Ellis v. Dyson, 421 U.S. 426 (1975)

MR. JUSTICE POWELL, with whom MR. JUSTICE STEWART joins, and THE CHIEF JUSTICE joins as to Part II, dissenting.

Petitioners were convicted in Dallas, Tex., Municipal Court, on pleas of nolo contendere, of violating the city’s loitering ordinance. They were fined $10 each. Under Texas law, petitioners had the right to a trial de novo in the County Court. Appellate review of an adverse County Court judgment imposing a fine in excess of $100 would have been available in the Texas Court of Criminal Appeals. A determination by the highest state court in which a decision could be had, if it upheld the constitutionality of the ordinance, would have been appealable to this Court. 28 U.S.C. § 1257(2).

Petitioners deliberately elected to forgo these remedies, allowed their convictions in Municipal Court to become final, and thereafter filed this action under 42 U.S.C. § 1983 in the Federal District Court. Petitioners’ complaint attacked the constitutionality of the ordinance and sought two forms of relief:{1} (i) an order, characterized by the District Court as a request for an injunction, expunging the records of petitioners’ arrests and convictions for loitering; and (ii) a declaratory judgment that the ordinance is unconstitutional, i.e., that it cannot constitutionally be applied to them in the future. The District Court denied the requested relief, and the Court of Appeals for the Fifth Circuit affirmed.

In its decision today, relying on Steffel v. Thompson, 415 U.S. 452 (1974), the Court reverses the decision of the Court of Appeals and remands the case for further consideration of petitioners’ request for declaratory relief. The Court also finds it unnecessary to consider petitioners’ prayer for expunction. I am in disagreement on both points. I would hold that any relief as to petitioners’ previous arrests and convictions is barred by their nolo contendere pleas, equivalent under Texas law to pleas of guilty,{2} and by their deliberate decision to forgo state appellate remedies. As to prospective relief, I think that Steffel and the general principles of justiciability to which it adheres require affirmance, not a reversal and remand. In view of the undisputed facts in this case, we should decide these issues now. The ends of justice will not be served by a remand and further litigation. Moreover, today’s decision, especially in its reading of Steffel, seems likely to confuse both the District Court in this case and other federal courts faced with an increasing number of cases raising similar problems.

I

I turn first to the retrospective relief sought by petitioners: their prayer for an order expunging the records of their arrests and convictions. The question raised by this prayer is whether a plaintiff may resort to § 1983 to attack collaterally his state criminal conviction when he has either knowingly pleaded guilty to the charge or failed to invoke state appellate remedies. This issue was raised in the courts below,{3} decided by those courts,{4} and argued to this Court.{5} As the Court recognizes, ante at 435, this issue is unaffected by our decision in Steffel, which is relevant only to petitioners’ request for prospective relief. Moreover, even if the case is moot insofar as it concerns prospective relief because petitioners no longer live in Dallas, that fact has no bearing on petitioners’ request for expunction. Thus, I can see no justification for deferring resolution of this important issue.

Collateral attack in federal court on state criminal convictions normally comes in habeas corpus proceedings under 28 U.S.C. § 2241 et seq. In such proceedings, the state court’s resolution of a constitutional claim generally is not binding on the federal court. See Brown v. Allen, 344 U.S. 443 (1953). Petitioners, however, were neither incarcerated nor otherwise restrained as a result of their convictions, and thus could not satisfy the custody requirement of habeas corpus jurisdiction. E.g., Carafas v. LaVallee, 391 U.S. 234 (1968). They accordingly proceeded under § 1983, seeking to have the ordinance invalidated, their convictions declared void, and the records thereof expunged.

