The opinion of the court was delivered by: SHERIDAN
Plaintiff, Jo-Ann Bykofsky, on her own behalf and on the behalf of her son, a twelve year old minor, Shaw Bykofsky, as his guardian, filed this action seeking declaratory and preliminary and permanent injunctive relief against the defendants -- the Borough of Middletown, Harry Judy, the Mayor of Middletown, Steven Mrakovich, the Chief of Police of Middletown and George Merkel, Middletown Borough Manager. The action is brought under the Civil Rights Act, 42 U.S.C.A. § 1983, and the Federal Declaratory Judgment Act, 28 U.S.C.A. §§ 2201, 2202, and federal jurisdiction is properly predicated on 28 U.S.C.A. § 1343.
Specifically, plaintiffs request the court to declare unconstitutional and enjoin the enforcement of a criminal ordinance of the Borough of Middletown which imposes a curfew on children under the age of sixteen.
The ordinance prohibits any child under sixteen years of age from being on or upon the public streets, highways, alleys, parks, or other public places of the borough after 10:30 P.M. unless (1) such child is accompanied by his parent, guardian, legal custodian, or is accompanied by a responsible person of good repute over twenty-one years of age; or (2) such child is in the performance of an errand or duty directed by his parent, guardian, or legal custodian; or (3) such child's legal, recognized employment makes it necessary for him to be in or upon the public streets or public places after the hour of 10:30 P.M., in which case such child shall carry a certified card of employment signed by the Burgess. The ordinance further provides that the parent, guardian, or legal custodian shall not allow or permit a child under sixteen years of age to go or be upon any of the public streets, highways, alleys, parks, or other public places of the borough after 10:30 P.M., except as noted above or "unless reasonable necessity can be shown therefor." With respect to the child, the ordinance provides no penalty for a curfew violation, except that a policeman upon finding a child who is violating the ordinance, shall take his name and the name and address of his parent, guardian or legal custodian, send the child home, and file a written report with the Middletown Chief of Police within 24 hours, whereupon the Police Chief shall send to the child's parents, guardians, or legal custodians a written notice of the violation of the ordinance together with notice that unless the terms of the ordinance are complied with, the penalty provided for in the ordinance will be imposed on them. The ordinance states that a parent, guardian, or legal custodian of a child who subsequently violates the ordinance, after having had notice of the child's first violation, shall upon conviction be sentenced to pay a fine of not more than ten dollars and costs of prosecution, and in default of the payment of the fine and costs shall be imprisoned for a period not exceeding ten days. This is the only criminal penalty imposed by the ordinance, a penalty which falls upon the parent, not the child. The ordinance, as previously noted, does, however, give the Middletown police the power and authority to remove and thereby keep off the public streets after 10:30 P.M. children under the age of sixteen.
A hearing was held on January 24, 1975, solely on plaintiffs' request for a preliminary injunction. Defendants at that time filed a motion to dismiss the complaint and action on the ground the plaintiffs lack standing and on the ground this court should abstain from adjudicating the constitutionality of the borough's ordinance. A trial on the merits with respect to the permanent relief requested will be held later. Thus the court presently is concerned only with the request for a preliminary injunction.
Initially it should be noted that one of the defendants, the Borough of Middletown, is not a "person" within the meaning of 42 U.S.C.A § 1983 and therefore is not subject to suit under the Civil Rights Act. City of Kenosha v. Bruno, 1973, 412 U.S. 507, 93 S. Ct. 2222, 37 L. Ed. 2d 109; Monroe v. Pape, 1961, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492; United States ex rel. Gittlemacker v. County of Philadelphia, 3 Cir. 1969, 413 F.2d 84, cert. denied, 1970, 396 U.S. 1046, 90 S. Ct. 696, 24 L. Ed. 2d 691. Therefore, no relief will be granted with respect to this defendant.
Defendants assert that since the ordinance has never been enforced against either plaintiff, they lack standing to challenge the constitutionality of the ordinance. Defendants rely on Laird v. Tatum, 1972, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154, for this proposition. Their reliance is misplaced.
