414 Theater Corp. v. Murphy

• Decision Date: 17 May 1974
• Docket Number: No. 641,Docket 73-2327.,641
• Citation: 499 F.2d 1155
• Parties: 414 THEATER CORP., Appellee, v. Patrick MURPHY, Individually and as Police Commissioner of the City of New York, Bess Myerson, Individually and as Commissioner of the Department of Consumer Affairs of the City of New York, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

499 F.2d 1155 (1974)

414 THEATER CORP., Appellee, v. Patrick MURPHY, Individually and as Police Commissioner of the City of New York, Bess Myerson, Individually and as Commissioner of the Department of Consumer Affairs of the City of New York, Appellants.

No. 641, Docket 73-2327.

United States Court of Appeals, Second Circuit.

Argued March 4, 1974.

Decided May 17, 1974.

Jesse J. Fine, New York City (Norman Redlich, Corp. Counsel of the City of New York, New York City, Stanley Buchsbaum, Renee Modry, New York City, of counsel), for appellants.

Herbert S. Kassner, New York City, (Kassner & Detsky, New York City), for appellee.

Before LUMBARD, HAYS and OAKES, Circuit Judges.

OAKES, Circuit Judge.

Defendants appeal from the grant by Judge Lasker below of a preliminary injunction proscribing the enforcement against plaintiff of Article 1 of Title B, Chapter 32 of the Administrative Code of the City of New York (article 1).¹ 414 Theatre Corp. v. Murphy, 360 F. Supp. 34 (S.D.N.Y.1973). Appellee brought its action below under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3), alleging that article 1 is unconstitutional on its face and as applied to activity carried on by appellee, activity alleged to be protected by the first amendment. Appellee sought a declaratory judgment of unconstitutionality under 28 U.S.C. § 2201, as well as preliminary and permanent injunctive relief.

Appellee, the operator of an establishment containing coin-operated film machines, first applied to Judge Lasker for preliminary injunctive relief against the enforcement of article 1 in January of 1973. At that time, Judge Lasker "denied the application without prejudice to renewal in order to permit the matter to be litigated in the state courts." Id. at 35. He did so "in the spirit of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and United States ex rel. Goodman v. Kehl, 456 F.2d 863 (2d Cir. 1972) with full awareness that denial was not mandated . . . since no criminal or civil cases involving 414 were pending in the state courts . . ." Id.

The issues being litigated in the state courts also concerned the constitutionality of article 1. This litigation arose in two contexts. Under § B32-21.0 of article 1, violations of the article are punishable criminally by a fine of up to $500 and imprisonment for not more than six months. The uncontradicted affidavit of appellee below (supported by the facts as found in a case decided by the New York City Criminal Court to be discussed below) indicates that the appellants initiated a series of criminal prosecutions under this section early in 1972, some five years after the introduction of coin-operated movies into New York City. Only then was the operation of these "peep shows" in various types of non-amusement businesses in the mid-Manhattan area, typically in paperback book stores, determined by appellants to be within the reach of the licensing provisions of article 1, five years after the Department of Licenses had already ruled that licenses were not required for such premises. See 1487 Amusement Corp. v. Redlich, 350 F. Supp. 822, 824 (S.D.N.Y.1972).

On the civil side, appellants sought and obtained New York Supreme Court injunctions, the first being issued on July 3, 1972, against various peep show operators; the injunctions required the operators to obtain licenses within 30 days or rid themselves of their coin-operated film machines. Failure to comply would, of course, lead to these operators being held in contempt of court, in addition to the other criminal and civil sanctions to which they had been or could be subjected. It was apparently the litigation involving these injunctions, presenting as it did the opportunity for presentation and decision of the constitutionality of article 1, that caused Judge Lasker to stay his hand initially.

On February 26, 1973, the appeal from one injunction against peep show operators in the State Supreme Court was decided, City of New York v. S & H Book Shop, Inc., 41 A.D.2d 637, 341 N.Y.S.2d 292 (1973), and resulted in reversal of the injunction. The Appellate Division avoided decision on constitutional grounds, finding instead that the City of New York had not demonstrated "a clear right to the drastic remedy of a temporary injunction . . . ." Id., 341 N. Y.S.2d at 293. The Appellate Division indicated that a "clear" right had not been demonstrated apparently because of the lack of probability that the City would prevail on the merits of the action, stating that

On its face, the New York City Administrative Code, § B32-1.0 appears to vest unbridled discretion in the Commissioner to define and determine the standards for granting a license. There is thus presented, a serious question to the constitutionality of the licensing provision which plaintiffs seek to enforce . . . .

