At the same time the Committee was cognizant that the remedy of enjoining a State criminal prosecution, and thus imposing an absolute bar to that prosecution, involves considerations impinging upon serious aspects of our Federal system. This problem of the accommodation of overlapping Federal and State judicial jurisdiction occasioned by our dual system of government has presented a perplexing problem from the beginning of our national history.26 One of the earliest amendments to the Judiciary Act of 1789 was that contained in Section 5 of the Act of March 2, 1793, 1 Stat. 335, which limited the jurisdiction of the Federal courts by providing:

"nor shall a writ of injunction be granted to stay the proceeding in any court of a state ..."

In addition to this statutory limitation upon the Federal injunctive power in the case of a pending State proceeding, the Federal courts, as a matter of comity, have frequently abstained from enjoining or interfering with prospective or anticipated State prosecutions or proceedings.27 There is, therefore, a formidable tradition in the Federal system dictating extreme caution in the use of the Federal injunctive power vis-a-vis threatened or actual State proceedings or prosecutions.

Yet, despite this tradition of caution, the courts and Congress have from time to time found it necessary and desirable to extend Federal jurisdiction in this area. Thus, following the Civil War, numerous exceptions were engrafted by judicial decision upon the original injunctive prohibition.28 The cases have indicated that certain acts passed since the enactment of the foregoing Act of 1793 operated as implied legislative amendments to the blanket prohibition where those subsequent statutes expressly vested Federal courts with exclusive equity jurisdiction.29 This doctrine is incorporated in the present legislative prohibition against Federal injunction of State proceedings, which appears in 28 U.S.C. §2283, as follows:

"A court of the United States may not grant an injunction to stay proceedings in a State Court except as ex

pressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."

The question arises whether the equitable remedies specified by Federal statutes for the protection of civil rights have "expressly authorized" an exception to the anti-injunction statute. It was provided in 1871, and now incorporated in 42 U.S.C. $1983, that:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States, or other person within the jurisdiction thereof, to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress." 30

It has been held by the Court of Appeals in the Third Circuit 31 that 42 U.S.C. §1983 supplied the statutory basis for an exception to the prohibition against Federal injunction of State proceedings; however, there are decisions in the Fourth,32 Sixth,33 and Seventh Circuits to the contrary. Recently the Fifth Circuit held that the injunctive remedy provided by the Civil Rights Act of 1964 constituted an express statutory exception to the antiinjunction statute.35

In our view, the present state of the law does not adequately define or settle the appropriate occasions for the exercise of Federal equity power where a State proceeding or prosecution is brought in those areas of civil rights which the Committee deems entitled to Federal remedial protection. In undertaking to define the appropriate area for Federal equitable intervention in such cases, the Committee would propose to balance the right of the State to enforce its criminal laws and the right of the accused to prompt adjudication of his Federal Constitutional claims by extending the right to an injunction in certain narrow but highly

significant areas in civil rights cases subject to removal on the grounds discussed at pp. 8-9, supra.

There are four types of circumstances, any one of which, in the view of the Committee, should be a sufficient condition precedent in such cases for the exercise of the injunctive power to stay the criminal proceeding:

1. "An issue determinative of the proceeding in favor of the party seeking the injunction has been decided in favor of his contention in a final decision in another proceeding arising out of a like factual situation."

The need for an extension of the remedy of equitable relief in this type of use is illustrated by the litigation arising out of the cases of the Jackson Freedom Riders, which commenced on May 24, 1961 when they entered the "wrong" waiting room at the bus terminal, ignored the request of police to leave it, and were arrested on charges of breach of the peace and conspiracy to breach the peace.30 The facts in relation to each of some 300 defendants were substantially the same. There was no genuine dispute over these facts, and there was no claim that any of the Riders had been disorderly in any way. Fifteen white Protestant ministers, on the basis of testimony not materially different from that available in the other 300 cases, were given a directed acquittal at a trial de novo in the Hinds County Court.