The Court has never expressly decided whether and in what circumstances § 1983 can be invoked to attack collaterally state criminal convictions. The resolution of this general problem depends on the extent to which, in a § 1983 action, principles of res judicata bar relitigation in federal court of constitutional issues decided in state judicial proceedings to which the federal plaintiff was a party. But we need not resolve this general problem here.{6} For even assuming, arguendo, that the scope of collateral attack is as expansive in § 1983 actions as it has been held to be in habeas corpus proceedings, I think it clear beyond question that petitioners’ action for retrospective relief is barred. If petitioners had been confined as a result of their nolo contendere pleas, and thereafter filed habeas corpus petitions in federal court, there can be no doubt that their petitions should have been dismissed. As noted above, the nolo contendere pleas were equivalent to guilty pleas. It is settled that, when defendants plead guilty to state criminal charges, they may not seek federal habeas corpus relief on the basis of constitutional claims antecedent to and independent of the guilty pleas. E.g., Tollett v. Henderson, 411 U.S. 258, 267 (1973). In such circumstances, federal habeas petitioners may attack only "the voluntary and intelligent character" of the pleas. Ibid.{7} Moreover, when federal habeas petitioners deliberately have elected to forgo state appellate remedies afforded them, the federal court may deny relief.{8} Fay v. Noia, 372 U.S. 391, 438-439 (1963). When a state criminal defendant pleads guilty to state charges or refuses to invoke state appellate remedies, his conviction no longer can be said to rest on an alleged denial of a constitutional right. Instead, it rests solely on the defendant’s refusal to litigate the asserted right. The only issue then cognizable on collateral attack is whether the refusal to litigate was knowing and voluntary. If it was, collateral attack based on the asserted constitutional claim is foreclosed. See id. at 468-472 (Harlan, J., dissenting).

These established principles of federal habeas corpus jurisdiction should apply with at least equal force to attempts under § 1983 collaterally to attack state criminal convictions.{9} I would hold that § 1983 does not allow such deliberate circumvention of the state judicial processes, and that, when a state defendant knowingly pleads guilty or fails to invoke state appellate remedies, his conviction is not subject to impeachment in a § 1983 action.

II

With respect to petitioners’ request for a declaration that the Dallas ordinance is unconstitutional and cannot be applied to them in the future, the Court holds that "[t]he principles and approach of Steffel are applicable," and remands for reconsideration in light of our opinion in that case. Ante at 433, 434. In my view, this disposition seriously misreads our opinion in Steffel. It ignores the necessity, fully recognized in Steffel, that a complaint make out a justiciable case or controversy, the indispensable condition under Art. III to the exercise of federal judicial power.

A

The question, insofar as petitioners seek prospective relief, is whether the challenge to the constitutionality of the Dallas ordinance was presented, at the time the complaint was filed, in the context of a live controversy between the parties:

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).

This test was met in Steffel. It is not even arguably met in this case.

The undisputed facts in Steffel showed that petitioner faced an imminent prospect of arrest and prosecution under the challenged state statute. He previously had engaged in distributing handbills at a shopping center, and, on two occasions, had been threatened with arrest if he continued his activity. On the second occasion, petitioner avoided arrest only by leaving the premises. His companion, who did not leave, was arrested and arraigned on a charge of criminal trespass. The parties stipulated that,

if petitioner returned [to the shopping center] and refused upon request to stop handbilling, a warrant would be sworn out, and he might be arrested and charged with a violation of the Georgia statute.

415 U.S. at 456. In light of these facts, we said:

[P]etitioner has alleged threats of prosecution that cannot be characterized as "imaginary or speculative." . . . He has been twice warned to stop handbilling that he claims is constitutionally protected, and has been told by the police that, if he again handbills at the shopping center and disobeys a warning to stop, he will likely be prosecuted. The prosecution of petitioner’s handbilling companion is ample demonstration that petitioner’s concern with arrest has not been "chimerical," Poe v. Ullman, 367 U.S. 497, 508 (1961). In these circumstances, it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.

Id. at 459. As MR. JUSTICE STEWART put it in his concurring opinion:

The petitioner . . . has succeeded in objectively showing that the threat of imminent arrest, corroborated by the actual arrest of his companion, has created an actual concrete controversy between himself and the agents of the State.

Id. at 476.

The situation in the present case differs from that in Steffel in controlling respects. Petitioners previously had been arrested for "loitering" at 2 a.m. in a section of the city remote from their residences. Whether these arrests and petitioners’ subsequent convictions could have survived constitutional challenge, had it timely been made, is a matter irrelevant to the present issue. Petitioners’ previous arrests and convictions are relevant to the justiciability of their prayer for prospective relief only if they evidence a realistic likelihood that petitioners may be arrested again, and, therefore, that the ordinance causes them real and immediate harm. See O’Shea v. Littleton, 414 U.S. 488, 496 (1974). These preconditions to the requisite justiciability simply do not exist in this case.

