Movie World, Inc. v. Sloane

W.D. Kentucky

Movie World, Inc. v. Sloane

458 F. Supp. 863, 1978 U.S. Dist. LEXIS 19596

CourtDistrict Court, W.D. Kentucky

DecidedFebruary 13, 1978

DocketNo. C 77-0509-L(B)

StatusPublished

This text of 458 F. Supp. 863 (Movie World, Inc. v. Sloane) is published on Counsel Stack Legal Research, covering District Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Movie World, Inc. v. Sloane, 458 F. Supp. 863, 1978 U.S. Dist. LEXIS 19596 (W.D. Ky. 1978).

Pincite

Opinion

ORDER AND MEMORANDUM OPINION

BALLANTINE, District Judge.

This action was brought by plaintiff under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983, alleging violation of its constitutional rights by the defendants under color of an Ordinance.

Plaintiff seeks a preliminary injunction restraining defendants from enforcing the provisions of the City of Louisville’s Ordinance 69, Series 1977. Plaintiff also seeks a declaratory judgment finding the Ordinance unconstitutional and a permanent injunction restraining defendant from enforcing it.

The defendants have moved that the plaintiff’s motion for preliminary injunction be overruled, and also that a declaratory judgment be issued declaring the Ordinance to be constitutional as written and in its application to the plaintiff.

The Board of Aldermen of the City of Louisville, in its Findings, Declarations of Public Policy and Purpose, stated that, as a matter of public policy, “the regulating of adult entertainment activities within the city limits is a public necessity and is required in the interest of the health, safety, welfare and the economic and aesthetic well-being of the people and is required (i) to protect property values; (ii) to prevent blight and the deterioration of the City’s neighborhoods; (iii) to promote the return of residents and businesses to the City’s neighborhoods; and (iv) to decrease the incidents of crime and juvenile delinquency”. Section 1(B), Ordinance No. 69, Series 1977.

The plaintiff alleges (1) that the requirement of obtaining a license will deny his right to engage in business; (2) that enforcement of the Ordinance will infringe upon the exercise of First Amendment rights, based upon no valid public purpose or state interest; (3) that procedural safeguards are lacking which assure prompt judicial review, thereby violating the First and Fourteenth Amendments; (4) that the Ordinance does not set standards with required specificity, resulting in a “chilling effect” upon First Amendment rights; (5) that enforcement diminishes his ability to maintain business, increases costs, discourages customers and has added unnecessary legal expenses; and (6) that the Ordinance is unconstitutional on its face. The plaintiff, in violation of Rule 7(a), Rules of the United States District Court for the Western District of Kentucky, fails to cite a single authority in support of these allegations, other than generally accepted principles of constitutional law.

In response to the motion for preliminary injunction, the defendants urge that the harm of which plaintiff complains is not immediate or irreparable, a prerequisite for injunctive relief, citing U. S. v. American Friends Service Committee, 419 U.S. 7, 95 S.Ct. 13, 42 L.Ed.2d 7 (1974). Further, defendants reply that mere litigation expense, even substantial and unrecoupable costs, does not constitute “irreparable injury”, citing Renegotiation Board v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 24, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974). Both cases follow well-established lines of thought, as [865]*865the “irreparable injury” concept is supported by Myers v. Bethelehem Shipbuilding Corp., 303 U.S. 41, 51-52, 58 S.Ct. 459, 82 L.Ed. 638 (1938) and it has long been held that an injunction is “to be used sparingly, and only in a clear and plain case”. Irwin v. Dixion, 50 U.S. (9 How.) 10, 33, 13 L.Ed. 25 (1850).

Federal courts will not intervene by way of injunction or declaration in an existing state criminal prosecution unless exceptional circumstances exist, i. e., the threat of irreparable injury is both great and immediate. Such threat may be shown by a patently and flagrantly unconstitutional statute, or if there has been bad faith and harassment in its enforcement. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

Younger requires more than a mere allegation and more than a “conclusory” finding to bring a case within the harassment exception. Such a finding must be supported by specific evidence from which it can be inferred that state officials have been enforcing the statute against the plaintiffs in bad faith and for purposes of harassment. Grandco Corp. v. Rochford, 536 F.2d 197 (7th Cir. 1976). See Familias Unidas v. Briscoe, 544 F.2d 182 (5th Cir. 1976); and Williams v. State of Washington, 554 F.2d 369 (9th Cir. 1977).

The test and principles set forth in Younger can readily be applied to civil matters as well. The best approach is not to regard labels “civiT’and “criminal” as controlling, but to analyze the competing interests which each case presents. Palaio v. McAuliffe, 466 F.2d 1230, 1233 (5th Cir. 1972).

The Supreme Court recently affirmed such an approach where injunctive relief was sought, not against the judicial branch of the state government, but against those in charge of an executive branch of an agency or local governments. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).

The remaining allegations deal with violations of constitutional rights, either under the First Amendment right to free speech or the Fourteenth Amendment’s guarantee of due process. Both parties have sought a declaratory judgment pertaining to the constitutionality of the Ordinance as written and in its application to the plaintiff.

Beginning with Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), the Supreme Court of the United States held that the liberty of speech and of the press which the First Amendment guarantees against abridgement by the federal government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment. While the plaintiff can arguably assert First Amendment rights, the state may subject the exercise of First Amendment freedoms to the prior restraint of a license requirement. The license requirement must, however, provide “narrow, objective, and definite standards to guide the licensing authority”. Shuttles-worth v. Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969). See Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Schneider v. State of N. J., 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed.

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