In November, 1963, all of the other cases had been tried in the Municipal Court and then tried de novo before juries in the County Court; a number had been decided and affirmed by the Circuit Court and some of them had been briefed in the Mississippi Supreme Court.

When the fifteen white Protestant ministers were found not guilty, it meant that, as regards the other civil rights defendants, a final decision had been made in another proceeding arising out of a like factual situation which constituted a holding that these facts could not amount to a violation of the State's criminal law. Under such circumstances, the Federal court should have had the power to stay State criminal proceedings against the other

Jackson Freedom Riders. Removal would not be the most appropriate remedy here since it allows the prosecution to continue, and in these cases the prosecutions should have been terminated.

2. "The statute, ordinance, administrative regulation or other authority for the proceeding has been declared unconstitutional in a final decision in another proceeding."

Again, in the case of the Freedom Riders litigation, the Federal District Court, acting on instructions from the Supreme Court (Bailey v. Patterson, 369 U.S. 31, 34), had held the segregation statute underlying the prosecution to be unconstitutional (see p. 13, supra). If Freedom Riders who were tried subsequent to this 1962 Federal court decision were being prosecuted under this same statute, it would be a prosecution under a statute which had been declared unconstitutional in a final decision in another proceeding. Such a factual situation would certainly justify a Federal court's having the power to enjoin any further steps being taken to prosecute the criminal proceeding.

3. "The statute, ordinance, administrative regulation or other authority for the proceeding is, on its face, an unconstitutional abridgement of the rights to freedom of speech, or of the press, or of the people to peaceably assemble"; or

4. "The proceeding was instituted for the purpose of discouraging the parties or others from exercising rights of freedom of speech, or of the press, or of the people to peaceably assemble."

The Committee further recommends that in the civil rights cases made subject to removal, the remedy of equitable relief also be made available where either of the above two criteria recently laid down by the Supreme Court in Dombrowski v. Pfister3 are met. The Court there authorized Federal injunctive relief against a threatened prosecution by the State of Louisiana of officials of the Southern Conference Educational Fund for violation of statutes "justifiably attacked on their face as abridging free ex

pression, or as applied for the purpose of discouraging protected activities." 38 Statutory codification of Dombrowski v. Pfister will serve to stabilize the rule of that case and to provide Federal district Courts with re-enforced guide-lines. Accordingly the Committee has proposed the two additional bases for Federal equitable relief quoted above.

In addition to urging the statutory creation of the aforementioned four categories of cases where the exercise of Federal injunctive power is appropriate, the Committee further recommends the abolition of the judicially created abstention doctrine. The Staff Study shows that this doctrine has been frequently invoked to bar or delay the granting of prompt and effective Federal relief. Unlike the anti-injunction statute itself, the abstention doctrine was a judicial creation which has, in the past, served to lead Federal courts to defer to State courts in the adjudication of Federal rights. Abstention permits the Federal court to postpone the exercise of its jurisdiction and thus to delay the resolution of serious Constitutional problems in civil rights cases.39

In order to assure that the grounds recommended for Federal equitable relief are not eroded by requirements of exhaustion of State remedies such as developed as part of the abstention doctrine, the proposed bill provides that, where a Federal injunction is appropriate on the grounds mentioned, the relief is not to be denied or deferred by reason of the availability of any defense or remedy in the State court. Since the purpose of expanded Federal equitable relief in the limited circumstances described by the Committee is to provide expeditious Federal disposition of a pending State proceeding, it would be inappropriate to require exhaustion of remedies in that same State proceeding. This branch of the Committee's recommendation is in accord with the prevailing authorities.40

Finally, it should be noted that the proposed instances for the remedy of Federal equitable intervention will be resorted to only infrequently if the Committee's removal proposal is adopted. Every case in which we would authorize the grant of equitable relief would also be subject to removal under the proposed re