Application of the challenged Dallas ordinance depends, by its terms, on the facts of each case. It is extremely unlikely that the exact set of circumstances leading to the previous arrest and conviction of petitioners will ever be repeated. Petitioners’ brief, attempting to accommodate to Steffel’s rationale, refers vaguely to "petitioners’ fear of arrest and prosecution."{10} Read most generously, however, the complaint and supporting materials are barren of any facts relating petitioners’ past arrests to a possibility of future arrests, or otherwise substantiating their asserted fears that the Dallas ordinance again will be invoked against them. The only basis for "fear" mentioned by counsel is the fact that loitering arrests were occurring in Dallas "at the rate of more than two per day."{11} But two arrests per day in a city of more than one million persons hardly represents a high-risk situation for anyone, and certainly poses no particularized threat to petitioners. Under the facts alleged in the complaint or appearing from other materials before the District Court, petitioners’ position with respect to the challenged ordinance was no different from what it would have been had they never been arrested, and their chances of future prosecution no greater than those of any other person who used the streets of Dallas.{12}

B

In several cases, we have found constitutional challenges to state and federal statutes justiciable despite the absence of actual threats of enforcement directed personally to the plaintiff. E.g., Doe v. Bolton, 410 U.S. 179, 188-189 (1973); Lake Carriers’ Assn. v. MacMullan, 406 U.S. 498, 506-508 (1972). See CSC v. Letter Carriers, 413 U.S. 548, 551-553 (1973). In each such case, however, the challenged statute applied particularly and unambiguously to activities in which the plaintiff regularly engaged or sought to engage. In each case, the plaintiff claimed that the State or Federal Government, by prohibiting such activities, had exceeded substantive constitutional limitations on the reach of its powers. The plaintiffs, therefore, were put to a choice.{13} Unless declaratory relief was available, they were compelled to choose between a genuine risk of criminal prosecution and conformity to the challenged statute, a conformity that would require them to incur substantial deprivation either in tangible form or in forgoing the exercise of asserted constitutional rights. In such circumstances, we have recognized that the challenged statute causes the plaintiff present harm, and that the "controversy is both immediate and real." Lake Carriers’ Assn., supra, at 508.

Steffel does not depart from this general analysis. The difference between Steffel and the above cases lies in the nature of the statute involved. Steffel concerned a general trespass ordinance that did not, on its face, apply particularly to activities in which Steffel engaged or sought to engage. The statute was susceptible of a multitude of applications that would not even arguably exceed constitutional limitations on state power. But the threatened prosecution of Steffel, following the arrest and prosecution of his companion, demonstrated that the state officials construed the statute to apply to the precise activities in which Steffel had engaged and proposed to engage in the future. There was, therefore, no question that Steffel was confronted with a choice identical in principle and practical consequence to that faced by plaintiffs in the above cases: he could either risk criminal prosecution or forgo engaging in specific activities that he believed were protected by the First Amendment. Whichever choice he made, the harm to Steffel was real and immediate.

The pleadings in this case reveal no like circumstances. They merely aver that the Dallas ordinance has a "chilling" effect on First Amendment rights of speech and association. This averment, moreover, is related not to petitioners specifically, but rather to the "citizens of Dallas."{14} While it is theoretically possible that the ordinance may be applied to infringe petitioners’ First Amendment rights, nothing in the facts relating to their respective prior arrests and convictions indicates that the ordinance has been so applied to petitioners, or indeed to anyone else. In short, petitioners rely entirely on a speculative deterrent effect that the Dallas ordinance conceivably could have on the exercise of constitutional rights by all Dallas citizens. The complaint nowhere alleges that the ordinance has been applied to particular activities, assertedly within the scope of First Amendment protection, in which petitioners regularly engage or in which they would engage but do not because of fear of prosecution. Compare CSC v. Letter Carriers, supra, with United Public Workers v. Mitchell, 330 U.S. 75, 86-91 (1947). As the cases discussed above demonstrate, before a statute may be challenged on the ground that it deters the exercise of constitutional rights, the alleged restraint must, in all events, be personal to the complaining parties.

It would not accord with judicial responsibility to adjudge, in a matter involving constitutionality, between the freedom of the individual and the requirements of public order except when definite rights appear upon the one side and definite prejudicial interferences upon the other.

United Public Workers, supra at 90.{15}

C

Petitioners’ pleadings thus failed to demonstrate that they were suffering any "real and immediate" harm consequent to the enforcement of the Dallas ordinance. The Court’s opinion, however, states that the District Court and the Court of Appeals

had no reason to . . . determine the actual existence of a genuine threat of prosecution, or to inquire into the relationship between the past prosecution and the threat of prosecutions for similar activity in the future.

