CLARKSON S. FISHER, District Judge.
Plaintiff, James G. Lawrence, brings this suit attacking the constitutionality of N.J.S. 2A:148-10.
Upon proper application, a temporary injunction was issued staying pending criminal proceedings in the Superior Court, Law Division, Essex County. Plaintiff further seeks to have this injunction made permanent. Pursuant to 28 U.S.C. §§ 2281 and 2284, this three judge court was convened.
Plaintiff was indicted for advocating, encouraging, justifying, praising, or inciting the unlawful destruction of office furniture and equipment on the premises of the Observer, a college newspaper published at Rutgers, the State University, located at 350 High Street, Newark, New Jersey. This incident is alleged to have occurred on October 23, 1970.
In seeking this court's intervention into the state criminal process, plaintiff relies on the Supreme Court's opinion in Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965) as an exception to the general rule articulated in Douglas v. City of Jeannette, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324 (1943) prohibiting such interference by a Federal Court. Plaintiff argues that Dombrowski, supra, sets forth two circumstances which allow a Federal Court to disregard the Douglas rule. The first is when a state statute is challenged on its face for being an overly broad and vague regulation of expression and there are actual threatened prosecutions under that statute. The second circumstance warranting interference under Dombrowski is when the State institutes a prosecution without any hope of ultimate success and the action is designed only to inhibit lawful First Amendment activities.
Plaintiff contends that his claim comes within the ambit of the first criterion set out in Dombrowski, supra. He takes the position that the statute under which he was indicted was overbroad and vague and susceptible to unconstitutional application. However, under the opinions of the United States Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669, and Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688, decided after the arguments were heard in the case sub judice, Dombrowski only permits intervention by a Federal Court into the state criminal process when there is a bad faith prosecution or there is irreparable injury which is both "great and immediate". Such injury must be more than that incidental to every criminal proceeding.
The court further elaborated on what must be shown to constitute "great and immediate" irreparable injury which would allow intervention under Dombrowski when it said:
"We do not think that opinion (Dombrowski) stands for the proposition that a federal court can properly enjoin enforcement of a statute solely on the basis of a showing that the statute 'on its face' abridges First Amendment rights. There may, of course, be extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment."