PAMELA NORCISA vs. BOARD OF SELECTMEN OF PROVINCETOWN & another. [Note 1]

QUIRICO, J. This is an appeal by the defendants, the board of selectmen of Provincetown (selectmen) and their agent, from a decree entered by the judge of the Probate Court for Barnstable County, apparently acting under G. L. c. 231A, Sections 1, 2, and under G. L. c. 215, Section 6, as appearing in St. 1963, c. 820, Section 1, declaring that the plaintiff and her retail clothing business in the town of Provincetown (town) are not within the scope of G. L. c. 101, Sections 1-12, the Transient Vendor Statute, and ordering that the town and its agents, servants, and employees "are hereby restrained and permanently enjoined from enforcing . . . any of the provisions of Mass. G. L. c. 101, Sections 1-12, against the Petitioner or the retail business she operates." This appeal was first entered in the Appeals Court and we then transferred it to this court, acting on our own motion. G. L. c. 211A, Section 10 (A), inserted by St. 1972, c. 740, Section 1. Prior to the commencement of this suit in equity, a criminal complaint had issued in the Second District Court of Barnstable County charging the plaintiff with violating G. L. c. 101, Sections 6, 8. This criminal complaint was still pending when the decree appealed from issued. The obvious purpose and effect of the decree was to enjoin the pending criminal prosecution. [Note 2] We reverse.

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The facts apparently relied on by the judge in issuing the final decree were contained in a document signed by attorneys for both the plaintiff and the defendants, entitled "Agreed Statement of Facts." It appears from this document that sometime late in 1973 the plaintiff, who was a resident of Provincetown, opened a retail clothing business in that town under the name of The Town Crier Wearhouse. At the time she opened her business, the plaintiff was informed by the agent for the selectmen "that she would not be able to open and operate her business unless she paid to Provincetown a license fee of two hundred dollars ($200.00), furnished a bond of five hundred dollars ($500.00), to the Commonwealth, and applied for both a state and town Transient Vendor's License, all of the above pursuant to and authorized by G. L. c. 101, Section 3." [Note 3]

General Laws c. 101, Section 3, [Note 4] requires that anyone "before commencing business in the commonwealth as a

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transient vendor" shall apply for a State license, good for one year, to do business as a transient vendor, subject to local rules and regulations. With the license application, the applicant must deposit $500 or give a bond in that sum, "conditioned upon (1) compliance with the provisions of this chapter relative to transient vendors, (2) payment of all fines or penalties incurred by him through violations of such provisions, and (3) payment or satisfaction of any judgment obtained against him in behalf of any creditor whose claim arises in connection with the business done under the licensee's state license and who . . . shall have given due notice of his claim to the director [of standards in the executive office of consumer affairs]." A "transient vendor" is defined as "any person, either principal or agent, who engages in a temporary or transient business in the commonwealth selling goods, wares or merchandise, either in one locality or in traveling from place to place." G. L. c. 101, Section 1. "Temporary or transient business" is further defined as "any exhibition and sale of goods, wares or merchandise which is carried on in any tent, booth, building or other structure, unless such place is open for business during usual business hours for a period of at least twelve consecutive months." G. L. c. 101, Section 1.

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The plaintiff's position as stated in the "Agreed Statement of Facts" is that she was not a transient vendor at the time the selectmen sought to categorize her as one, that she had not been a transient vendor in the past, and that she would not been a transient vendor in the future. She further asserted that she had performed no acts which could be construed as classifying her as anything except a retailer of clothes, that she intended to conduct her business as a full time retail clothing shop, and that she would take no action inconsistent with these assertions. The plaintiff further claimed that the selectmen refused "to hold an examination or hearing to determine the relevant and material facts." The defendants' position, in the court below as well as in their brief here, has been "that under the terms of the statute petitioner is required to take out a transient vendor's license unless she has been `open for business during usual business hours for a period of at least twelve consecutive months'" (emphasis added). [Note 5]

The briefs of both parties are replete with assertions and counterassertions regarding the constitutionality of

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the Transient Vendor Statute on its face and as applied. The plaintiff contends that the statute on its face and as applied to her deprives her of equal protection and due process of law. The defendants, rather confusingly, "concede that G. L. c. 101 may have facial invalidity or be procedurally deficient in situations such as the one presented here," but nevertheless assert that "respondent is confident that it has handled the matter in a way consistent with the intent of the legislature, the provisions of the statutes, the relevant court rulings and in a way wholly consistent with its grant of authority and discretion." We do not resolve any of these competing contentions because, regardless of how they might be resolved, we would conclude that the judge should not have enjoined the pending criminal prosecution.

