author: Mr. Justice White Mr. Justice Blackmun, Mr. Justice Douglas,

text:
    O’SHEA, MAGISTRATE, CIRCUIT COURT OF ALEXANDER COUNTY, ILLINOIS, et al. v. LITTLETON et al.
    No. 72-953.
    Argued October 17, 1973
    Decided January 15, 1974

      White, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and RehNQüist, JJ., joined. Black-MUN, J., filed an opinion concurring in the judgment and in Part I of the Court’s opinion, post, p. 504. Douglas, J., filed a dissenting opinion, in which BrenhaN and Marshall, JJ., joined, post, p. 505.

      Robert J. O’Rourke, Deputy Assistant Attorney General of Illinois, argued the cause for petitioners. With him on the briefs were William J. Scott, Attorney General, Fred F. Herzog, First Assistant Attorney General, John W. Freels, Special Assistant Attorney General, and Jerráld B. Abrams, Assistant Attorney General.

      Alan M. Wiseman argued the cause for respondents. With him on the brief were James B. O’Shaughnessy and Michael P. Seng

      'Briefs of amici curiae urging reversal were filed by Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, Doris H. Maier and Edward P. O’Brien, Assistant Attorneys General, and Robert R. Granucci, Deputy Attorney General, for the State of California; and by Jack E. Horsley and Richard F. Record, Jr., for the Illinois State Bar Assn.

   Mr. Justice White

delivered the opinion of the Court.

The respondents are 19 named individuals who commenced this civil rights action, individually and on behalf of a class of citizens of the city of Cairo, Illinois, against the State’s Attorney for Alexander County, Illinois, his investigator, the Police Commissioner of Cairo, and the petitioners here, Michael O’Shea and Dorothy Spomer, Magistrate and Associate Judge of the Alexander County Circuit Court, respectively, alleging that they have intentionally engaged in, and are continuing to engage in, various patterns and practices of conduct in the administration of the criminal justice system in Alexander County that deprive respondents of rights secured by the First, Sixth, Eighth, Thirteenth, and Fourteenth Amendments, and by 42 U. S. C. §§ 1981, 1982, 1983, and 1985. The complaint, as amended, alleges that since the early 1960’s, black citizens of Cairo, together with a small number of white persons on their behalf, have been actively, peaceably and lawfully seeking equality of opportunity and treatment in employment, housing, education, participation in governmental decisionmaking and in ordinary day-to-day relations with white citizens and officials of Cairo, and have, as an important part of their protest, participated in, and encouraged others to participate in, an economic boycott of city merchants who respondents consider have engaged in racial discrimination. Allegedly, there 'had resulted a great deal of tension and antagonism among the white citizens and officials of Cairo.

The individual respondents are 17 black and two white residents of Cairo. The class, or classes, which they purport to represent are alleged to include “all those who, on account of their race or creed and because of their exercise of First Amendment rights, have [been] in the past and continue to be subjected to the unconstitutional and selectively discriminatory enforcement and administration of criminal justice in Alexander County,” as well as financially poor persons “who, on account of their poverty, are unable to afford bail, or are unable to afford counsel and jury trials in city ordinance violation cases.” The complaint charges the State’s Attorney, his investigator, and the Police Commissioner with a pattern and practice of intentional racial discrimination in the performance of their duties, by which the state criminal laws and procedures are deliberately applied more harshly to black residents of Cairo and inadequately applied to white persons who victimize blacks, to deter respondents from engaging in their lawful attempt to achieve equality. Specific supporting examples of such conduct involving some of the individual respondents are detailed in the complaint as to the State’s Attorney and his investigator.

With respect to the petitioners, the county magistrate and judge, a continuing pattern and practice of conduct, under color of law, is alleged to have denied and to continue to deny the constitutional rights of respondents and members of their class in three respects:

(1) petitioners set bond in criminal cases according to an unofficial bond schedule without regard to the facts of a case or circumstances of an individual defendant in violation of the Eighth and Fourteenth Amendments;

(2) “on information and belief” they set sentences higher and impose harsher conditions for respondents and members of their class than for white persons, and (3) they require respondents and members of their class when charged with violations of city ordinances which carry fines and possible jail penalties if the fine cannot be paid, to pay for a trial by jury' in violation of the Sixth, Eighth, and Fourteenth Amendments. Each of these continuing practices is alleged to have been carried out intentionally to deprive respondents and their class of the protections of the county criminal justice system and to deter them from engaging in their boycott and similar activities. The complaint further alleges that there is no adequate remedy at law and requests that the practices be enjoined. No damages were sought against the petitioners in this case, nor were any specific instances involving the individually named respondents set forth in the claim against these judicial officers.

The District Court dismissed the case for want of jurisdiction to issue the injunctive relief prayed for and on the ground that petitioners were immune from suit with respect to acts done in the course of their judicial duties. The Court of Appeals reversed, holding that Pierson v. Ray, 386 U. S. 547, 554 (1967), on which the District Court relied, did not forbid the issuance of injunctions against judicial officers if it is alleged and proved that they have knowingly engaged in conduct intended to discriminate against a cognizable class of persons on the basis of race; Absent sufficient remedy at law, the Court of Appeals ruled that in the event respondents proved their allegations, the District Court should proceed to fashion appropriate injunctive relief to prevent petitioners from depriving others of their constitutional rights in the course of carrying out their judicial duties in the future. We granted certiorari. 411 U. S. 915 (1973).

I

We reverse the judgment of the Court of Appeals. The complaint failed to satisfy the threshold requirement imposed by Art. Ill of the Constitution that those who seek to invoke the power of federal courts must allege an actual case or controversy. Flast v. Cohen, 392 U. S. 83, 94-101 (1968); Jenkins v. McKeithen, 395 U. S. 411, 421-425 (1969) (opinion of Marshall, J.). Plaintiffs in the federal courts “must allege soxpe threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.” Linda R. S. v. Richard D., 410 U. S. 614, 617 (1973). There must be a “personal stake in the outcome” such as to “assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U. S. 186, 204 (1962). Nor is the principle different where statutory issues are raised. Cf. United States v. SCRAP, 412 U. S. 669, 687 (1973). Abstract injury is not enough. It must be alleged that the plaintiff “has sustained or is immediately in danger of sustaining some direct injury” as the result of the challenged statute or official conduct. Massachusetts v. Mellon, 262 U. S. 447, 488 (1923). The injury or threat of injury must be both “real and immediate,” not “conjectural” or “hypothetical.” Golden v. Zwickler, 394 U. S. 103, 109-110 (1969); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941); United Public Workers v. Mitchell, 330 U. S. 75, 89-91 (1947). Moreover, if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class. Bailey v. Patterson, 369 U. S. 31, 32-33 (1962); Indiana Employment Division v. Burney, 409 U. S. 540 (1973). See 3B J. Moore, Federal Practice, ¶ 23.10-1, n. 8 (2d ed. 1971).

In the complaint that began this action, the sole allegations of injury are that petitioners “have engaged in and continue to engage in, a pattern and practice of conduct ... all of which has deprived and continues to deprive plaintiffs and members of their class of their” constitutional rights and, again, that petitioners “have denied and continue to deny to plaintiffs and members of their class their constitutional rights” by illegal bond-setting, sentencing, and jury-fee practices. None of the named plaintiffs is identified as himself having suffered any injury in the manner specified. In sharp contrast to the claim for relief against the State’s Attorney where specific instances of misconduct with respect to particular individuals are alleged, the claim against petitioners alleges injury in only the most general terms. At oral argument, respondents’ counsel stated that some of the named plaintiffs-respondents, who could be identified by name if necessary, had actually been defendants in proceedings before petitioners and had suffered from the alleged unconstitutional practices. Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects. Neither the complaint nor respondents’ counsel suggested that any of the named plaintiffs at the time the complaint was filed were themselves serving an allegedly illegal sentence or were on trial or awaiting trial before petitioners. Indeed, if any of the respondents were then serving an assertedly unlawful sentence, the complaint would inappropriately be seeking relief from or modification of current, existing custody. See Preiser v. Rodriguez, 411 U. S. 475 (1973). Furthermore, if any were then on trial or awaiting trial in state proceedings, the complaint would be seeking injunctive relief that a federal court should not provide. Younger v. Harris, 401 U. S. 37 (1971); see also Part II, infra. We thus do not strain to read inappropriate meaning into the con-clusory allegations of this complaint.

