appellate court had not had an opportunity to resolve the dispute. Id.
Plaintiff, Smith, attempts to distinguish Justice on the grounds that the case did not involve a First Amendment challenge and that it was characterized by the "kind of exceptional circumstances, e.g., forum shopping and failure to pursue claims, which support abstention." Plaintiff contends that these factors are absent here, but I cannot agree. In fact, plaintiff's complaint appears to be directed more at the result of Judge Wood's determination than with the constitutionality of the statute. Certainly this case, like Justice, involves a situation where Pennsylvania appellate courts may apply the saving construction to the unconstrued conservatorship statute. Although the reasoning of the court in Justice is persuasive, the importance of plaintiff's alleged First Amendment violations (para. 29 - violation of First Amendment right to free speech, to vote, to marry and to contract) mandate that I give his argument further consideration.
Plaintiff also appears to concede, albeit indirectly, that an "as applied" First Amendment challenge would be an appropriate case for abstention. In advocating his facial challenge, plaintiff maintains that a state court adjudication that the statute has been unconstitutionally applied to him would not eliminate the constitutional defect to all other residents of Pennsylvania. This argument acknowledges that the statute, as applied to plaintiff, but not on its face, is "obviously susceptible of a limiting construction," Hawaii Housing Authority, supra, at 237 (quoting Zwickler, supra, at 251 & n.14), and that a state appellate court interpretation of section 5501 in plaintiff's favor would obviate the need for me to decide his "as applied" constitutional claim. Thus, a state court resolution of the proper interpretation of section 5501 would most likely resolve the apparent ambiguity alleged by plaintiff.
See Procunier v. Martinez, 416 U.S. 396, 401, 40 L. Ed. 2d 224, 94 S. Ct. 1800 & n. 5 (1974) (citing Baggett v. Bullitt, 377 U.S. 360, 376-77, 12 L. Ed. 2d 377, 84 S. Ct. 1316 (1964) (abstention appropriate in "as applied" vagueness challenge to statutory loyalty oath requirement)).
Indeed, the Third Circuit, although in a non-First Amendment context, has recently stated that abstention might be more appropriate in cases involving an "as applied" statutory challenge than in cases involving a facial challenge. Georgevich, supra, at 1091-92. ("the reach of an uncertain state statute might . . . be more susceptible of a limiting or clarifying construction"). Plaintiff, therefore, appears to rest his case on his facial First Amendment challenge. Even assuming that he has raised a facial challenge, which I find problematic, I find that this case would be a proper setting for abstention.
Although Georgevich involved an equal protection challenge, the Third Circuit, sitting en banc, accepted the proposition that abstention is appropriate in the context of a facial constitutional challenge. See id. at 1091, 1092 (both facial challenge and as applied challenge may be materially affected by state court resolution of state law issue). I am not persuaded however, that abstention should never apply in the context of a facial First Amendment challenge.
I recognize the reluctance to abstain in cases involving First Amendment challenges, largely because of the cost that plaintiffs may incur while their First Amendment claims are litigated in state court proceedings. See, e.g., Zwickler, supra, 389 U.S. at 252, 254 (abstention inappropriate in cases in which statutes justifiably attacked on their face as abridging free expression). See also Procunier, supra, 416 U.S. at 401 n.5 (abstention not required in context of facial First Amendment vagueness challenge); New Jersey-Philadelphia, etc. v. New Jersey State Board, 654 F.2d 868, 887 (3d Cir. 1981) (Pullman considerations have little weight in First Amendment case at preliminary injunction stage). Nevertheless, the Supreme Court has never endorsed the proposition that the incantation of the words "facial First Amendment challenge" will always render Pullman abstention unwarranted. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S. Ct. 2794, 2805, 86 L. Ed. 2d 394 (1985) (O'Connor, J., concurring).
As recently as 1979, the Supreme Court required abstention in a case involving a facial First Amendment challenge. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 306-13, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979). Despite a facial First Amendment freedom of association challenge, abstention was appropriate "where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question." Id. at 306 (citations omitted).
Moreover, although a majority of the Supreme Court in Brockett disagreed with Justice O'Connor concerning the appropriateness of abstention, the facts in Brockett indicate the sensitive posture of that case. Brockett, the court observed, involved the risk of criminal conviction and civil penalties under an obscenity statute. Brockett, supra, 105 S. Ct. at 2796. The court noted that the case involved the statute whose "very existence" has a chilling effect on protected expression. Id. 105 S. Ct. at 2797. Here, the existence of Pennsylvania's conservatorship statute does not, by itself, have such a chilling effect. Plaintiff however, alleges that the statutory phrases "mental illness" "liable to become," and "the victim of designing persons" chill his First Amendment rights along with the First Amendment rights of all Pennsylvania citizens.
Yet the Pennsylvania statute does not regulate speech or any other First Amendment freedom. Rather, the challenged provisions deal with an individual's ability to manage his property, a determination peculiar to the role of a state court judge. In cases in which courts have denied abstention, the First Amendment attack was directed at state statutes whose very existence regulated free expression. See, e.g., Brockett, supra, 105 S. Ct. at 2796-97 (statute regulating obscene expression); Zwickler, supra, at 242-43 (statute regulating distribution and content of handbills); Baggett, supra, at 361-62 (statute conditioning employment on loyalty oath). I find no similar statutory regulation of free expression inherent in Pennsylvania's conservatorship statute.
In addition, at this juncture, plaintiff is requesting a permanent injunction against the state court proceedings. See relief requested, para. 2. In support of his request for an injunction against Judge Wood's imposition of a conservatorship on his estate, plaintiff cites a Third Circuit case in which the court noted that Pullman considerations have little weight at the preliminary injunction stage. See New Jersey-Philadelphia, etc., supra, at 887.
A decision to grant plaintiff's request for a permanent injunction against the ongoing state court proceedings would fly in the face of the purpose of the Pennsylvania statute. I would be required to allow plaintiff to spend all his money as he wishes, despite a state court finding of mental illness. This could result in plaintiff depleting the entirety of his 1.5 million dollar estate before any court adjudicates his First Amendment claim. I am not convinced that such relief is required, especially in light of the $5,000 monthly allowance that the state court has permitted plaintiff to spend without restraint.
Finally, and perhaps most important, application of § 5501 in plaintiff's case involves no fear of criminal prosecution. Virtually all courts declining abstention in the face of a First Amendment challenge have warned of the high cost of abstention and of the adverse chill on First Amendment rights. That chilling effect almost invariably results from the risk of criminal prosecution for engaging in the threatened activity. See, e.g., Brockett, supra, 105 S. Ct. at 2796 (comprehensive scheme of criminal and civil penalties for violation of obscenity statute); Zwickler, supra, at 242 (fear of criminal prosecution for violating handbill regulation); Dombrowski v. Pfister, 380 U.S. 479, 486, 14 L. Ed. 2d 22, 85 S. Ct. 1116 (1965) (threat of criminal prosecution); Baggett, supra, at 362-66 (penalty for perjury); Davis v. Francois, 395 F.2d 730-732 (5th Cir. 1968) (risk of criminal conviction for picketing); Lacey v. Borough of Darby, 618 F. Supp. 331, 333 (E.D. Pa. 1985) (threat of arrest for using sound equipment during political speech).
Plaintiff however, faces no similar threat. The statute has no provision for criminal or civil sanctions, and plaintiff's only disability stems from a state court determination, made after a hearing on the merits, in which he was deemed incompetent to manage his estate.
For the reasons stated above, I grant defendant family members' motion for failure to state a claim. I further dismiss Judge Wood from this lawsuit as an improper party because plaintiff has failed to allege an Article III case or controversy against the judge. I also note that had I found it necessary to do so, I could have properly abstained from deciding this case.
AND NOW, this 17th day of September, 1986, upon consideration of defendants' motion to dismiss and plaintiff's response thereto, it is hereby ORDERED that plaintiff's action against defendants, E. Newbold Smith, Margaret duPont Smith, et al. is DISMISSED.
IT IS FURTHER ORDERED that plaintiff's claim against defendant Judge Lawrence Wood is DISMISSED.
Anthony J. Scirica, J.