Id., 341 N.Y.S.2d at 293.

After this decision was handed down, appellee reapplied to Judge Lasker for preliminary injunctive relief. In granting that relief by decision dated June 28, 1973, and order dated July 11, 1973, Judge Lasker stated his belief that "this application is now ripe for determination" since "the state courts have had ample opportunity to consider the question in related cases and have declined to do so." 360 F.Supp. at 36. This statement, viewed as a decision to proceed rather than abstain, was, we think, correct. The question of abstention is, of course, "entirely separate from the question of granting declaratory or injunctive relief." Lake Carriers' Association v. MacMullan, 406 U.S. 498, 509 n.13, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257 (1972). See Steffel v. Thompson, 415 U.S. 452, 474 n. 21, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Where the state court has deliberately avoided an interpretation of a statute which might save its constitutionality or moot the federal claim, the abstaining federal court may certainly reassert the jurisdiction it was retaining in order to reach the merits. Neither comity nor sound judicial administration require the abstaining federal court to wait indefinitely for state courts to determine the merits. See NAACP v. Gallion, 368 U.S. 16, 82 S.Ct. 4, 7 L.Ed.2d 85 (1961).

On July 20, 1973, nine days after Judge Lasker entered the order granting the preliminary injunction against enforcement of article 1, the New York City Criminal Court handed down a decision in certain consolidated prosecutions previously brought for violations of article 1. People v. Mitchell, 74 Misc.2d 1053, 346 N.Y.S.2d 495 (N.Y.C. Cr.Ct.1973). The Mitchell court, after hearing argument and adducing evidence respecting article 1 and its enforcement, dismissed the complaints by holding

that Sections B32-1.0 and B32-4.0 . . . are unconstitutional on their face in that they subject the exercise of freedoms protected by the First Amendment to the prior restraint of a license without narrow, objective and definite standards to guide the licensing authority.

Id. at 1060, 346 N.Y.S.2d at 502 (emphasis added). The Mitchell decision, from a procedural standpoint, was apparently the result of a motion or motions under NYCPL § 170.30(1)(f). As such, that decision was appealable as a matter of right to the Appellate Division of the New York Supreme Court by the City under NYCPL § 460.10, subd. 1(a) & (c), which requires filing of a motion of appeal within 30 days. Remarkably in view of the appellants' position before us, no appeal from this decision was ever taken. Thus, one could be led to wonder whether the threat of the ordinance is not of more concern to the City than the validity.

To recapitulate, as of July 20, 1973, appellants had been denied injunctive relief to enforce civilly article 1 by the Appellate Division in a decision casting "serious" doubt on the constitutionality of that provision, a federal district court had granted a preliminary injunction against the enforcement of article 1 by appellants on the ground of probable unconstitutionality, and a City court had ruled, with no appeal taken from its decision, that article 1 was overbroad and therefore unconstitutional on its face.

At this point the initial question we must face is whether the decision in People v. Mitchell, supra, renders the case before us moot, or whether, in other words, any "case or controversy" under Article III can still be said to exist. It is not sufficient that the case did exist when the action was brought; generally speaking, "The rule in federal cases is that an actual controversy must be extant at all stages of review. . . . See, e. g., Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); SEC v. Medical Comm. for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972); United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950)." Steffel v. Thompson, 42 U.S.L.W. at 4359 n.10, 94 S.Ct. at 1216. But the dismissal of a criminal complaint on the basis of the unconstitutionality of the law allegedly violated is, strictly speaking, only a determination of the rights of the defendant who is a party thereto. Nothing precludes the City from bringing other criminal actions under the ordinance already found unconstitutional in one action, although the probable effect of stare decisis will be another dismissal.² The City, moreover, might seek to enforce the ordinance through civil enforcement actions rather than criminal actions, something indeed which it has just done. See City of New York v. Bullard, N.Y.L.J., Dec. 3, 1973, at 2, col. 4 (Sup.Ct.); City of New York v. Pink Pussy Cat, Inc., N.Y.L.J., Dec. 3, 1973, at 2, col. 3 (Sup.Ct.); City of New York v. Cohen, N.Y.L.J., Sept. 20, 1973, at 2, col. 2 (Sup.Ct.) Thus, the issue has hardly been mooted.³

What remains then is the question of the propriety of preliminary injunctive relief. The court below applied the principal proper test as to preliminary injunctive relief — the demonstration of probable success on the merits and...