Of course, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury. But here the prospect of future injury rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners. Important to this assessment is the absence of allegations that any relevant criminal statute of the State of Illinois is unconstitutional on its face or as applied or that respondents have been or will be improperly charged with violating criminal law. If the statutes that might possibly be enforced against respondents are valid laws, and if charges under these statutes are not improvidently made or pressed, the question becomes whether any perceived threat to respondents is sufficiently real and immediate to show an existing controversy simply because they anticipate violating lawful criminal statutes and being tried for their offenses, in which event they may appear before petitioners and, if they do, will be affected by the allegedly illegal conduct charged. Apparently, the proposition is that if respondents proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory practices that petitioners are alleged to have followed. But it seems to us that attempting to anticipate whether and when these respondents will be charged with crime and will be made to appear before either petitioner takes us into the area of speculation and conjecture. See Younger v. Harris, supra, at 41-42. The nature of respondents’ activities is not described in detail and no specific threats are alleged to have been made against them. Accepting that they are deeply involved in a program to eliminate racial discrimination in Cairo and that tensions are high, we are nonetheless unable to. conclude that the case-or-controversy requirement is satisfied by general assertions or inferences that in the course of their activities respondents will be prosecuted for violating valid criminal laws. We assume that respondents will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners.

As in Golden v. Zwickler, we doubt that there is “ ‘sufficient immediacy and reality’ ” to respondents’ allegations of future injury to warrant invocation of the jurisdiction of the District Court. There, “it was wholly conjectural that another occasion might arise when Zwickler might be prosecuted for distributing the handbills referred to in the complaint.” 394 U. S., at 109. Here we can only speculate whether respondents will be arrested, either again or for the first time, for violating a municipal ordinance or a state statute, particularly in the absence of any allegations that unconstitutional criminal statutes are being employed to deter constitutionally protected conduct. Cf. Perez v. Ledesma, 401 U. S. 82, 101-102 (1971) (opinion of Brennan, J.). Even though Zwickler attacked a specific statute under which he had previously-been prosecuted, the threat of a new prosecution was not sufficiently imminent to satisfy the jurisdictional requirements of the federal courts. Similarly, respondents here have not pointed to any imminent prosecutions contemplated against any of their number and they naturally do not suggest that any one of them expects to violate valid criminal laws. Yet their vulnerability to the alleged threatened injury from which relief is sought is necessarily contingent upon the bringing of prosecutions against one or more of them. Under these circumstances, where respondents do not claim any constitutional right to engage in conduct proscribed by therefore presumably permissible state laws, or indicate that it is otherwise their intention to so conduct themselves, the threat of injury from the alleged course of conduct they attack is simply too remote to satisfy the case-or-controversy requirement and permit adjudication by a federal court.

In Boyle v. Landry, 401 U. S. 77, 81 (1971), the Court ordered a complaint dismissed for insufficiency of its allegations where there was no basis for inferring “that any one or more of the citizens who brought this suit is in any jeopardy of suffering irreparable injury if the State is left free to prosecute under the intimidation statute in the normal manner.” The Court expressed the view that “the normal course of state criminal prosecutions cannot be disrupted or blocked on the basis of charges which in the last analysis amount to nothing more than speculation about the future.” Ibid. A similar element of uncertainty about whether the alleged injury will be likely to .occur is present in this case, and a similar reluctance to interfere with the normal operation of state administration of its criminal laws in the manner sought by respondents strengthens the conclusion that the allegations in this complaint are too insubstantial to warrant federal adjudication of the merits of respondents’ claim.

The foregoing considerations obviously shade into those determining whether the complaint states a sound basis for equitable relief; and even if we were inclined to consider the complaint as presenting an existing case or controversy, we would firmly disagree with the Court of Appeals that an adequate basis for equitable relief against petitioners had been stated. The Court has recently reaffirmed the “basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Younger v. Harris, 401 U. S. 37, 43-44 (1971). Additionally, recognition of the need for a proper balance in the concurrent operation of federal and state courts counsels restraint against the issuance of injunctions against state officers engaged in the administration of the State’s criminal laws in the absence of a showing of irreparable injury which is “ Toth great and immediate.’ ” Id., at 46. See, e.g., Fenner v. Boykin, 271 U. S. 240 (1926); Douglas v. City of Jeannette, 319 U. S. 157 (1943). In holding that 42 U. S. C. § 1983 is an Act of Congress that falls within the “expressly authorized” exception to the absolute bar against federal injunctions directed at state court proceedings provided by 28 U. S. C. § 2283, the Court expressly observed that it did not intend to “question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding.” Mitchum v. Foster, 407 U. S. 225, 243 (1972). Those principles preclude equitable intervention in the circumstances present here.

Respondents do not seek to strike down a single state statute, either on its face or as applied; nor do they seek to enjoin any criminal prosecutions that might be brought under a challenged criminal law. In fact, respondents apparently contemplate that prosecutions will be brought under seemingly valid state laws. What they seek is an injunction aimed at controlling or preventing the occurrence of specific events that might take place in the course of future state criminal trials. The order the Court of Appeals thought should be available if respondents proved their allegations would be operative only where permissible state prosecutions are pending against one or more of the beneficiaries of the injunction. Apparently the order would contemplate interruption , of state proceedings to adjudicate assertions of noncompliance by petitioners. This seems to us nothing less than an ongoing federal audit of state criminal proceedings which would indirectly accomplish the kind of interference that Younger v. Harris, supra, and related cases sought to prevent.

A federal court should not intervene to establish the basis for future intervention that would be so intrusive and unworkable. In concluding that injunctive relief would be available in this case because it would not interfere with prosecutions to be commenced under challenged statutes, the Court of Appeals misconceived the underlying basis for withholding federal equitable relief when the normal course of criminal proceedings in the state courts would otherwise be disrupted. The objection is to unwarranted anticipatory interference in the state criminal process by means of continuous or piecemeal interruptions of the state proceedings by litigation in the federal courts; the object is to sustain “[t]he special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” Stefanelli v. Minara, 342 U. S. 117, 120 (1951). See also Cleary v. Bolger, 371 U. S. 392 (1963); Wilson v. Schnettler, 365 U. S. 381 (1961); Pugach v. Dollinger, 365 U. S. 458 (1961); cf. Rea v. United States, 350 U. S. 214 (1956). An injunction of the type contemplated by respondents and the Court of Appeals would disrupt the normal course of proceedings in the state courts via resort to the federal suit for determination of the claim ab initio, just as would the request for injunctive relief from an ongoing state prosecution against the federal plaintiff which was found to be unwarranted in Younger. Moreover, it would require for its enforcement the continuous supervision by the federal court over the conduct of the petitioners in the course of future criminal trial proceedings involving any of the members of the respondents’ broadly defined class. The Court of Appeals disclaimed any intention of requiring the District Court to sit in constant day-to-day supervision of these judicial officers, but the “periodic reporting” system it thought might be warranted would constitute a form of monitoring of the operation of state court functions that is antipathetic to established principles of comity. Cf. Greenwood v. Peacock, 384 U. S. 808 (1966). Moreover, because an injunction against acts which might occur in the course of future criminal proceedings would necessarily impose continuing obligations of compliance, the question arises of how compliance might be enforced if the beneficiaries of the injunction were to charge that it had been disobeyed. Presumably, any member of respondents’ class who appeared as an accused before petitioners could allege and have adjudicated a claim that petitioners were in contempt of the federal court’s injunction order, with review of adverse decisions in the Court of Appeals and, perhaps, in this Court. Apart from the inherent difficulties in defining the proper standards against which such claims might be measured, and the significant problems of proving noncompliance in individual cases, such a major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict with the principles of equitable restraint which this Court has recognized in the decisions previously noted.

Respondents have failed, moreover, to establish the basic requisites of the issuance of equitable relief in these circumstances — the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law. We have already canvassed the necessarily conjectural nature of the threatened injury to which respondents are allegedly .subjected. And if any of the respondents are ever prosecuted and face trial, or if they are illegally sentenced, there are available state and federal procedures which could provide relief from the wrongful conduct alleged. Open to a victim of the discriminatory practices asserted under state law are the right to a substitution of judge or a change of venue, Ill. Rev. Stat., c. 38, §§ 114-5, 114-6 (1971), review on direct appeal or on postconviction collateral review, and the opportunity to demonstrate that the conduct of these judicial officers is so prejudicial to the administration of justice that available disciplinary proceedings, including the possibility of suspension or removal, are warranted. Ill. Const., Art. VI, § 15 (e). In appropriate circumstances, moreover, federal habeas relief would undoubtedly be available.