Ante at 433. To the contrary, I find it clear that the District Court did hold, erroneously, that petitioners’ complaint stated a justiciable claim for prospective relief.{16} But even if, as the Court apparently believes, the District Court simply assumed a justiciable claim for relief, that, in itself would constitute a departure from what I had thought to be the settled order of federal adjudication. The District Court’s first obligation, here as in all cases, was to determine whether, taking the allegations of the complaint as true, petitioners’ claim for prospective relief was justiciable. If it was not, then there was no need -- indeed, no jurisdiction -- to consider the claim further.

The situation here is similar to that, in O’Shea v. Littleton, supra. In that case, the District Court dismissed the suit both for want of equitable jurisdiction to grant the relief prayed for and on the ground that the defendants were immune from suit. The Court of Appeals for the Seventh Circuit reversed, and we, in turn, reversed the decision of the Court of Appeals. What we said there is equally applicable here:

The complaint failed to satisfy the threshold requirement imposed by Art. III . . . that those who seek to invoke the power of federal courts must allege an actual case or controversy. . . Plaintiffs in the federal courts

must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.

414 U.S. at 43, quoting Linda R. S. v. Richard D., 410 U.S. 614, 617 (1973) (emphasis added).

There being no substantial controversy between the parties, petitioners’ complaint, insofar as it sought prospective relief, should have been dismissed. The Court’s opinion acknowledges that there is a serious question "whether a case or controversy exists today." (Emphasis added.) But the Court relates this question to facts, not of record, that have occurred since this suit was filed. Ante at 434. In view of the concession made at argument that petitioners’ whereabouts are unknown, and that counsel was no longer in touch with them,{17} there is indeed serious question whether a justiciable controversy now exists. But the critical issue, and one that the Court declines to address, is whether the petitioners were entitled to invoke federal jurisdiction when they instituted suit.

A determination of present mootness is altogether immaterial to the question whether there was federal jurisdiction at the time declaratory relief initially was sought. Only if a specific, live controversy existed between the parties at the threshold can federal jurisdiction attach. And only if the requisite justiciable controversy then existed may a court determine whether it persists at some subsequent stage of the case, or whether the requested relief properly can be granted.{18} In Steffel, we adopted precisely this order of resolving just such issues; first, we found that the case was justiciable when filed; only then did we reach the question whether declaratory relief was proper in the circumstances and remand for a determination of whether with the passage of time the threat to Steffel had subsided. There is no occasion for a remand for any purpose when the record demonstrates indisputably that petitioners’ prayer for prospective relief was not, at the outset, within the District Court’s power to grant.

III

I am concerned by the Court’s failure to decide whether, in the circumstances here, petitioners can attack collaterally their convictions under the ordinance. The Court’s reticence should not be viewed as endorsing the appropriateness of collateral attack under § 1983 in these or any other circumstances. But this issue was decided by the District Court, and, as Mr. Justice Harlan once said in similar circumstances, the Court’s remand places the District Court

in the uncomfortable position where it will have to choose between adhering to its present decision -- in my view, a faithful reflection of this Court’s past cases -- or treating the remand as an oblique invitation from this Court to [reverse its decision].

Scholle v. Hare, 369 U.S. 429, 434 (1962) (dissenting opinion).

Equally important, the reversal and remand of this case -- especially in an opinion stating that "the principles and approach of Steffel are applicable" to petitioners’ request for declaratory relief -- are likely to cause federal courts all over the country to think that Steffel must be read as having a far wider application than that decision itself warrants. Such a reading would expand the number and, more importantly, the kinds, of occasions in which federal district courts properly can be called upon to issue declarations as to the constitutionality of state statutes. I perceive no reason why we should refrain from deciding the threshold justiciability issue, an issue critical to proper understanding and application of the Steffel decision. Again in the words of Mr. Justice Harlan, dissenting from the remand of a case that arose in the wake of Baker v. Carr, 369 U.S. 186 (1962):

Both the orderly solution of this particular case and the wider ramifications that are bound to follow in the wake of [Steffel] demand that the Court come to grips now with the basic issue tendered by this case.

Scholle v. Hare, supra at 435.

In sum, I think the Court should resolve the major issues properly before us, issues as to which there is no factual dispute, rather than delay their resolution, impose unnecessary burdens upon the litigants, and risk widespread uncertainty among the federal judiciary.