extensive covering of hair over the face with many and varied bizarre forms of trim and lengthy tresses of hair on the head streaming and curling down the back. Whether deliberately designed to attract attention or not, the appearances were, to say the least, "eye catching." The reference in the complaint to the "longhaired travellers" was most apt. Exhibit A attached to the complaint depicts the more moderate individualized appearances as distinguished from those which the Court observed in the courtroom.
The principal thrust of the action is that individuals such as plaintiffs and others of like appearance are stopped frequently by New Jersey State Police while traveling on public highways in the State of New Jersey. N.J.S.A. 39:3-29 authorizes police officers of the state to stop vehicles and demand that the operator exhibit his drivers license and registration. The constitutionality of this statute is not challenged. It is contended, however, that the New Jersey State Police singled out persons such as plaintiffs and other persons of like appearance for more frequent surveillance than that directed to other travelers and that illegal searches of the vehicles operated were routinely conducted. Some of the searches were unproductive, but it was conceded that nine produced contraband mostly of marijuana and that nine of the plaintiffs are presently subjects of criminal prosecution in the state courts.
As to the remaining plaintiffs, it does not appear that they have been subjected to criminal prosecution or even threatened with it. But they deplore the inhibiting or "chilling effect" upon their future activities. The Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), observed, "But this sort of 'chilling effect' * * * should not by itself justify federal intervention." If others in the alleged class who have not been prosecuted or threatened with prosecution are inhibited in their activities by fear of apprehension for violations of law, the result seems to be consistent with effective observance of the law. Valid criminal statutes would serve little purpose unless they had some inhibiting effect. "* * * [Persons] having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs. * * *" Younger v. Harris, supra, for federal court interference with state law enforcement policy pursuant to valid criminal statutes.
Those plaintiffs who are the subjects of pending prosecution in state courts have an adequate forum for the protection of their constitutional rights and those who have not been subjected to prosecution or threatened with it have no valid claim to federal court relief which will calm their inhibitions.
The increasing prevalence of the mistaken notion that constitutional rights in cases where state courts have jurisdiction will receive more just and competent consideration in a federal district court than could be expected in a state court should be discouraged. If we ignore the principle of comity and the role of federalism, the burden of the volume of litigation that will be thrust upon the federal court in bypassing the state court will become increasingly great. Of course, where it has been demonstrated that a state court will not protect and enforce federally secured constitutional rights, relief is then and should be available in the federal court. But such is not the situation in this case where counsel for plaintiffs conceded in oral argument that plaintiffs had selected the federal court merely because it was their preference to proceed here. There is no contention that the relief sought here would not be available in a New Jersey state court.
It is now clear from the decision of the United States Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), that a federal court should not interfere with state criminal prosecutions except upon a showing of "extraordinary circumstances where the danger of irreparable loss [is] both great and immediate."
Where injunctive relief would be impermissible, declaratory relief should ordinarily be denied.
Ordinarily * * * the practical effect of the two forms of relief will be virtually identical, and the basic policy against federal interference with pending state criminal prosecutions will be frustrated as much by a declaratory judgment as it would be by an injunction. Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971).