Nor is it true that unless the injunction sought is available federal law will exercise no deterrent effect in these circumstances. Judges who would willfully discriminate on the ground of race or otherwise would willfully deprive the citizen of his constitutional rights, as this complaint alleges, must take account of 18 U. S. C. § 242. See Greenwood v. Peacock, supra, at 830; United States v. Price, 383 U. S. 787, 793-794 (1966); United States v. Guest, 383 U. S. 745, 753-754 (1966); Screws v. United States, 325 U. S. 91, 101-106 (1945); United States v. Classic, 313 U. S. 299 (1941). Cf. Monroe v. Pape, 365 U. S. 167, 187 (1961). That section provides:

“Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State ... to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined . . . or imprisoned . . . .”

Whatever may be the case with respect to civil liability generally, see Pierson v. Ray, 386 U. S. 547 (1967), or civil liability for willful corruption, see Alzua v. Johnson, 231 U. S. 106, 110-111 (1913); Bradley v. Fisher, 13 Wall. 335, 347, 350, 354 (1872), we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. Cf. Ex parte Virginia, 100 U. S. 339 (1880). On the contrary, the- judicially fashioned doctrine of official immunity does not reach “so far as to immunize criminal conduct proscribed by an Act of Congress . . . .” Gravel v. United States, 408 U. S. 606, 627 (1972).

Considering the availability of other avenues of relief open to respondents for the serious conduct they assert, and the abrasive and unmanageable intercession which the injunctive relief they seek would represent, we conclude that, apart from the absence of an existing case or controversy presented by respondents for adjudication, the Court of Appeals erred in deciding that the District Court should entertain respondents’ claim.

Reversed.

Mr. Justice Blackmun,

concurring in part.

I join the judgment of the Court and Part I of the Court’s opinion which holds that the complaint “failed to satisfy the threshold requirement imposed by Art. Ill of the Constitution that those who seek to invoke the power of federal courts must allege an actual case or controversy.” Ante, at 493.

When we arrive at that conclusion, it follows, it seems to me, that we are precluded from considering any other issue presented for review. Thus, the Court’s additional discussion of the question whether a case for equitable relief was stated amounts to an advisory opinion that we are powerless to render. Rayburn’s Case, 2 Dall. 409 (1792); United States v. Evans, 213 U. S. 297, 301 (1909); Muskrat v. United States, 219 U. S. 346, 360-361 (1911); Stearns v. Wood, 236 U. S. 75 (1915); Coffman v. Breeze Corps., 323 U. S. 316 (1945); United Public Workers v. Mitchell, 330 U. S. 75 (1947); Paschall v. Christie-Stewart, Inc., ante, at 101-102.

Mr. Justice Frankfurter stated the applicable principle in speaking for the Court in International Longshoremen’s & Warehousemen’s Union v. Boyd, 347 U. S. 222, 223 (1954):

“On this appeal, appellee contends that the District Court should not have reached the statutory and constitutional questions — that it should have dismissed the suit for want of a 'case or controversy/ for lack of standing on the union’s part to bring this action, .... Since the first objection is conclusive, there is an end of the matter.”

I would adhere to that principle. Either there is no case or controversy and that is the end of the matter, or there is a case or controversy and the Court may go on to a decision on the merits. In my view, the Court may not have it both ways.

Mr. Justice Douglas,

with whom Mr. Justice Brennan and Mr. Justice Marshall concur, dissenting.

The respondents in this case are black and indigent citizens of Cairo, Illinois. Suing in federal court, they alleged that since the early 1960’s black citizens of Cairo have been actively seeking equal opportunity and treatment in employment, housing, education, and ordinary day-to-day relations with the white citizens and officials of Cairo. In this quest, blacks have engaged in a boycott of local merchants deemed to have engaged in racial discrimination.

Alleging that this quest for equality has generated substantial antagonism from white governmental officials, respondents brought a class action under 42 U. S. C. §§ 1981, 1982, 1983, and 1985, seeking to represent citizens of Cairo who have been subjected in the past, and continue to be subjected, to the allegedly discriminatory and unconstitutional administration of criminal justice in Alexander County, Illinois, which includes Cairo. Among their other claims, respondents alleged that petitioners Michael O’Shea and Dorothy Spomer, both now judges in Alexander County, engage in acts which deprive them and members of their class of their constitutional rights. These judges allegedly set bond in criminal cases without regard to the facts of individual cases and as punishment, and not merely to assure the appearance of defendants at trial; impose higher sentences and harsher conditions of sentencing on black than on white citizens; and require respondents and members of their class, when charged with violations of city ordinances which carry fines and possible jail penalties, to pay for a trial by jury if the fine cannot be paid.

I

An injunction was sought against this conduct. The District Court referred obliquely to want of jurisdiction, but, focusing on the fact that the complaint sought review of matters of judicial discretion, concluded that the action should be dismissed because judges and magistrates are immune from liability for acts done in performance of their duties. In reversing and remanding the case to the District Court, the Court of Appeals held that the action was not barred by the doctrine of judicial immunity. The Court of Appeals also held that the complaint contained sufficiently specific factual aver-ments to satisfy Fed. Rule Civ. Proc. 8 (a). 468 F. 2d 389.

This Court now decides for the first time in the course of this litigation that the complaint is deficient because it does not state a “case or controversy” within the meaning of Art. III.

The fact that no party has raised that issue in this closely contested case is no barrier, of course, to our consideration of it. But the reasoning and result reached by the Court are to say the least a tour de force and quite inconsistent with the allegations in the complaint, which are within constitutional requirements.

We know from the record and oral argument that Cairo, Illinois, is boiling with racial conflicts. This class action brought under 42 U. S. C. §§ 1981, 1982, 1983, and 1985 is to remedy vast invasions of civil rights. The Court, however, says that it is not a “case or controversy” because none of the named plaintiffs has alleged infringement of his rights and the fact that other members of the class may have been injured is not enough. As to the latter, Bailey v. Patterson, 369 U. S. 31, 32-33, is cited in support. But in Bailey the named persons were given standing to sue, the statement that “[t]hey cannot represent a class of whom they are not a part,” id., at 32-33, being dictum and its only authority being McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151, 162-163, which was not a class action. Nor was the question on which the case is made to turn resolved in Indiana Employment Division v. Burney, 409 U. S. 540. For we only held that where the named plaintiff had received relief and nothing appeared as to the relief, if any, granted to members of the class, the possible question of mootness should be resolved by the District Court. Even so, there were dissents. The upshot is that one crucial issue on which the Court makes this case turn has not been decided by the Court and was never argued here. At the very least we should have a full-dress argument on that point.

But I do not press the point, for the amended complaint is sufficiently specific to warrant a trial.

As respects O’Shea, the Magistrate, and Spomer, the Circuit Judge, the charges concerning named plaintiffs are as follows:

(1) that excessive bonds have been required in violation of the Eighth and Fourteenth Amendments because petitioners follow an unofficial bond schedule without regard to the facts of individual cases;

(2) on information and belief, that petitioners set higher sentences and impose harsher conditions for respondents and members of their class than for white persons;

(3) that, where the named plaintiffs have been fined and at times sentenced to jail and cannot pay the fines, these judges have required them to pay for a trial by jury-

Moreover, the amended complaint alleges that O’Shea and Spomer “continue to engage in a pattern and practice” which “has deprived and continues to deprive” the named plaintiffs and members of their class of their constitutional rights. Moreover, it is alleged that since early in the 1960’s the blacks of Cairo and some whites have been actively and peaceably seeking to end discrimination in Cairo and that those activities have generated and continue to generate tension and antagonism in Cairo.

It is also alleged that the police commissioner in Cairo “has denied and continues to deny to plaintiffs and members of their class their constitutional rights in the following ways:

“(a) Defendant has made or caused to be made or cooperated in the making of arrests and the filing of charges against plaintiffs and members of their class where such charges are not warranted and are merely for the purpose of harassment and to discourage and prevent plaintiffs and their class from exercising their constitutional rights.
“(b) Defendant has made or caused to be made or cooperated in the making of arrests and the filing of charges against plaintiffs and members of their class where there may be some colorable basis to the arrest or charge, but the crime defined in the charge is much harsher than is warranted by the facts and is far more severe than like charges would be against a white person.”

These allegations support the likelihood that the named plaintiffs as well as members of their class will be arrested in the future and therefore will be brought before O'Shea and Spomer and be subjected to the alleged discriminatory practices in the administration of justice.

These allegations of past and continuing wrongdoings clearly state a case or controversy in the Art. Ill sense. They are as specific as those alleged in Jenkins v. McKeithen, 395 U. S. 411, and in Doe v. Bolton, 410 U. S. 179, where we held that cases or controversies were presented.