The Laird case reaffirmed the "established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action . . .." Ex parte Levitt, 1937, 302 U.S. 633, 634, 58 S. Ct. 1, 82 L. Ed. 493. In Laird plaintiffs had claimed that their first amendment rights were chilled and hence violated by the mere existence of the Army's domestic data-gathering system. The alleged chilling -- i.e., deterrent -- effect arose merely from the individual plaintiff's knowledge that the Army was engaged in certain activities and their perception of the activities as inherently dangerous and inappropriate to the Army's role under our form of government, and from the concomitant fear that, armed with the fruits of these activities, the Army might in the future take some other and additional action detrimental to the individual plaintiffs. The Court held that such allegations of a subjective "chill" or deterrent effect were an inadequate substitute for a claim of specific objective harm or a threat of specific future harm. 408 U.S. at 13-14, 92 S. Ct. 2318, 33 L. Ed. 2d 154.
Unlike in Laird, the plaintiffs in the instant case are presently subject to an ordinance which, according to the testimony of defendant Mrakovich, the Chief of Police of Middletown, is always enforced and was in fact enforced 16 times in 1973 and 11 times in 1974.
Thus, in contrast with the claims asserted in the Laird case, the deterrent effect complained of here is one which is grounded in a realistic fear of prosecution if the plaintiffs undertake the conduct proscribed by the ordinance. In Poe v. Ullman, 1961, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989, the Supreme Court held that the case presented no real controversy justifying the adjudication of a constitutional issue and hence the plaintiff lacked standing because, with a single exception, no one had ever been prosecuted under the challenged statute, which had been enacted in 1879. In contrast, the ordinance in the present case is not moribund and has been and continues to be enforced. Thus, the present case presents a controversy of sufficient immediacy and reality, Golden v. Zwickler, 1969, 394 U.S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113; O'Shea v. Littleton, 1973, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674, to present a justiciable controversy. The criminal ordinance applies to and will be invoked against the plaintiffs if the minor plaintiff, age 12, is present upon the public streets, highways, alleys, parks, or other public places of Middletown after 10:30 P.M. The plaintiffs, therefore, assert a sufficiently direct threat of personal detriment.
The plaintiffs having alleged that a criminal ordinance prohibits and deters constitutionally protected conduct, and the alleged threat of prosecution not being imaginary or speculative, since it is clear that the conduct plaintiffs wish to undertake falls within the proscription of the ordinance, which is vigorously enforced, the case presents a justiciable controversy under Article III of the Constitution which the plaintiffs have standing to litigate. Steffel v. Thompson, 1974, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (Court recognized right of citizen, who had twice been warned to stop handbilling on a sidewalk of a shopping center and threatened with arrest by police if he failed to do so for violating the state's criminal trespass law, though never so arrested, had standing to challenge the constitutionality of the application to him of that statute); Doe v. Bolton, 1973, 410 U.S. 179, 188-189, 93 S. Ct. 739, 35 L. Ed. 2d 201 (Court recognized right of physicians, though not charged criminally, to challenge state's abortion statute); see Epperson v. Arkansas, 1968, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (Court recognized right of school teacher, though not yet charged criminally, to challenge the state's anti-evolution statute).
The court now turns to the question of abstention. While it is clear that the court can grant declaratory relief in the instant case if it ultimately decides after the trial on the merits that the ordinance is unconstitutional, Allee v. Medrano, 1974, 416 U.S. 802, 94 S. Ct. 2191, 40 L. Ed. 2d 566; Steffel v. Thompson, 1974, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505, this court is squarely faced with the issue not reached in Allee and Steffel as to whether a Younger showing, Younger v. Harris, 1971, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669, is necessary to obtain injunctive relief against threatened prosecutions. The court holds that the interwoven precepts of federalism and equitable restraint that combine to make up the Younger doctrine of non-intrusion in the administration of state criminal justice require that the court refrain from the issuance of injunctive relief, at least under the circumstances of this case.
In Younger v. Harris, 1971, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669, and its companion cases, Samuels v. Mackell, 1971, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688; Boyle v. Landry, 1971, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696; Perez v. Ledesma, 1971, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701, the Court held that a federal court may not interfere in an ongoing state criminal proceeding absent a showing of prosecutorial bad faith or harassment, or other "extraordinary circumstances." The Court based its holding in part on the notion of federalism or comity, which the Court defined as
". . . a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." 401 U.S. at 44, 91 S. Ct. at 750.
The Younger Court made clear that among the state functions of which a federal court must be particularly respectful is the administration of state criminal justice. Accord : Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324; Watson v. Buck, 1941, 313 U.S. 387, 61 S. Ct. 962, 85 L. Ed. 1416; Fenner v. Boykin, 1926, 271 U.S. 240, 46 S. Ct. 492, 70 L. ...