant in any other state that did not have any such pretrial procedure as California has, but to me be just be a simply a defendant and having been charge with the offense and they were be available to him and the state courts all of his constitutional defenses, is that correct?
A. L. Wirin: I agree entirely with that Your Honor has said with of course a qualification and my qualification is, that so far as a doctrine of abstention is concerned a doctrine which is positive on the constitutional principle that the federal court should not frustrate the actions of state court except where appropriate that if there is a special procedure in the state court and it is followed by a defendant that it's timely for him to repair to the District Court and secure redress in the District Court with respect to matters which are -- with respect to which he has not secure of redress in these proceedings --
Thurgood Marshall: Then you're right up against 2283 or what?
A. L. Wirin: Now, I will come to 2283 and there are two things to be said about 2283 in connection with this case. First, 2283 was never raised by the District Attorney in the trial court. I don't know how important that is. It may be after I explain in the moment. In the notice of appeal to this Court 2283 was not mentioned. In the jurisdictional statement to this Court 2283 was not relied upon. Although, shortly thereafter the attorney general filed a memorandum in support to jurisdictional statement raising for the first time Section 2283. Of course, if Section 2283 is a jurisdictional statute and I don't understand that's the position of Mr. Harris, it can be raised here whether or not raised below. But I make some point of a fact that it wasn't raised below for this reason. The District Court essentially made a declaration that the statute was unconstitutional on its face. Then, if I may say so, to help the District Attorney it went on and issued a preliminary injunction sua sponte not on request of the plaintiffs because all was pending before the District Court was a motion to dismiss by the appellant. It issued the preliminary injunction in new order to give the District Attorney an opportunity to appeal to this Court and secure a review. And had Section 2283 didn't raise in the court below very possible, the court below might have decided not to issue any injunction for if declaration for statute was unconstitutional it would probably be insufficient. Now, that's part of the argument but not the main part. Now Section 2283 contains three subdivisions each of which in our view was complied with in this case. One of the subdivisions of Section 2283, one of the exceptions of Section 2283 is where an order of a District Court is an aid of its jurisdiction or in aid of its judgment. At the time this matter was heard by three-judge District Court, no response of pleading had been filed by the appellant. All it was before the court was a motion to dismiss which motion to dismiss, the District Court rejected. It had jurisdiction over the cause so Mr. Harris concedes and therefore to preserve its jurisdiction and its authority. Ultimately, later to enter to a judgment a declaratory judgment under Zwickler versus Koota which doesn't involve the injunction of statute at all and which was the -- the only matter which the District Court really decided in Zwickler versus Koota, Your Honors with unanimous although that it is special and interesting, and exciting concurring opinion by Justice Harlan. So, what the Court did therefore was to issue an injunction to sustain its jurisdiction in order to be able to effectuate its ultimate judgment which ultimate judgment could have been and might have been only a declaratory judgment which is as we say under Zwickler versus Koota, it could have done. And finally of course, Your Honors we make the argument though it's – thought this Court has never yet decided the matter that the Civil Rights Act under which this suit was filed in the District Court which authorizes the District Court to grant relief by way of damages and injunction, is one of the exceptions to the injunction statute and that the District Court below therefore was merely complying with the authority which the Congress had conferred upon it in the Civil Rights Act in issuing the injunction in this case. Again and this also dealt an injunction not necessary in this case, not issue at the request of the plaintiffs but is there to help the District Attorney and to help Mr. Harris. Now, --
Thurgood Marshall: And as a result of that this aid has been help to the extent that for four years they have been able to move, is that right?
A. L. Wirin: Well, Your Honor it turns out that fours years is when it get too long maybe that isn't important. Also part of the time Your Honor is attributable to this Court because you heard this case before and --
Thurgood Marshall: The thing we have before us is the injunction and whether or not the appellants asked for it or anything to me is rather unimportant. He did issue the injunction and it has to be because it's against 2283.
A. L. Wirin: And we say that there are three exceptions in 2283 and that in this instance and these are either in the injunctive, these exceptions anyone with it and that in this case --
Thurgood Marshall: Well, I don't see what jurisdiction he was protecting. He could issue a declaratory judgment. He didn't need to issue an injunction to protect his right to issue a declaratory injunction.