Specificity of proof may not be forthcoming; but specificity of charges is clear.

What has been alleged here is not only wrongs done to named plaintiffs, but a recurring pattern of wrongs which establishes, if proved, that the legal regime under control of the whites in Cairo, Illinois, is used over and over again to keep the blacks from exercising First Amendment rights, to discriminate against them, to keep from the blacks the protection of the law in their lawful activities, to weight the scales of justice repeatedly on the side of white prejudices and against black protests, fears, and suffering. This is a more pervasive scheme for suppression of blacks and their civil rights than I have ever seen. It may not survive a trial. But if this case does not present a “case or controversy” involving the named plaintiffs, then that concept has been so watered down as to be no longer recognizable. This will please the white superstructure, but it does violence to the conception of evenhanded justice envisioned by the Constitution.

Suits under 42 U. S. C. § 1983 are exceptions to the absolute bar against federal injunctions directed at state court proceedings provided in 28 U. S. C. § 2283. See Mitchum v. Foster, 407 U. S. 225. It will be much more appropriate to pass on the nature of any equitable relief to be granted after the case has been tried. It may be that when the case is ended, no injunction against any state proceeding will be asked for or will seem appropriate. Or the injunctive relief in final analysis may come down to very narrow and discrete orders prohibiting precise practices. The Court labels this an “ongoing federal audit of state criminal'proceedings.” That of course is a regime that we do not foster. But the Federal Constitution is supreme and if the power of the white power-structure in Cairo, Illinois, is so great as to disregard it, extraordinary relief is demanded. I would cross the bridge of remedies only when the precise contours of the problem have been established after a trial.

To repeat, in the instant case, there are allegations that state lower-court judges are willfully discriminating in their sentencing determinations and are imposing excessive bail. The effects of such results may well persist quite aside from the disposition of the underlying substantive charges at trial or on appeal, and may well be functionally unreviewable. The Court of Appeals observed, 468 F. 2d, at 408, that the individual defendant in a criminal case will find it difficult, if not impossible, to obtain review of a sentence within statutory limits unless it is manifestly harsh or unjustified, citing the Illinois rule that “imposition of sentence is a matter of judicial discretion, and in the absence of a manifest abuse of that discretion it will not be altered by a reviewing court.” People v. Bonner, 37 Ill. 2d 553, 563, 229 N. E. 2d 527, 533 (1967), cert. denied, 392 U. S. 910 (1968).

Furthermore, the respondents do not primarily allege individual instances of excessively harsh treatment, on an absolute scale, of black and indigent defendants, but rather a pattern of discriminatory treatment, especially in favor of prosperous white defendants. Such allegations would amount to denials of equal protection even if blacks and poor whites were not subject to sentences which were so excessive that they constituted manifest abuses of discretion, as long as wealthy whites were at the same time receiving relatively lenient sentences from the same judges. A single instance of sentencing by itself might not strike the conscience of a reviewing court, but when coupled with a pattern of discriminatory treatment could well justify the equitable intervention of a federal court. A class suit where evidence could be developed showing a pattern of discriminatory bail and sentencing decisions by the petitioners would be the one appropriate vehicle in which these claims could be developed.

Whether respondents could come forward with such evidence, and whether the Federal District Court in the exercise of its equitable discretion could frame suitable relief are, of course, questions which can be answered only after a trial on the merits. The resolution of those issues would then be properly reviewable. But the principles of abstention and comity should not bar this suit ab initio.

II

Because I believe that the complaint is sufficient to state an actual “case or controversy,” I would reach the further question, on the merits, whether equitable relief may be warranted in the circumstances of this case. I agree, nonetheless, with my Brother Blackmun that the Court’s discussion in Part II of its opinion, whether a case for equitable relief was stated, is an advisory opinion since the Court has determined that there is no “case or controversy” in the Article III sense.

APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING

There are seven statutes in addition to 42 U. S. C. § 1983 which the Court has recognized constitute “express exceptions” to the policy of nonintervention in state proceedings enunciated by the anti-injunction statute: (1) The Bankruptcy Act, 11 U. S. C. § 1 et seq., specifically recognized by Congress as an exception to 28 U. S. C. § 2283. See Mitchum v. Foster, 407 U. S. 225, 233. (2) The Interpleader Act of 1936, 28 U. S. C. § 2361, allowing federal courts to restrain prosecution of state court suits involving property involved in federal interpleader actions. See Treinies v. Sunshine Mining Co., 308 U. S. 66, 74. (3) The 1851 Act limiting the liability of shipowners by providing for the cessation of proceedings against them when they have made a deposit equal to the value of their ships with a federal court, 46 U. S. C. § 185. See Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 599-600. (4) The Frazier-Lemke Farm Mortgage Act, 11 U. S. C. § 203 (s)(2) (1958 ed.). See Kalb v. Feuerstein, 308 U. S. 433. (5) The Federal Habeas Corpus Act, 28 U. S. C. § 2251, permitting a stay of state court proceedings when a federal habeas action is pending. See Ex Parte Royall, 117 U. S. 241, 248-249. (6) Section 205 (a) of the Emergency Price Control Act of 1942, 56 Stat. 33. See Porter v. Dicken, 328 U. S. 252, 255. (7) Legislation providing for the removal of litigation to federal courts and the simultaneous cessation of state court proceedings, 28 U. S. C. § 1446 (e). See French v. Hay, 22 Wall. 250.

This Court has also recognized the power of a federal court to stay proceedings in a state court to prevent relitigation of an issue already decided in a federal proceeding. See Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356; Julian v. Central Trust Co., 193 U. S. 93, 112. It has recognized the power of a federal court to enjoin state court proceedings to protect the jurisdiction which a federal court has already acquired over a res. See Kline v. Burke Construction Co., 260 U. S. 226; Toucey v. New York Life Ins. Co., 314 U. S. 118, 135-136. And we have found it proper for a federal court to directly enjoin state proceedings when the injunction was sought by either the United States, Leiter Minerals, Inc. v. United States, 352 U. S. 220, or by a federal agency asserting superior federal interests, see NLRB v. Nash-Finch Co., 404 U. S. 138.

       While the Court of Appeals did not attempt to specify exactly what type of injunctive relief might be justified, it at least suggested that it might include a requirement of “periodic reports of various types of aggregate data on actions on bail and sentencing.” 468 F. 2d, at 416. The dissenting judge urged that a federal district court has no power to supervise and regulate by mandatory injunction the discretion which state court judges may exercise within the limits of the powers vested in them by law, and that any relief contemplated by the majority holding which might be applicable to the pattern and practice alleged, if proven, would subject the petitioners to the continuing supervision of the District Court, the necessity of defending their motivations in each instance when the fixing of bail or sentence was challenged by a Negro defendant as inconsistent with the equitable relief granted, and the possibility of a contempt citation for failure to comply with the relief awarded. Id., at 415-417.

       We have previously noted that “Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute. See, e. g., Traficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 212 (1972) (White, J., concurring); Hardin v. Kentucky Utilities Co., 390 U. S. 1, 6 (1968).” Linda R. S. v. Richard D., 410 U. S. 614, 617 n. 3 (1973). But such statutes do not purport to bestow the right to sue in the absence of any indication that invasion of the statutory right has occurred or is likely to occur. Title 42 U. S. C. § 1983, in particular, provides for liability to the “party injured” in an action at law, suit in equity, or other proper proceeding for redress. Perforce, the constitutional requirement of an actual case or controversy remains. Respondents still must show actual or threatened injury of some ldnd to establish standing in the constitutional sense.

       There was no class determination in this case as the complaint was dismissed on grounds which did not require that determination to be made. Petitioners assert that the lack of standing of the named respondents to raise the class claim is buttressed by the incongruous nature of the class respondents seek to represent. The class is variously and incompatibly defined in the complaint as those residents of Cairo, both Negro and white, who have boycotted certain businesses in that city and engaged in similar activities for the purpose of combatting racial discrimination, as a class of all Negro citizens suffering racial discrimination in the application of the criminal justice system in Alexander County (though two white persons are named respondents), and as all poor persons unable to afford bail, counsel, or jury trials in city ordinance cases. The absence of specific claims of injury as a result of any of the wrongful practices charged, in light of the ambiguous and contradictory class definition proffered, bolsters our conclusion that these respondents cannot invoke federal jurisdiction to hear the claims they present in support of their request for injunctive relief.

       Tr. of Oral Arg. 21, 23, 26.

       It was noted in Stefanelli that in suits brought under 42 U. S. C. § 1983 “we have withheld relief in equity even when recognizing that comparable facts would create a cause of action for damages. Compare Giles v. Harris, 189 U. S. 475, with Lane v. Wilson, 307 U. S. 268.” 342 U. S., at 122.