At one time, it was common for courts to express the view that an equity court had no "jurisdiction" to enjoin a criminal prosecution. In In re Sawyer, 124 U.S. 200 (1888), the court said, at 210, "The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment or the pardon of crimes or misdemeanors . . . . To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offences, . . . is to invade the domain of the courts of common law, or of the executive and administrative department of the government." To the same effect, see Littleton v. Burgess, 14 Wyo. 173, 178-182 (1905).

In this Commonwealth, however, it was early established that courts with general equity powers have the power to restrain criminal prosecutions. In Shuman v. Gilbert, 229 Mass. 225 (1918), for example, this court recognized the "general rule" that criminal prosecutions are not to be enjoined, but pointed out, at 227, "[T]here is an exception to this comprehensive statement. Jurisdiction in equity to restrain the institution of prosecutions under unconstitutional or void statutes or local ordinances

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has been upheld by this court when property rights would be injured irreparably, and when other elements necessary to support cognizance by equity are present. Greene v. Mayor of Fitchburg, 219 Mass. 121, 127 [1914]. Moneyweight Scale Co. v. McBride, 199 Mass. 503, 505 [1908]."

As pointed out in the Shuman case, the occasions when an equity court may properly enjoin a criminal prosecution remain the exception to the "general rule" of nonintervention. Some of the basic policy reasons underlying the rule of nonintervention were well-expressed by the Supreme Court of Hawaii: "Courts of equity are not constituted to deal with crimes and criminal proceedings. They have no power to punish admitted offenders of a challenged penal statute after holding it to be valid, or to compensate those injured by the violations thereof while the hands of the officers of the law have been stayed by injunction. To that extent such courts are incapable of affording a complete remedy. Equity, therefore, takes no part in the administration of the criminal law. It neither aids, restrains, nor obstructs criminal courts in the exercise of their jurisdiction. Ordinarily a court of equity deals only with civil cases involving property rights where it can afford a complete remedy by injunctive relief. Hence it does not interfere in the enforcement of penal statutes even though invalid unless there be exceptional circumstances and a clear showing that an injunction is urgently necessary to afford adequate protection to rights of property so as to circumvent great and irreparable injury until the validity of the particular penal statute is sustained." Liu v. Farr, 39 Hawaii 23, 35-36 (1950).

Both the Shuman and Liu cases quoted above indicated that equity would act only to protect "property rights" from irreparable damage by criminal prosecution. In the leading case of Kenyon v. Chicopee, 320 Mass. 528 (1946), however, we largely rejected the personal rights-property rights distinction as a factor in considering whether an injunction should issue. We considered

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this question and said at 534: "We believe the true rule to be that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights by injunction. In general, these conditions are, [1] that unless relief is granted a substantial right of the plaintiff will be impaired to a material degree; [2] that the remedy at law is inadequate; and [3] that injunctive relief can be applied with practical success and without imposing an impossible burden on the court or bringing its processes into disrepute." This, then, is the test which the probate judge should have applied in considering the request for an injunction, and it is the test which we now apply to the facts before us. In so doing, we assume without deciding that parts (1) and (3) of the Kenyon test are satisfied and concentrate on part (2), that is, whether the remedy at law would be adequate in this case.

The plaintiff variously claims that G. L. c. 101, Sections 1-12, is either unconstitutional on its face or as applied, or that the statute, properly construed, does not apply to her at all. In accordance with these claims, she asserts that she cannot be prosecuted for failure to comply with the statute. If we assume, again without deciding the question, that the plaintiff indeed cannot properly be prosecuted under this statute, the issue resolves itself simply to whether the available defenses to the District Court criminal complaint amount to an adequate remedy at law. In the circumstances of this case, we think they plainly do.

