The opinion of the court was delivered by: COHEN
Plaintiff, Luana Penney, brought this purported class action under Rule 23(a)(1) and (3) of the Federal Rules of Civil Procedure, for herself and on behalf of all other citizens similarly situated. Her complaint, seeking injunctive and declaratory relief, demanded the convocation of a three-judge statutory court pursuant to 28 U.S.C. § 2281
and § 2284. Under attack is the constitutionality of a section of the New Jersey Disorderly Persons Act, R.S. 2A:170-25.6, N.J.S.A., which provides that:
"Any person who attempts to commit suicide is a disorderly person."
This action arose out of a complaint against plaintiff for violation of the subject statute, which charged her with attempted suicide on or about July 16, 1969 in Cherry Hill Township, New Jersey. Upon trial in the local Municipal Court, plaintiff's counsel moved for a dismissal of the complaint on the ground that the statute in question was unconstitutional and, therefore, an attempted suicide would constitute no offense. Pending a determination of the present action, the Judge of the Municipal Court stayed the trial before him.
It is the plaintiff's contention that the challenged statute is repugnant to the United States Constitution on six grounds: (1) it violates due process because of the inconsistency of treatment in that it punishes a person who attempts suicide while the successful actor is not penalized; (2) it unduly encroaches upon an individual's personal and private freedoms; (3) it contravenes the cruel and unusual punishment prohibition of the Constitution in that it punishes one who is mentally ill; (4) it deprives an individual of his right to waive his constitutional right to life; (5) it is an unreasonable exercise of the State's police power; and (6) it violates the privileges and immunities, the equal protection, and due process provisions of the Federal Constitution and its Amendments. Consequently, maintains the plaintiff, this Court should enjoin the enforcement of the subject statute.
Prior to filing answers here, the defendants, the State of New Jersey, the Municipal Court of Cherry Hill and the Attorney General of New Jersey, moved to dismiss the complaint asserting that it lacked a requisite substantial federal question, therefore, subject matter jurisdiction was wanting; or in the alternative, should this Court find jurisdiction, then urging that it nevertheless should abstain from exercising it.
The threshold question is whether a substantial federal question is presented, thus bringing it within this Court's jurisdiction.
This Court has jurisdiction on the basis of both general federal question jurisdiction and specific federal jurisdiction over cases seeking relief for certain specified federal wrongs, 28 U.S.C. §§ 1331, 1343, 2201 and 42 U.S.C. § 1983.
After careful consideration, we have reached the conclusion that this Court lacks jurisdiction for want of a substantial federal question. For where the alleged constitutional question is without necessary substance, the complaint will be dismissed. Ford v. Attorney General of Pennsylvania, 184 F. Supp. 129 (E.D. Pa. 1960), affirmed 364 U.S. 291, 81 S. Ct. 65, 5 L. Ed. 2d 39; Green v. Board of Elections of City of New York, 259 F. Supp. 290 (S.D.N.Y. 1966), affirmed 380 F.2d 445 (2 Cir. 1967), certiorari denied 389 U.S. 1048, 88 S. Ct. 768, 19 L. Ed. 2d 840 (1968). As pointed out in Ford, an attack upon a state criminal statute is more appropriate in its own courts on the basis that, in the absence of compelling reasons to prevent irreparable loss "both great and immediate," federal courts will not interfere with the enforcement of a state's criminal laws, even though those laws may be unconstitutional.
The under lying reason, aside from considerations of comity and abstention, is that both procedural and substantive due process are provided for within the states so long as avenues of appeal are left open for ultimate determination.
While it is true, as contended by the plaintiff, that the inferior courts of New Jersey will not determine the constitutionality of the subject statute, but will leave the resolution of such an issue to appellate courts, State In Interest of J.W., 106 N.J. Super. 129, 131, 254 A. 2d 334 (Juv. & Dom. Rel. Ct., Union Co. 1969), State v. Cannarozzi, 77 N.J. Super. 236, 239, 186 A. 2d 113 (App. Div. 1962), Neeld v. Automotive Products Credit Ass'n., 21 N.J. Super. 159, 90 A. 2d 558 (D.C. 1952), the avenues for that appellate determination and for post-conviction review are manifestly available, should plaintiff be convicted.
Assuming, arguendo, that plaintiff has sufficiently alleged a substantial federal question, then abstention would be clearly indicated to afford New Jersey's Courts an opportunity to assess their own state's legislation. The succinct statement of Mr. Chief Justice Stone in the landmark case of Douglas v. City of Jeannette (1943) 319 U.S. 157, at pages 163-164, 63 S. Ct. 877, at pages 880-881, 87 L. Ed. 1324 is remarkably apt:
"It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good ...