       See n. 3, supra.

       See n. 1, supra.

       O’Shea, Magistrate of Alexander County Circuit Court when this suit was instituted, became an Associate Judge in the county on July 1, 1971.

       Title 28 U. S. C. § 2283 provides that:
      “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”


source: Caselaw Access Project

author: Mr. Justice White

license: Public Domain

text:
    SPOMER, STATE’S ATTORNEY OF ALEXANDER COUNTY, ILLINOIS v. LITTLETON et al.
    No. 72-955.
    Argued October 17, 1973
    Decided January 15, 1974
    White, J., delivered the opinion for a unanimous Court.

      James B. Zagel argued the cause for petitioner. With him on the brief was Patrick F. Healy.

      Alan M. Wiseman argued the cause for respondents. With him on the brief were James B. O’Shaugh-nessy and Michael P. Seng

      Briefs of amid curiae urging reversal were filed by Evelle J. Younger, Attorney General, Edward A. Him, Jr., Chief Assistant Attorney General, Doris H. Maier and Edward P. O’Brien, Assistant Attorneys General, and Robert R. Granucci, Deputy Attorney General, for the State of California; and by Joseph P. Busch for the District Attorney of Los Angeles County.

   Mr. Justice White

delivered the opinion of the Court.

This is a companion case to O’Shea v. Littleton, ante, p. 488, involving claims which the respondents, 17 black and two white residents of Cairo, Illinois, individually and as representatives of the class they purport to represent, set forth in that portion of their amended civil rights complaint which alleged wrongful conduct on the part of Peyton Berbling, individually and in his capacity as State’s Attorney for Alexander County, Illinois, the county in which the city of Cairo is located. As discussed in O’Shea, the complaint alleged a broad range of racially discriminatory patterns and practices in the administration of the criminal justice system in Alexander County by the Police Commissioner of Cairo, Magistrate Michael O’Shea and Associate Judge Dorothy Spomer of the Alexander County Circuit Court, State’s Attorney Berbling, and Earl Shepherd, an investigator for Berbling. Allegedly, a decade of active, but lawful, efforts to achieve racial equality for the black residents of Cairo had resulted in continuing intentional conduct on the part of those named as defendants in the complaint to deprive the plaintiff-respondents of the evenhanded protection of the criminal laws, in violation of various amendments to the Constitution and 42 U. S. C. §§ 1981, 1982, 1983, and 1985.

In particular, the complaint charged State’s Attorney Berbling with purposeful racial discrimination, under color of state law, by neglecting to provide for respondents’ safety though knowing of the possibility of racial disorders, by refusing to prosecute persons who threaten respondents’ safety and property, and by refusing to permit respondents to give evidence against white persons who threaten them. It was alleged, with particular incidents recounted as to some charges, that “Berbling has denied and continues to deny” the constitutional rights of respondents and members of their class by following the practices of (a) refusing to initiate criminal proceedings and to hear criminal charges against white persons upon complaint by members of respondents’ class, (b) submitting misdemeanor complaints which have been filed by black persons against whites to a grand jury, rather than proceeding by information or complaint, and then either interrogating witnesses and complainants before the grand jury with purposeful intent to racially discriminate, or failing to interrogate them at all, (c) inadequately prosecuting the few criminal proceedings instituted against whites at respondents’ behest in order to lose the cases or settle them on terms more favorable than those brought against blacks, (d) recommending substantially greater bonds and sentences in cases involving respondents and members of their class than for cases involving whites, (e) charging respondents and members of their class with significantly more serious charges for conduct which would result in no charge or a minor charge against a white person, and (f) depriving respondents of their right to give evidence concerning the security of members of their class. Each of these practices was alleged to be willful, malicious, and carried out with intent to deprive respondents and members of their class of the benefits of the county criminal justice system and to deter them from peacefully boycotting or otherwise engaging in protected First Amendment activity. Since there was asserted to be no adequate remedy at law, respondents requested that Berbling be enjoined from continuing these'practices, that he be required to “submit a monthly report to' [the District Court] concerning the nature, status and disposition of any complaint brought to him by plaintiffs or members of their class, or by white persons against plaintiffs or members of their class,” and that the District Court maintain continuing jurisdiction in this action.

The District Court dismissed that portion of the complaint requesting injunctive relief against Berbling, as well as against Investigator Shepherd, Magistrate O’Shea, and Judge Dorothy Spomer, for want of jurisdiction to grant any such remedy, which was perceived as directed against discretionary acts on the part of these elected state officials. The Court of Appeals reversed, holding that whatever quasi-judicial immunity from injunctive proscription it had previously recognized was appropriate for a prosecutor, was not absolute, and since respondents’ alternative remedies at law were thought to be inadequate, an injunctive remedy might be available if respondents could prove their claims of racial discrimination at trial.

The Court of Appeals rendered its decision on October 6, 1972. At the subsequent election in November of that year, petitioner W. C. Spomer was chosen by the voters to succeed Berbling as State’s Attorney for Alexander County, and Spomer took office on December 4. In the petition for certiorari filed with this Court on January 3, 1973, seeking review of the Court of Appeals’ approval of the possibility of some form of injunctive relief addressed to the State’s Attorney in the course of his prosecutorial role, petitioner Spomer relied upon Supreme Court Rule 48 (3), which provides that “[w]hen a public officer is a party to a proceeding here in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party.” Respondents did not oppose the substitution, and we granted certiorari and set the case for argument together with O’Shea v. Littleton, ante, p. 488. 411 U. S. 915 (1973).

It has become apparent, however, that there is nothing in the record upon which we may firmly base a conclusion that a concrete controversy between W. C. Spomer and the respondents is presented to this Court for resolution. No allegations in the complaint cited any conduct of W. C. Spomer as the basis for equitable or any other relief. Indeed, Spomer is not named as a defendant in the complaint at all, and, of course, he never appeared before either the District Court or the Court of Appeals. The injunctive relief requested against former State’s Attorney Berbling, moreover, is based upon an alleged practice of willful and malicious racial discrimination evidenced by enumerated instances in which Berbling favored white persons and disfavored Negroes. The wrongful conduct charged in the complaint is personal to Berbling, despite the fact that he was also sued in his then capacity as State’s Attorney. No charge is made in the complaint that the policy of the office of State’s Attorney is to follow the intentional practices alleged, apart from the allegation that Berbling, as the incumbent at the time, was then continuing the practices he had previously followed. Cf. Allen v. Regents of the University System of Georgia, 304 U. S. 439, 444-445 (1938). Nor have respondents ever attempted to substitute Spomer for Berbling after the Court of Appeals decision, so far as the record shows, or made any record allegations that Spomer intends to continue the asserted practices of Berbling of which they complain. The plain fact is that, on the record before us, respondents have never charged Spomer with anything and do not presently seek to enjoin him from doing anything. Under these circumstances, recognizing that there may no longer be a controversy between respondents and any Alexander County State’s Attorney concerning injunctive relief to be applied in futuro, see Two Guys v. McGinley, 366 U. S. 582, 588 (1961), we remand to the Court of Appeals for a determination, in the first instance, of whether the former dispute regarding the availability of injunctive relief against the State’s Attorney is now moot and whether respondents will want to, and should be permitted to, amend their complaint to include claims for relief against the petitioner. Cf. Land v. Dollar, 330 U. S. 731, 739 (1947).

The judgment of the Court of Appeals is vacated and the case is remanded for further consideration and proceedings consistent with this opinion.

It is so ordered.

       Specific examples of Berbling’s practice were alleged as follows:
      “(1) On March 28, 1969, defendant refused to permit James Wilson to file criminal charges against Charlie Sullivan, a white man, who pointed a gun at him as he (Wilson) attempted to move into the house next door to Charlie Sullivan on 22nd Street, in Cairo, Illinois. Sullivan threatened Wilson with the gun and told him to move the truck containing household furnishings and leave the area, thereby attempting to prevent James Wilson from holding property.
      “(2) On or about March 29, 1969, defendant refused to permit James Wilson to file criminal charges against Charlie Sullivan who fired shots from a gun around James Wilson’s home to intimidate his family in order to prevent James Wilson from holding property.
      “(3) In January, 1970, defendant refused to permit Robert Martin to file charges against Charlie Sullivan, who tried to run him down in a truck while peacefully marching in exercise of his First Amendment rights.
      “(4) In June, 1970, defendant refused to permit Ezell Littleton to file charges against a white man who without cause or justification assaulted and battered him.
      “(5) In June, 1970, defendant refused to permit Rev. Manker Harris to file charges against two white policemen of the City of Cairo for attempted murder and/or malicious prosecution.
      “(6) On August 10, 1970, defendant Berbling, through a subordinate, defendant Earl Shepherd, refused to permit plaintiff Hazel James to file criminal charges against Raymond Hurst, a white man, who had kicked plaintiff James in the stomach while she was peacefully demonstrating against the racially discriminatory practices of merchants and of public officials of the City of Cairo.
      “(7) In May, 1969, Plaintiff Ewing and eight others could have [brought] and desired to bring criminal charges against a white man who threatened them with a shotgun, but did not because they knew of defendant’s practice of refusing to take complaints and were discouraged from making useless gestures.”