In both the Shuman and Kenyon cases, the question was considered whether, in the circumstances of those cases, the defense to the criminal prosecution provided an adequate remedy at law. Since the injunction was denied in the former case and granted in the latter, it is instructive to compare them.

In the Shuman case, six merchants alleged that the defendant chief of police of Northampton threatened to prosecute them for conducting a business without a

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license, which they claimed they were not obligated to obtain. The plaintiffs' bill sought to make out a case of irreparable damage and inadequacy of legal remedy by alleging, inter alia, that it would take several months to obtain a decision on the case from an appellate court and that in the intervening period the loss of profits and advantageous business relations would cause the plaintiffs great and irreparable damage. To these averments, a demurrer was sustained. This court upheld the sustaining of the demurrer. After noting that in the event of multiple, oppressive, and wrongful prosecutions, an injunction might properly issue, we said: "A possibility that complaints may be lodged against six persons is not enough under these circumstances to make out a case of multiplicity. The allegations as to repeated complaints are not sufficient to warrant the inference that the courts of this Commonwealth will countenance continued and oppressive prosecutions when once a genuine test case open to fair question has been presented and is on its way to final decision." 229 Mass. at 229 (1918). We further rejected any notion that our courts of criminal jurisdiction could not protect the rights in question: "[The bill] assumes that one innocent of any infraction of the law will be found guilty by the district court and by the Superior Court, a presumption which as matter of law cannot be indulged, at least upon such general allegations. The allegations as to property are nothing more than the ordinary averments which might be made by anybody engaged in business, undertaking a branch of commercial adventure believed by the officers charged with enforcing the law to be in contravention of some penal statute confessedly valid in itself. Simply that one is in business and may be injured in respect of his business by prosecution for an alleged crime, is no sufficient reason for asking a court of equity to ascertain in advance whether the business as conducted is in violation of a penal statute." 229 Mass. at 230 (1918).

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In the Kenyon case, by contrast, we reversed interlocutory decrees sustaining demurrers where the bill alleged that members of Jehovah's Witnesses had been repeatedly, on different dates, arrested, prosecuted, and convicted under an unconstitutional ordinance, prohibiting distribution of handbills, that on at least two occasions a defendant judge had convicted some of the plaintiffs despite being shown United States Supreme Court decisions holding such an ordinance unconstitutional, that the defendants well knew that the ordinances were unconstitutional and void, that the plaintiffs' means of paying bail fees and of posting bail and appeal bonds were exhausted, and that the defendants had threatened to and would continue to make false arrests, all to the irreparable damage of the plaintiffs' attempts to exercise their constitutional rights. In these circumstances, we held that an injunction against further prosecutions could properly issue, if the allegations were ultimately proved. We observed: "The plaintiffs' rights are of the most fundamental character. According to the bill they have been violated repeatedly. It is plain that the legal remedies by defending against repeated complaints and bringing successive actions for malicious prosecution or false arrest are not adequate." 320 Mass. at 534 (1946).

In the present case, the plaintiff is the subject of a complaint charging a single violation of the statute. She avers that the statute is either unconstitutional on its face or as applied, or that, properly construed, it is inapplicable to her. These averments, of course, would, if established, each constitute a complete defense to the violation charged. We repeat here a passage from a United States Supreme Court case which applies equally to the matter before us: "It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts. Its imminence, even though alleged to be in violation of constitutional guaranties, is not a ground for equity relief since the lawfulness or

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constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for injunction. . . . It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith, or that a . . . court of equity by withdrawing the determination of guilt from the . . . [criminal] courts could rightly afford petitioners any protection which they could not secure by prompt trial and appeal pursued to this Court." Douglas v. Jeannette, 319 U.S. 157, 163-164 (1943).

