U.S. Supreme Court GOLDEN v. ZWICKLER, 394 U.S. 103 (1969) 394 U.S. 103

GOLDEN, ACTING DISTRICT ATTORNEY OF KINGS COUNTY v. ZWICKLER. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK. No. 370. Argued January 16, 1969. Decided March 4, 1969.

Following reversal on state law grounds of appellee's conviction of violating a New York statute by distributing anonymous handbills in connection with the 1964 congressional election, appellee in 1966 sought a declaratory judgment in the District Court that the statute was unconstitutional. Appellee alleged that he intended to distribute the 1964 handbill and "similar anonymous leaflets" in connection with the forthcoming 1966 election (when, it was alleged, the Congressman would stand for re-election), and in subsequent elections. The District Court abstained from passing on appellee's claim for a declaratory judgment. This Court on appeal held that such abstention was error and remanded the case for resolution of the declaratory judgment issue. Zwickler v. Koota, 389 U.S. 241. The Court held that on the remand appellee would have to "establish the elements governing the issuance of a declaratory judgment," noting as relevant to that question that the Congressman who had been the target of appellee's handbills had meanwhile been elected to the Supreme Court of New York. On remand, the District Court, without hearing evidence on the existence of the elements governing the issuance of a declaratory judgment, held that the essential elements to such relief existed "[w]hen this action was initiated" and that it was immaterial that the Congressman would not be a candidate for re-election, and concluded that the statute impinged on appellee's freedom of speech by deterring him from again distributing anonymous handbills. Held:

[Page 394 U.S. 103, 104]

would not likely be a candidate again, the controversy here lacked "sufficient immediacy and reality" to warrant issuance of a declaratory judgment. Pp. 109-110.

290 F. Supp. 244, reversed and remanded.

Samuel A. Hirshowitz, First Assistant Attorney General of New York, argued the cause for appellant. With him on the brief were Louis J. Lefkowitz, Attorney General, and Brenda Soloff, Assistant Attorney General.

Emanuel Redfield argued the cause and filed a brief for appellee.

Joseph B. Robison and Beverly Coleman filed a brief for the American Jewish Congress, as amicus curiae, urging affirmance.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

This case was here before as Zwickler v. Koota, 389 U.S. 241 (1967). We there held that the three-judge District Court for the Eastern District of New York erred in abstaining from deciding whether Zwickler, appellee in the instant case, was entitled to a declaratory judgment respecting the constitutionality of New York Penal Law 781-b, now New York Election Law 457, and we remanded to the District Court for a determination of that question. Section 781-b made it a crime to distribute anonymous literature in connection with an election campaign.[Footnote 1] Zwickler had been convicted of violating this provision by distributing

[Page 394 U.S. 103, 105]

anonymous handbills in connection with the 1964 congressional election. That conviction was reversed, on state law grounds, by the New York Supreme Court, Appellate Term. The New York Court of Appeals affirmed in 1965 and filed a memorandum which stated that constitutional questions had not been reached. 16 N. Y. 2d 1069, 213 N. E. 2d 467. A few months thereafter, on April 22, 1966, Zwickler brought this suit.

The complaint sets forth the facts regarding the prosecution and its termination. A Congressman standing for re-election in 1964 was criticized in the anonymous handbill for opposing two amendments to the 1964 Foreign Aid bill.[Footnote 2] The complaint alleged that the

[Page 394 U.S. 103, 106]

Congressman "will become a candidate in 1966 for reelection . . . and has been a political figure and public official for many years," and that Zwickler "desires and intends to distribute . . . at the place where he had previously done so and at various places in said [Kings] County, the anonymous leaflet herein described . . . and similar anonymous leaflets . . . at any time during the election campaign of 1966 and in subsequent election campaigns or in connection with any election of party officials, nomination for public office and party position that may occur subsequent to said election campaign of 1966."

It was disclosed on the argument of Zwickler v. Koota in this Court that the Congressman had left the House of Representatives for a place on the Supreme Court of New York. We deemed this development relevant to the question whether the prerequisites for the issuance of a declaratory judgment were present. We noted, however, that, probably because of the decision to abstain, the parties had not addressed themselves to, and the District Court had not adjudicated, that question. 389 U.S., at 244, n. 3. Therefore, we directed that on the remand "appellant [Zwickler] must establish the elements governing the issuance of a declaratory

[Page 394 U.S. 103, 108]

political environment persuade us to the justice of his plea." 290 F. Supp. 244, 248, 249 (1968).

We noted probable jurisdiction sub nom. Koota v. Zwickler, 393 U.S. 818 (1968). We reverse.

The District Court erred in holding that Zwickler was entitled to declaratory relief if the elements essential to that relief existed "[w]hen this action was initiated." The proper inquiry was whether a "controversy" requisite to relief under the Declaratory Judgment Act existed at the time of the hearing on the remand.[Footnote 3] We now undertake that inquiry.

"[T]he federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, `concrete legal issues, presented in actual cases, not abstractions,' are requisite. This is as true of declaratory judgments as any other field." United Public Workers of America v. Mitchell, 330 U.S. 75, 89 (1947). "The difference between an abstract question and a `controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. 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).

[Page 394 U.S. 103, 109]

We think that under all the circumstances of the case the fact that it was most unlikely that the Congressman would again be a candidate for Congress precluded a finding that there was "sufficient immediacy and reality" here.[Footnote 4] The allegations of the complaint focus upon the then forthcoming 1966 election when, it was alleged, the Congressman would again stand for re-election. The anonymous handbills which the complaint identified as to be distributed in the 1966 and subsequent elections were the 1964 handbill and "similar anonymous leaflets." On the record therefore the only supportable conclusion was that Zwickler's sole concern was literature relating to the Congressman and his record.[Footnote 5] Since the New York statute's prohibition of anonymous handbills applies only to handbills directly pertaining to election campaigns, and the prospect was neither real nor immediate of a campaign involving the Congressman, it was wholly conjectural that another occasion might arise when Zwickler might be prosecuted for distributing the handbills referred to in the complaint. His assertion in his brief that the former Congressman can be "a candidate for Congress again" is hardly a substitute for evidence that this is a prospect of "immediacy and reality." Thus the record is in sharp contrast to that in Evers v. Dwyer, (1958), relied upon by the District Court.

It was not enough to say, as did the District Court, that nevertheless Zwickler has a "further and far broader right to a general adjudication of unconstitutionality . . . [in] [h]is own interest as well as that of others

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