Speight v. Slaton

356 F. Supp. 1101, 1973 U.S. Dist. LEXIS 14809

• Court: District Court, N.D. Georgia
• Decided: February 22, 1973
• Docket: Civ. A. 17075
• Status: Published

Opinions

MOYE, District Judge:

OPINION AND ORDER

Plaintiffs operate an establishment in Atlanta, Georgia, known as the Harem Bookstore. On August 23, 1972, pursuant to recently enacted Georgia statutes relating to obscenity,¹ the defendants herein brought a civil suit in the Georgia state courts to abate the Harem Bookstore as a public nuisance.² On the same day the state court ordered plaintiffs herein to show cause why their bookstore should not be abated as a public nuisance, they brought this suit in federal court alleging that the materials sold in their bookstore were protected by the First Amendment and the attempt to abate their bookstore as a public nuisance was unconstitutional.³ Plaintiffs challenged the constitutionality of the Georgia statutes as written and as applied and requested this Court to intervene in the state court proceedings and enjoin further use of the allegedly unconstitutional Georgia statutes. Since that time the state court suit has been stayed pending the outcome of this request for federal intervention.

The propriety of federal intervention in state court proceedings has been the subject of numerous recent Supreme Court and Fifth Circuit opinions. New guidelines for federal intervention in state court criminal proceedings were established by the Supreme Court in Younger v. Harris⁴ and its companion cases.⁵ But Younger specifically declined to extend the applicability of those standards to intervention in state court civil proceedings.⁶

We need not pause here to analyze how the Younger standards should be applied in state court civil cases because the instant case does not present that situation. The situation before this Court does not involve a request for intervention in simply a Georgia state court civil case, but instead, a state court civil proceeding used to enforce Georgia’s criminal laws. The propriety of federal intervention in these circumstances has been squarely decided by the Fifth Circuit Court of Appeals in Palaio v. McAuliffe.⁷

Palaio involved a fact situation strikingly similar to the instant case. In Palaio, plaintiffs requested the federal district court to enjoin Georgia civil and criminal suits which had been brought against them under Georgia obscenity laws. The federal district court refused to intervene and the court of appeals affirmed. The only difference between Palaio and the instant case is that in Palaio the state court had already heard the entire case and rendered a decision which was affirmed by the Georgia Supreme Court when the federal district court refused to intervene. Here, the state court civil suit has not yet begun and has been stayed pending the outcome of this case. As explained below, this distinction weighs heavily in favor of nonintervention.

In affirming the district court’s refusal to intervene, the court of appeals in Palaio held:

“We believe, however, that application of the principles of Younger should not depend upon such labels as ‘civil’ or ‘criminal,’ but rather should be governed by analysis of the competing interests that each case presents [and] when federal anticipatory relief will significantly affect a state’s enforcement—by whatever means—of its criminal laws, then such relief is barred by the strong policy of noninterference, unless the plaintiff can meet the heavy burden of proof that Younger imposes.”

* * * * * *

“We thus pose a limited answer to the question expressly reserved in Younger, supra, by holding that, where plaintiff is unable to prove the existence of ‘special circumstances,’ the principles of Younger bar federal intervention in a state civil proceeding that is an integral part of a state’s enforcement of its criminal laws.”8

The instant case which we are requested to enjoin is, like Palaio, a state civil proceeding that is an integral part of the State of Georgia’s enforcement of its criminal laws. In fact, the instant ease presents an even stronger case for non-intervention than Palaio because the state laws which were claimed to be unconstitutional in Palaio had already been tested in the Georgia state courts prior to the request for intervention, while here the state law is a new statute and has not been ruled on by the Georgia state courts.

In support of Palaio, which was virtually a “gray horse” case, we could refer to Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), in which Chief Justice Burger, speaking for the dissent, consisting of Justices Burger, White and Blackmun [Justices Powell and Rehnquist not participating], suggested:

“We have not yet reached or decided exactly how great a restraint is imposed by these principles on a federal court asked to enjoin state civil proceedings. Therefore on remand in this case, it seems to me the District Court, before reaching a decision on the merits of petitioner’s claim, should properly consider whether general notions of equity or principles of federalism, similar to those invoked in Younger, prevent the issuance of an .injunction against the state ‘nuisance abatement’ proceedings in the circumstances of this case.” Id. at 244, 92 S.Ct. at 2163.

Furthermore, plaintiff consistently responded at the three-judge hearing that he could raise the same issues of constitutionality in the Georgia state courts. Consequently, this Court holds that the Georgia state court suit has not been brought in bad faith or for purposes of harassment and that plaintiff has failed to present any “special circumstances which would justify federal intervention.

Accordingly, the complaint is dismissed.⁹

1 . Ga.Code Ann. § 26-2101 et seq. (1972).

2 . Civil proceedings to abate the bookstore as a public nuisance are authorized by the combined useage of § 26-2103 and § 72-202 of the Georgia Code. Section 26-2103 declares: “The use of any premises in violation of any of the provisions of this Chapter (relating to obscenity) shall constitute a public nuisance.” Section 72-202 provides that the petition to abate a public nuisance “must proceed for the public on information filed by the solicitor general of the circuit.” Thus, Georgia provides a method for civil enforcement of its criminal statutes relating to obscenity.

3 . Plaintiffs have properly asserted federal jurisdiction under 28 U.S.G.A. § 1343(3) based on a cause of action under 42 U.S. C.A. § 1983 and requested a three-judge court be convened pursuant to 28 U.S. C.A. §§ 2281 and 2284.

4 . 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1970). The Court held “that the possible unconstitutionality of a statute ‘on its face’ does not in itself justify an injunction against good-faith attempts to enforce it” and federal courts should not intervene absent a showing of “bad faith, harassment, or any other unusual circumstance that would call for equitable relief.” Id. at 54, 91 S.Ct. at 755.

5 . Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1970) ; Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1970) ; Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1970) ; Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1970) ; Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1970).

6 . Justice Stewart, concurring, stated that the Court was not dealing with “the considerations that should govern a federal court when it is asked to intervene in state civil proceedings, where, for various reasons, the balance might be struck differently.” (401 U.S. at 55, 91 S.Ct. at 957).

7 . 466 F.2d 1230 (5th Cir. 1972).

8 . Id. at 1232-1233.

9 . In view of the above holding, it is unnecessary for the Court to rule on defendant’s motion requesting the Court to abstain from hearing this case until a decision has been reached in the Georgia state courts.