A. L. Wirin: Well, I think he wants as he -- it was a three-judge court, that's right. In any event, to maintain the status quo more than not to have its jurisdiction moot, we think it was proper to issue some kind of injunctive relief for that purpose.
Thurgood Marshall: Well, isn't it answered very simply by the fact that he hasn't issued a declaratory judgment that he get?
A. L. Wirin: Well, what the District Court did in effect was to issue a declaratory judgment but not a final declaratory judgment because he's not right.
Thurgood Marshall: Well, as he made it -- he hadn't made it final yet. What's stopping him from making it final?
A. L. Wirin: An appeal to this Court.
Thurgood Marshall: He just get started that that was enough?
A. L. Wirin: And appeal to this Court.
Thurgood Marshall: Well, so if we offset the injunction then he can go ahead and file a declaratory judgment?
A. L. Wirin: The District Court could.
Thurgood Marshall: Then how are you damaged?
A. L. Wirin: Not very much except we think that the three-judge District Court had the impressions of anticipating the ruling of this Court in Brandenburg. We would like to see a judgment reversed.
Warren E. Burger: Thank you Mr. Wirin. Mr. Harris, you have four more minutes.
Albert W. Harris, Jr.: Four minutes Your Honor. I didn't get to the last two points in opening remarks was the time of problem. I didn't mean to waive any point in connection with either the merits of the Act or the impact of Section 2283 which we set forth a very considerable length in our brief. We think it barred the injunction here in looking at the complaint which is -- appears in the appendix and on at page 7 it is quite apparent to me that a permanent injunction was prayed for a temporary restraining order and a preliminary injunction in fact were all prayed for by the plaintiff John Harris and by the other plaintiffs here. We are -- we still urge and I think if you examine the cases that have been cited by the appellees that the 999 (a) procedure does not permit the raising of the constitutional question that they presented here. The argued it but they didn't do it within a procedural framework. They would permit the state courts to decide it. We also submit that however, whatever our view might be or whatever the District Court's understanding might be of the procedural niceties in California shouldn't be determinative of this case. The 2283 still bars an injunction without any regard to what interlocutory procedures are provided for in California. And as far as the declaratory judgment is concerned, we urged that the statute can properly be save and under what is clear this is a consideration that should've prompt the District Court to abstain and let the statute be thrash out in the state courts and let John Harris have his remedy and I think there can be no real doubt that he has a real and meaningful remedy within the California courts. Only a week ago, Monday, this Court in O'Leary against Schneider number 1225 affirm per curiam a case out of Louisiana where the federal District Court have abstained from getting into a Louisiana prosecution. And there, there had been an application to the Louisiana courts, in fact, an application of the Louisiana Supreme Court for relief by the defendant during the course of his application to the federal court. This was not deemed to be of any great consequence under their particular situation and we think it is somewhat comparable with the situation here. Now, what the procedural niceties are in Louisiana, I have no idea. And we don't think that that this case should turn on that. 2283 clearly barred the injunction, the statute can be salvaged and so far as Harris is concerned and certainly no more than the one prosecution that he is facing. There is no -- I think the delay here is mentioned in a question has been very considerable. Now, the case proceeded in the state courts and no doubt it would have been terminated long sentence and we stand here four years with the State of California in the situation of been unable to proceed against John Harris whatever the merits of that case might be, and more importantly unable to proceed within the constitutional limits of the Criminal Syndicalism Act. It's not a question of zealous prosecution. It's a question of enforcing the law within the proper constitutional limits that this Court has laid down and it certainly suggest in Brandenburg that within the Criminal Syndicalism Act there is an area within which the state may properly act or prohibit the advocacy of criminal means whether it be killing all cops, whether it be blowing up a building, person or whatever. We think the state should be able to prove the causative relationship between the advocacy and these criminal acts. Thank you.
Warren E. Burger: Thank you Mr. Harris. Thank you Mr. Wirin. The case is submitted.