Century 21 Shows, Inc. v. State of Iowa

346 F. Supp. 1050, 1972 U.S. Dist. LEXIS 12348

• Court: District Court, S.D. Iowa
• Decided: August 12, 1972
• Docket: Civ. 72-179-2
• Status: Published

Opinions

MEMORANDUM ORDER

Before STEPHENSON, Circuit Judge, VAN PELT, Senior District Judge, and HANSON, Chief District Judge.

STEPHENSON, Circuit Judge.

Plaintiffs are the suppliers and operators of midway shows, rides, and concessions at various fairs in the State of Iowa. On June 22, 1972 they instituted in the Polk County, Iowa District Court a lawsuit seeking a declaration that hoop-la, balloon dart, bear pitch, basketball shoot, football throw, shooting galleries, six cat game and milk bottle game, fishpond game, block color group, tic-tae-toe, shooting waters, huff and puff, dragline, and fool the guesser do not fall within those portions of I.C.A. Chapter 726 which make criminal the playing of any game for a money consideration or for other property of any value. They premised the claim for declaratory relief on the theory that these activities do not constitute “gambling”, but require skill and dexterity in achieving the objective underlying each. They did not explicitly call into question the constitutionality of a single statute comprising Chapter 726.

After a plenary bench trial the District Court, on July 17, 1972, denied the requested relief, holding that the enumerated “games” fell squarely within the conduct sought to be proscribed by Chapter 726. From that decision the plaintiffs lodged a direct appeal in the Supreme Court of Iowa, and sought a Stay of the underlying judgment pending final adjudication of the appeal. The Supreme Court, in a brief and unpublished order, denied the request for a Stay and refused to enjoin the Iowa Attorney General from initiating prosecutions under the statutes pending disposition of the appeal. The merits of the appeal, however, remain for Supreme Court adjudication.

Thirteen days after the Supreme Court denied interim equitable relief, the plaintiffs commenced the present civil rights action.¹ They requested in the alternative either preliminary injunctive relief pending final disposition of the State appeal, or a declaration that §§ 726.1 and 726.3 are impermissibly vague under standards of the Fourteenth Amendment. In view of the nature and force of the federal constitutional attack, and because the plaintiffs sought ultimately to enjoin a State official from enforcement of a State statute of statewide application, this statutory three-judge court was designated and impaneled. 28 U.S.C. §§ 2281, 2284. See generally, Potter v. Meier, 458 F.2d 585, 588 (CA8 1972). Some three hours before this matter was heard the defense filed a motion to dismiss and a supporting brief.

Federal courts sit not to supervise or frustrate good faith State judicial proceedings but to enforce and protect federally protected rights. As a general proposition, when it is alleged that those rights have been violated by the application of State legislation, but there are questions of State law that, after construction by the authoritative State tribunal, may remove the asserted infirmity, a federal court will stay its hand while the parties resort to that forum for adjudication of the State questions. Railroad Commission v. Pullman Co., 312 U.S. 496, 500-501, 61 S.Ct. 643, 85 L.Ed. 971 (1941), and Reetz v. Bozanich, 397 U.S. 82, 85-87, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). This principle has been clothed with especial importance when federal constitutional adjudication is sought during the pendancy of a State judicial proceeding. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), proscribes federal courts from enjoining ongoing State criminal proceedings where there is no showing that those proceedings have been initiated in bad faith. In Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), it was held that defendants in pending State criminal proceedings are precluded from obtaining federal declaratory relief on the constitutionality of the statute under which they are charged. Although neither Younger nor Samuels controls this case —because they deal only with the propriety of federal declaratory or injunctive relief while State criminal proceedings are pending—the implications of such precedents are weighty.

We recognize that Iowa law enforcement - officials have yet to act against any individual who has engaged in the playing of one or more of the specified games. Thus in this narrow sense there does not exist a pending State criminal proceeding which would be disrupted by federal judicial action. But the plaintiffs have themselves initiated State civil proceedings which have not as yet moved to final judgment. We cannot, at the appellate stage of those important and perhaps dispositive proceedings, view our favorable action on either of the alternative requests for relief as amounting only to a minimal interference with State judicial activity.² So to conclude would be to exalt formal logic at the expense of the sensitivities of the problem involved. Moreover, such a result would be fundamentally at odds with thirty years of federal abstention jurisprudence. We accordingly hold that we are compelled to abstain from granting any relief until the Supreme Court of Iowa disposes of the plaintiffs’ appeal. Harrison v. N.A.A.C.P., 360 U. S. 167, 176-178, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959); Railroad Comm’n v. Pullman, supra, p. 500 of 312 U.S., p. 643 of 61 S.Ct., and McGuire v. State of Iowa, 320 F.Supp. 243, 246 (SD Iowa 1970). Cf. Lake Carriers’ Assn. v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d (1972); Glenn v. Field Packing Co., 290 U.S. 177, 54 S.Ct. 138, 78 L.Ed. 252 (1933); Leiter Minerals, Inc., v. United States, 352 U.S. 220, 228-229, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957), and Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 27-30, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959). See also Moyer v. Nelson, 324 F.Supp. 1224, 1230-1232 (SD Iowa 1971). Semble, Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972); Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972); Lynch v. Household Finance Corp., 405 U.S. 538, 552-556, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), and Parisi v. Davidson, 405 U.S. 34, 41-42, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972). Assuming, without deciding, this complaint frames a substantial constitutional question, we will retain jurisdiction and deny the defense motion to dismiss.

1 . Federal jurisdiction was invoked under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3).

2 . The dissent concedes that “it is only too readily apparent that [interim injunctive relief] is not available to the plaintiffs in State Court, for Iowa’s highest court has just denied them temporary relief.” See post, at 1054. It is this factor which, for the dissent, serves to distinguish the conventional abstention factual setting from that present here. The distinction is evanescent. When an interlocutory issue has been so squarely disposed of by a State court of last resort, federal inter-meddling is every bit as inappropriate as is the premature adjudication proscribed by traditional abstention doctrine.