       Cited in support of this allegation was an incident when “Morris Garrett (a 13 year old boy), on August 8, 1970, during a demonstration against the racially discriminatory practices of merchants and public officials of the City of Cairo, was struck by one Tom Madra. A complaint was filed which was presented to the grand jury. Morris Garrett appeared before the grand jury. Defendant Berbling, rather than question him regarding the incident, asked him such questions as ‘did you get paid for picketing?’ A no-true bill was returned by the grand jury.”

       Two episodes of this type were described:
      “(1) On August 13, 1970, Cheryl Garrett and Y-vonda Taylor, ages 18 and 16 respectively, were shot at by one Jack Guetterman, Jr. Rev. Walter Garrett and Ezell Littleton, following a telephone call from the young girls, went to the scene of the shooting. Shortly thereafter police officers arrived. While Rev. Walter Garrett was discussing the situation with one police officer, one Jack Guetterman, ' Sr. struck Rev. Garrett in the face, causing him to fall to the ground. A complaint was filed by Rev. Walter Garrett respecting this incident. Defendant Berbling presented the complaint to the grand jury, but Rev. Garrett was not interrogated at all respecting the incident. Ezell Littleton, who witnessed the assault, was not called to testify.
      “(2) On or about August 8, 1970, Curtis Johnson was struck by one A1 Moss while demonstrating against the racially discriminatory practices of merchants and public officials of the City of Cairo. A complaint was filed, which was presented to the grand jury. Curtis Johnson, however, was not interrogated by defendant Berb-ling respecting the incident.”

       Thus, respondents alleged that Berbling sought the “dropping of a criminal charge arising out of a complaint filed by Frank Hollis, a black person, against Tom Madra, a white person, in return for which [Berbling] would drop pending criminal charges against several of the [respondents].”

       Damages were also sought against Berbling for these practices and for an alleged conspiracy with his investigator, Shepherd, to refuse to prosecute those who threatened respondents’ safety and to prevent them from giving evidence against whites concerning acts threatening their personal safety. As to the latter, the sixth example in n. 1, supra, was reiterated. The Court of Appeals held that “insofar as defendant Berbling was acting within his prosecu-torial function he has a quasi-judicial immunity from suit for damages under the Civil Rights Acts,” 468 F. 2d 389, 410, and remanded to allow respondents to amend the complaint and to have the District Court determine in the first instance whether some of the acts then alleged would be sufficiently removed from quasi-judicial activity “to warrant removing the cloak of immunity from them.” Id., at 410-411. Berbling’s petition for certiorari questioning this aspect of the Court of Appeals’ ruling was not timely filed in this Court and has been denied. No. 72-1107, post, p. 1143. No question concerning damage relief is involved in the case presently before us.

       The scope of any injunction which might be found warranted was not finally established or restricted. It was suggested that an initial decree might require “only periodic reports of various types of aggregate data on actions on bail and sentencing and dispositions of complaints,” and confidence was expressed that the District Court would be able to establish further guides as required and, if necessary, to consider individual decisions. 468 F. 2d, at 415.

       State’s Attorney W. C. Spomer should not be confused with Judge Dorothy Spomer, a petitioner in O’Shea v. Littleton, ante, p. 488.

       In their brief in opposition to the petition, p. 6, respondents stated that they “seek only equitable relief against petitioner W. C. Spomer. Because the amended complaint asks relief against Berbling in his individual as well as his official capacity, he remains a party in interest in this action.” Of course, Spomer, not Berbling, filed for review of the -Court of Appeals’ decision, respecting injunctive relief, and Berbling is not before the Court in this case. Nor did respondents ever seek relief of any kind against Spomer by their complaint.

       This Court's Rule 48(3), governing automatic substitution of successor public officers when the predecessor was a party “in his official capacity,” is based upon Fed. Rule Civ. Proc. 25 (d), as amended in 1961. Prior to the 1961 amendment, substitution was not automatic. The history and application of former and present Rule 25 (d) are sketched in 3B J. Moore, Federal Practice ¶ 25.09 [1]— [3] (2d ed. 1969). Of particular relevance is- the Advisory Committee Note on the 1961 “automatic substitution” amendment to Rule 25 (d), which suggests that “[i]n general it will apply whenever effective relief would call for corrective behavior by the one then having official status and power, rather than one who has lost that status and power through ceasing to hold office.” See id., ¶ 25.09 [3], at 25-403, 25-404. The question of whether corrective behavior is thought to be necessary is, of course, dependent on whether the dispute with the predecessor continues with the successor.

       Despite the statement respondents made in their brief in opposition to the petition for certiorari, n. 8, supra, the record does not contain any indication that respondents have ever sought in-junctive relief against Spomer in any proceedings in the District-Court or the Court of Appeals. Nor would they have had reason to do so in the absence of knowledge that he would succeed Berbling. While Spomer did substitute himself in place of his predecessor, and his counsel made the somewhat extraordinary statement at oral argument that “there is nothing in this record, nor will there be on the part of my client, to indicate that he would change the policies which are alleged to have been exercised by his predecessor,” Tr. of Oral Arg. 7, to determine whether respondents have a live controversy with Spomer, we must look to the charges they press. Indeed, counsel for respondents observed at oral argument of this case that “in order for us to proceed against Mr. Spomer, it would be necessary for us to investigate the facts to see that the concession apparently made by the State’s Attorney is true and amend our complaint.” Id., at 19. This merely serves to underscore our concern that we are being asked to render an opinion on the merits of what is now and may continue to be a hypothetical or abstract dispute. See Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240-241 (1937); United States v. Fruehauf, 365 U. S. 146, 157 (1961); North Carolina v. Rice, 404 U. S. 244, 245-246 (1971).


author: Mr. Chief Justice Mr. Justice Marshall, Mr. Justice Blackmun,

text:
    O’BRIEN et al. v. SKINNER, SHERIFF, et al.
    No. 72-1058.
    Argued November 6, 1973
    Decided January 16, 1974
    Burger, C. J., delivered the opinion of the Court, in which Douglas, BrenNan, Stewart, White, Marshall, and Powell, JJ., joined. Marshall, J., filed a concurring opinion, in which Douglas and BreNNAN, JJ., joined, post, p. 531. BlackmuN, J., filed a dissenting opinion, in which RehNQUist, J., joined, post, p. 535.

      William D. Eggers argued the cause for appellants. With him on the brief were David N. Kunkel, Ruth B. Rosenberg, Burt Neuborne, and Melvin L. Wulf.

      Michael K. Consedine argued the cause and filed a brief for appellees.

        Louis J. Lejkowitz, pro se, Attorney General of New York, Ruth Kessler T.och, Solicitor General, and William J. Kogan, Assistant Attorney General, filed a brief for the Attorney General of New York as amicus curiae urging affirmance.

   Mr. Chief Justice

Burger delivered the opinion of the Court.

This is an appeal from the judgment of the Court of Appeals of New York taken by 72 persons who were at the time of the trial of the original action, detained in confinement. Some are simply detained awaiting trial, others are confined pursuant to misdemeanor convictions ; none is subject to any voting disability under the laws of New York.

The Court of Appeals of New York, by divided vote, held that failure of the State to provide appellants with any means of registering and voting was not a violation of the New York statutes and not a denial of any federal or state constitutional right.

Before the November 1972 general elections in New York, the appellants applied to the authorities of Monroe County, including the Board of Elections, to establish a mobile voters registration unit in the county jail in compliance with a mobile registration procedure which had been employed in some county jails in New York State. This request was denied and appellants then requested that they be either transported to polling places under appropriate restrictions or, in the alternative, that they be permitted to register and vote under New York’s absentee voting provisions which, essentially, provide that qualified voters are allowed to register and vote by absentee measures if they are unable to appear personally because of illness or physical disability, or because of their “duties,- occupation or business.” The statutes also allow absentee voting, but not registration, if the voter is away from his residence on election day because he is confined in a veterans’ hospital or is away on vacation. The election authorities denied the request, taking the position that they were under no obligation to permit the appellants to register or to vote in person and that inmates did not qualify for absentee voting under the provisions of the New York statutes.