In general, we believe the Federal policy of ordinarily refusing to enjoin pending State criminal prosecutions is sound. This policy, based partly on principles of Federal-State comity and partly on the general equitable principles we have summarized in this opinion, Younger v. Harris, 401 U.S. 37, 43-44 (1971); comment, 6 Suffolk U. L. Rev. 750, 752 (1972), prohibits equitable interference with criminal prosecutions absent "very special circumstances." Younger v. Harris, supra, at 45. "Very special circumstances" may be merely a shorthand way of requiring a stricter application of general equitable principles, for example, that no injunction will issue unless the plaintiff will suffer irreparable and immediate injury without it. But however the concept is phrased, the necessity of defending a single criminal prosecution rarely, if ever, justifies issuance of the injunction. Younger v. Harris, supra, at 46. See Bisbee v. Arizona Ins. Agency, 14 Ariz. 313, 314-317 (1912); Sullivan v. San Francisco Gas & Elec. Co. 148 Cal. 368, 371-373 (1905); Denver v. Beede, 25 Colo. 172 (1898); Liu v. Farr, 39 Hawaii 23, 33-37 (1950).

Our decision would not be different if we were considering only those portions of the proceedings below which involved a request for and grant of declaratory relief under G. L. c. 231A, Sections 1, 2. The fundamental jurisprudential considerations underlying the general prohibition

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against enjoining a pending criminal prosecution apply with full force to support a prohibition against issuing declaratory decrees concerning a pending criminal prosecution. To conclude otherwise would encourage fragmentation and proliferation of litigation and disrupt the orderly administration of the criminal law. [Note 6]

The rule we adopt today in regard to the issuance of declaratory judgments when criminal litigation is pending is merely a logical extension of our rules which generally proscribe the issuance of such a judgment when an appropriate administrative proceeding is in progress, East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. 444, 452-453 (1973), or when a civil proceeding in which the same issue is or can be raised is already pending between the parties. Jacoby v. Babcock Artificial Kidney Center, Inc. 364 Mass. 561, 562-564 (1974). In the latter case we said: "Generally `[a] court cannot declare rights as to matters involved in a prior pending action.' Anderson, Actions for Declaratory Judgments (2d ed.) Section 209 (1951). While declarations of right may be appropriate in exceptional cases even when other proceedings are in progress, there is an ordinary presumption against such relief. . . . In the East Chop case we stated that `the existence of . . . [a] dispute alone is insufficient reason to disrupt the ordinary administrative process.' . . . This applies a fortiori to

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pending court proceedings. The declaratory relief procedure was not intended to permit the same claim to be adjudicated in multiple suits." 364 Mass. at 563 (1974). In applying these principles in the criminal prosecution context, we follow the Federal rule, Samuels v. Mackell, 401 U. S. 66, 69-73 (1971); Kugler v. Helfant, 421 U.S. 117, 123-131 (1975), and the rule adopted in most States which have considered the issue. See, for example, Taylor v. Cooper, 60 So. 2d 534, 535-536 (Fla. 1952); Staub v. Mayor of Baxley, 211 Ga. 1, 2 (1954); Ostrander v. Linn, 237 Iowa 694, 700-710 (1946) (special circumstances found present justifying declaratory relief); Grimm v. County Commrs. of Washington County, 252 Md. 626, 631-641 (1968); Updegraff v. Attorney Gen. 298 Mich. 48, 49-52 (1941); Nelson v. Knight, 254 Ore. 370, 372-374 (1969); Johnson City v. Caplan, 194 Tenn. 496, 498-499 (1952). But see Goodwin v. Louisville, 309 Ky. 11, 12-13, 17 (1948); Kraus v. Birns, 241 N. Y. S. 2d 189, 191 (1963). Cases in which declaratory relief was granted where no criminal prosecution was actually pending are, of course, readily distinguishable. Steffel v. Thompson, 415 U.S. 452, 475 (1974). Sun Oil Co. v. Director of the Div. on the Necessaries of Life, 340 Mass. 235, 239 (1960). Commonwealth v. Baird, 355 Mass. 746, 755 (1969). Mobil Oil Corp. v. Attorney Gen. 361 Mass. 401, 405-406 (1972). See, generally, anno. Validity, Construction, and Application of Criminal Statutes or Ordinances as Proper Subject for Declaratory Judgment, 10 A. L. R. 3d 727 (1966 and Supp. 1974); note, Declaratory Relief in the Criminal Law, 80 Harv. L. Rev. 1490 (1967).

For the reasons given above, the injunction and declaratory relief should not have been granted. The final decree is reversed and a new judgment is to be entered dismissing the bill.

So ordered.