The Supreme Court for Monroe County in New York considered the claims presented by the appellants and treated them as a proceeding in the nature of mandamus. The conclusion reached by that court was that the legislature of New York had provided for absentee registration and voting by any voter unable to appear personally because of confinement in an institution (other than a mental institution). The court concluded that the election laws should be construed to apply to an inmate confined in jail and not otherwise disenfranchised since this constituted a “physical disability” in the sense that he was physically disabled from leaving his confinement to go to the polls to vote, and that the statute therefore entitled such persons to vote by absentee ballot. However, the court noted that there was no showing that any of the persons claiming these rights had timely filed all the necessary forms but that this could yet be accomplished in time for voting by absentee ballot in November 1972. The Appellate Division of the Fourth Judicial Department of the Supreme Court of New York on review gave a similar construction to the election laws, stating:

“We believe that petitioners, being so confined, are physically disabled from voting and should be permitted to do so by casting absentee ballots.” 40 App. Div. 2d 942, 337 N. Y. S. 2d 700 (1972).

On appeal to the New York Court of Appeals, however, these holdings were reversed, that court stating:

“The right to vote does not protect or insure against those circumstances which render voting impracticable. The fact of incarceration imposes many other disabilities, some private, others public, of which voting is only one. Under the circumstances, and in view of the Legislature’s failure to extend these absentee provisions to others similarly disadvantaged, it hardly seems plausible that petitioners’ right to vote has been arbitrarily denied them. It is enough that these handicaps, then, are functions of attendant impracticalities or contingencies, not legal design.” 31 N. Y. 2d 317, 320-321, 291 N. E. 2d 134, 136-137.

Judge Fuld dissented, being of the view that §§ 117-a and 153-a of the Election Law of New York should be read in the manner announced by the Appellate Division. Judge Burke, joining Judge Fuld, agreed, stating additionally that any construction of the election law precluding appellants from exercising their right to register and vote violated the equal protection guarantees of the Fourteenth Amendment.

It is important to note at the outset that the New York election laws here in question do not raise any question of disenfranchisement of a person because of conviction for criminal conduct. As we noted earlier, these appellants are not disabled from voting except by reason of not being able physically — in the very literal sense — -to go to the polls on election day or to make the appropriate registration in advance by mail. The New York statutes are silent concerning registration or voting facilities in jails and penal institutions, except as they provide for absentee balloting. If a New York resident eligible to vote is confined in a county jail in a county in which he does not reside, paradoxically, he may secure an absentee ballot and vote and he may also register by mail, presumably because he is “unavoidably absent from the county of his residence.” N. Y. Election Law § 117 (1)(b) (1964).

Thus, under the New York statutes, two citizens awaiting trial — or even awaiting a decision whether they are to be charged — sitting side by side in the same cell, may receive different treatment as to voting rights. As we have noted, if the citizen is confined in the county of his legal residence he cannot vote by absentee ballot as can his cellmate whose residence is in the adjoining county. Although neither is under any legal bar to voting, one of them can vote by absentee ballot and the other cannot.

This Court had occasion to examine claims similar to those presented here in McDonald v. Board of Election Comm’rs, 394 U. S. 802 (1969). There a state statute provided for absentee voting by persons “medically incapacitated” and for pretrial detainees who were incarcerated outside their county of residence. Unlike the present case, however, in McDonald “there [was] nothing in the record to show that appellants [were] in fact absolutely prohibited from voting by the State . . . ,” id., at 808 n. 7, since there was the possibility that the State might furnish some other alternative means of voting. Id., at 808. Essentially the Court’s disposition of the claims in McDonald rested on failure of proof.

More recently in Goosby v. Osser, 409 U. S. 512 (1973), the Court again considered the problem of inmate voting and concluded that, unlike the voting restrictions in the McDonald case, the statute there in question was an absolute bar to voting because of a specific provision that “persons confined in a penal institution” were not permitted to vote by absentee ballot. It is clear, therefore, that the appellants here, like the petitioners in Ooosby, bring themselves within the precise fact structure that the McDonald holding foreshadowed.

New York’s election statutes, as construed by its highest court, discriminate between categories of qualified voters in a way that, as applied to pretrial detainees and misdemeanants, is wholly arbitrary. As we have noted, New York extends absentee registration privileges to eligible citizens who are unable to appear personally because of “illness or physical disability,” and to citizens required to be outside their counties of residence on normal registration days because of their “duties, occupation or business.” In addition, New York extends absentee voting privileges to those voters unable to get to the polls because of illness or physical disability, to those who are inmates of veterans’ bureau hospitals, and to those who are absent from their home county on election day either because of “duties, occupation or business” or vacation. Indeed, those held in jail awaiting trial in a county other than their residence are also permitted to register by mail and vote by absentee ballot. Yet, persons confined for the same reason in the county of their residence are completely denied the ballot. The New York statutes, as construed, operate as a restriction which is “so severe as itself to constitute an unconstitutionally onerous burden on the . . . exercise of the franchise.” Rosario v. Rockefeller, 410 U. S. 752, 760 (1973). Appellants and others similarly situated are, as we have notéd, under no legal disability impeding their legal right to register or to vote; they are simply not allowed to use the absentee ballot and are denied any alternative means of casting their vote although they are legally qualified to vote.

The construction given the New York, statutes by its trial court and the Appellate Division may well have been a reasonable interpretation of New York law, but the highest court of the State has concluded otherwise and it is not our function to construe a state statute contrary to the construction given it by the highest court of a State. We have no choice, therefore, but to hold that, as construed, the New York statutes deny appellants the equal protection of the laws guaranteed by the Fourteenth Amendment.

Reversed and remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Marshall,

with whom Mr. Justice Douglas and Mr. Justice Brennan join, concurring.

While I join the opinion of the Court, my analysis of the issues presented here requires further elaboration.

I fully agree with the Court’s holding that the Court of Appeals’ reliance on our decision in McDonald v. Board of Election Comm’rs, 394 U. S. 802 (1969), was misplaced. Although we rejected in McDonald a claim similar to that presented by appellants here, the crux of our decision was our conclusion that the rational-basis test was the proper standard-to apply in evaluating the prisoners’ equal protection claims. We relied heavily in McDonald on the fact that there was no evidence that the State made it impossible for the appellants to exercise their right to vote. As the Court noted,

“[T]he record is barren of any indication that the State might not; for instance, possibly furnish the jails with special polling booths or facilities on election day, or provide guarded transportation to the polls themselves for certain inmates, or entertain motions for temporary reductions in bail to allow some inmates to get to the polls on their own.” Id., at 808 n. 6.

The Court therefore characterized the appellants’ claim by saying “[i]t is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots.” Id., at 807. Because of the relatively trivial inconvenience encountered by a voter unable to vote by absentee ballot when other means of exercising the right to vote are available, the Court properly rejected appellants’ contention that strict scrutiny of the statutory classifications was required.

In this case, however, the New York Court of Appeals has made clear that the fundamental premises on which McDonald was based are absent. See Goosby v. Osser, 409 U. S. 512, 518-522 (1973). The New York court “reject[ed] out of hand” any alternative which would permit appellants to vote without using absentee ballots. In this posture, it can no longer be contended that this case involves “merely a claimed right to absentee ballots” and “not the right to vote,” or that the challenged statutes “have no direct impact on [appellants’] right to vote,” as the Court of Appeals, relying on McDonald, argued, 31 N. Y. 2d 317, 320, 291 N. E. 2d 134, 136; such statements, in the context of this case, fly in the face of reality. Nor can it be contended that denial of absentee ballots to appellants does not deprive them of their right to vote any more than it deprives others who may “similarly” find it “impracticable” to get to the polls on election day, see id., at 320-321, 291 N. E. 2d, at 136-137; here, it is the State which is both physically preventing appellants from going to the polls and denying them alternative means of casting their ballots. Denial of absentee registration and absentee ballots is effectively an absolute denial of the franchise to these appellants.

It is well settled that “if a challenged statute grants the right to vote to some citizens and denies the franchise to others, 'the Court must determine whether the exclusions are necessary to promote a compelling state interest.'” Dunn v. Blumstein, 405 U. S. 330, 337 (1972), quoting Kramer v. Union Free School District, 395 U. S. 621, 627 (1969); see also Cipriano v. City of Houma, 395 U. S. 701, 704 (1969); City of Phoenix v. Kolodziejski, 399 U. S. 204, 205, 209 (1970). It is this standard of review which must be employed here.

New York law provides for absentee registration and voting by numerous categories of voters who may be unable to appear in person at the polls. New York permits absentee registration and voting by, inter alia, those who are unable to appear personally because of illness or physical disability, or those whose duties, occupation, or business takes them out of their county of residence. Absentee ballots are even available to those who are on vacation outside the county on election day. Significantly, it is also conceded that pretrial detainees and convicted misdemeanants residing in Monroe County but confined outside the county may register and vote by mail.

In light of these extensive provisions for participation in the electoral process through the mail by others, New York’s exclusion of pretrial detainees and convicted mis-demeanants confined in the county of their residence cannot withstand analysis. The only basis even suggested for this discrimination is the possibility recognized by the Court in McDonald “that without the protection of the voting booth, local officials might be too tempted to try to influence the local vote of in-county inmates.” 394 U. S., at 810. Though protection of the integrity of the ballot box is surely a legitimate state concern, I frankly find something a bit disturbing about this approach to the problem. It is hard to conceive how the State can possibly justify denying any person his right to vote on the ground that his vote might afford a state official the opportunity to abuse his position of authority. If New York truly has so little confidence in the integrity of its state officers, the time has come for the State to adopt stringent measures to prevent official misconduct, not to further penalize its citizens by depriving them of their right to vote. There are surely less burdensome means to protect inmate voters against attempts to influence their votes — the alternatives suggested by the Court in McDonald, for example.

I thus have little difficulty in concluding that the asserted state interest is insufficient to justify the statutes’ discrimination against pretrial detainees and convicted misdemeanants under the compelling-state-interest test. I think it is clear that the State’s denial of all opportunity for appellants to register and vote deprives them of the right to vote on an equal basis with other citizens guaranteed under the Equal Protection Clause.

Mr. Justice Blackmun,

with whom Mr. Justice Rehnquist joins, dissenting.

Once again, we are confronted with a claim, fashionable of late, that a state statute which, because of its positive provisions, Rosario v. Rockefeller, 410 U. S. 752 (1973); Kusper v. Pontikes, ante, p. 51; see Goosby v. Osser, 409 U. S. 512 (1973), or because of its failure to provide particular persons particular relief, as here, is an unconstitutional deprivation of the right to vote. And once again the Court strikes down the state statutes.

Because I think the Court is unnecessarily and unwisely elevating and projecting constitutional pronouncement into an area — and into distant and obscure corners of that area — that, for me, should be a domain reserved for the State’s own housekeeping, I dissent.

I join, and with some emphasis, the Court’s observations and those of Mr. Justice Marshall in his concurring opinion, to the effect that the much-amended New York statutes here under challenge cut unevenly. Surely, no one would claim that they are now a model of the draftsman’s art. The absentee-voting privilege appears to be available for the voter who is an inmate of a veterans’ bureau hospital, N. Y. Election Law § 117 (1964), but not, seemingly, due to the statute’s silence (unless he can otherwise qualify “because of illness or physical disability,” id., § 117-a), for the voter who is just as nonambulatory, and just as confined, in some municipal or denominational institution. It is available, under § 117, for the voter, “unavoidably absent” on business, and even for the voter “absent” on vacation, but not, seemingly, for the voter who is absent attending a wedding or visiting a seriously ill relative in the next State. And it is concededly available for the occupant of the county jail who resides in another New York county but not for the occupant who resides in the local county.

These are irritating and less-than-thoughtful sub silentio distinctions, and the temptation to eliminate them by striking down the statutes is strong and appealing. I am not convinced, however, that we should be so ready to interfere. New York’s present statutory structure has developed by successive remedial amendments, each designed to correct a then-apparent gap. The State, after all, as a matter of constitutional requirement, need not have provided for any absentee registration or absentee voting. And .

“a legislature traditionally has been allowed to take reform ‘one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,’ Williamson v. Lee Optical of Oklahoma, Inc., 348 U. S. 483, 489 (1955); and a legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked. . . .” McDonald v. Board of Election Comm’rs, 394 U. S. 802, 809 (1969).

See also Jefferson v. Hackney, 406 U. S. 535, 546 (1972).

Furthermore, this fallout from the New York statutes is minor and collateral and not of great, let alone constitutional, import. There is bound to be a dividing line somewhere, intended or unintended (as I suspect this was). If that dividing line operates to deprive a person of what he feels is his right to vote, his reaction will be critical. Whether he has a constitutional claim, however, is something else again. Line drawing is necessary, as the Court conceded in Dunn v. Blumstein, 405 U. S. 330, 348 (1972), and by the very process of line drawing, someone will be left out or treated differently.

I feel, therefore, that any unequal effect of the New York statutes is largely incidental and wholly a function of the State’s failure to extend its remedial provisions a little further. These appellants are affected, to be sure, but they are affected because it was their misfortune to be detainees or convicted misdemeanants serving their sentences in the county jail on the critical day. The misdemeanants were in jail through their own doing, just as the petitioners in Rosario v. Rockefeller, supra, found themselves unable to vote because of their failure to meet an enrollment deadline. The plight of detainees elicits concern, of course, for a detainee may not be guilty of the offense with which he is charged. Yet the statutes’ effect upon him, although unfortunate, produces a situation no more critical than the situation of the voter, just as unfortunate, who on election day is away attending the funeral of a loved one in a distant State. These are inequalities, but they are the incidental inequalities of life, and I do not regard them as unconstitutional.

I would refrain from continued tampering and interference with the details of state election laws. If details are deserving of cure, the State’s legislature, not this Court, ought to be the curative agent.

       31 N. Y. 2d 317, 291 N. E. 2d 134 (1972).

       At the time this permit was sought, N. Y. Election Law § 153-a (Supp. 1971-1972) provided, in pertinent part:
      “1. A voter residing in an election district in which the registration is required to be personal or in an election district in a county or city in which permanent personal registration is in effect, and who is unable to appear personally for registration because he is confined at home or in a hospital or institution, other than a mental institution because of illness or physical disability or because his duties, occupation or business require him to be outside the county of residence, or if a resident of the city of New York, outside said city, on such days, may be registered in the manner provided by this section. A voter residing in an election district in which personal registration is not required may file an application for absentee registration in accordance with the provisions of this section and also may be registered in the manner otherwise provided by law.”
      Effective January 1, 1973, § 153-a was repealed, and replaced by N. Y. Election Law §153 (Supp. 1972-1973), which contains substantially identical provisions.
      N. Y. Election Law § 117-a (1964) provides, in pertinent part:
      “1. A qualified voter, who, on the occurrence of any general election, may be unable to appear personally at the polling place of the election district in which he is a qualified voter because of illness or physical disability, may also vote as an absentee voter under this chapter . . . .”
      N. Y. Election Law § 117 (1964) provides, in pertinent part:
      “1. A qualified voter, who, on the occurrence of any general election, may be—
      “a. unavoidably absent from his residence because he is an inmate of a veterans’ bureau hospital, or
      “b. unavoidably absent from the county of his residence, or, if a resident of the city of New York from said city, because his duties, occupation or business require him to be elsewhere on the day of election, or
      “c. absent from the county of his residence, or, if a resident of the city of New York from said city, because he is on vacation elsewhere on the day of election,
      “may vote as an absentee voter under this chapter.”

       At oral argument, counsel for the appellees conceded that Monroe County election officials have interpreted the portions of New York Election Laws §§ 117 and 153-a that extend absentee voting and registration privileges to those whose “duties, occupation or business” requires absence from their home counties as including convicted misdemeanants and pretrial detainees incarcerated outside Monroe County.

       The Court of Appeals stated:
      “We reject out of hand any scheme which would commit respondents to a policy of transporting such detainees to public polling places; would assign them the responsibility of providing special voting facilities under such conditions [or] would threaten like hazards embraced by such schema.” 31 N. Y. 2d 317, 319, 291 N. E. 2d 134, 135 (1972).
      Presumably this includes a flat rejection of the possibility of temporary reductions in bail to allow detainees to vote suggested by the Court in McDonald.

       As the Court emphasizes, New York law does not disenfranchise either convicted misdemeanants or persons being held for trial on criminal charges. Indeed, it appears that the New York Constitution does not permit such disenfranchisement. Article II, § 1, of the Constitution provides that “[e]very citizen shall be entitled to vote” and Art. II, § 3, excludes only those “convicted of bribery or of any infamous crime.” We therefore need not confront in this case the very substantial constitutional problems presented if a State did seek to exclude these classes from the franchise.