45 648 Doran v. Salem Inn, Inc 8212 337

Decision Date30 June 1975
Docket NumberNo. 74,74
Citation95 S.Ct. 2561,422 U.S. 922
Parties. 45 L.Ed.2d 648 Frank DORAN, Appellant, v. SALEM INN, INC., et al. —337
CourtU.S. Supreme Court

Three corporations (M & L, Salem, and Tim-Rob), on August 9, 1973, filed a complaint in District Court, seeking a temporary restraining order, preliminary injunction, and declaratory relief, against Doran, a law enforcement official, claiming that a North Hempstead, N.Y., ordinance proscribing topless dancing, which the corporations had provided as entertainment in their bars, violated their First and Fourteenth Amendment rights. The District Court denied the prayer for a temporary restraining order instanter and set the motion for a preliminary injunction for hearing on August 22. On August 10, M & L, alone of the three corporations, which had theretofore complied with the ordinance, resumed topless dancing, whereupon it was served with criminal summonses. Thereafter, the District Court issued a preliminary injunction against enforcement of the ordinance against the corporations 'pending the final determination of this action.' The Court of Appeals affirmed, holding that the 'ordinance would have to fall' and rejecting Doran's claim that the District Court should have dismissed the complaint on the authority of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and companion cases, which it concluded did not bar relief as to Salem and Tim-Rob, because there had been no prosecution against them under the ordinance. A different result for M & L was not deemed warranted in view of the interests of avoiding contradictory outcomes, of conserving judicial energy, and of having a clearcut method for determining when federal courts should defer to state prosecutions. Doran appealed under 28 U.S.C. § 1254(2), which gives this Court appellate jurisdiction at the behest of a party relying on a state statute held unconstitutional by a court of appeals. Held:

1. The issues, which were neither briefed nor argued, whether § 1254(2) applies to a review of the affirmance of a preliminary injunction or is confined to review of a final judgment, and whether the Court of Appeals in fact held the ordinance unconstitutional, need not be resolved, since this Court has certiorari jurisdiction under 28 U.S.C. § 2103, under which this matter can be reviewed. P. 927.

2. The question of entitlement to relief in the light of Younger v. Harris, supra, and companion cases, should be considered as to each corporation separately and not in the light of contradictory outcomes and other factors relied upon by the Court of Appeals when it lumped the three plaintiffs together. Pp. 927-929.

3. Younger squarely bars injunctive relief and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 bars declaratory relief for M & L in view of the fact that when the criminal summonses were issued on the days immediately following the filing of the federal complaint, the federal litigation was in an embryonic stage and no contested matter had been decided. P. 929.

4. Salem and Tim-Rob, against whom no criminal proceedings were pending, were not subject to Younger's restrictions in seeking declaratory relief. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505. Those two corporations could also seek preliminary injunctive relief without regard to Younger's restrictions, since prior to a final judgment a declaratory remedy cannot afford relief comparable to a preliminary injunction. Pp. 930-931.

5. In the circumstances of this case and in the light of existing case law, the District Court did not abuse its discretion in granting preliminary injunctive relief to Salem and Tim-Rob. Pp. 931-934.

(a) The District Court was entitled to conclude that Salem and Tim-Rob satisfied one of the two traditional requirements for securing a preliminary injunction, viz., showing irreparable injury, because they made uncontested allegations that absent such relief they would suffer a substantial business loss and perhaps even bankruptcy. Pp. 931-932.

(b) The District Court was also entitled to conclude that those corporations satisfied the other traditional requirement for interim relief by showing a likelihood that they would prevail on the merits, since they were, inter alia, challenging (and had standing to challenge, Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222) a 'topless' ordinance as being unconstitutionally overbroad in its application to protected activities at places that do not serve liquor as well as to places that do. See California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342. Pp. 932-934.

Appeal dismissed and certiorari granted; 501 F.2d 18, (2nd Cir.) reversed as to M & L, and affirmed as to Salem and Tim-Rob.

Joseph H. Darago, New Hyde Park, N.Y., for appellant.

Herbert S. Kassner, New York City, for appellees.

Mr. Justice REHNQUIST delivered the opinion of the Court.

Appellant is a town attorney in Nassau County, N.Y., who, along with other local law enforcement officials, was preliminarily enjoined by the United States District Court for the Eastern District of New York from enforcing a local ordinance of the town of North Hempstead. Salem Inn, Inc. v. Frank, 364 F.Supp. 478 (1973), aff'd, 501 F.2d 18 (CA2 1974). In addition to defending the ordinance on the merits, he contends that the complaint should have been dismissed on the authority of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its companion cases.

Appellees are three corporations which operate bars at various locations within the town. Prior to enactment of the ordinance in question, each provided topless dancing as entertainment for its customers. On July 17, 1973, the town enacted Local Law No. 1—1973, an ordinance making it unlawful for bar owners and others to permit waitresses, barmaids, and entertainers to appear in their establishments with breasts uncovered or so thinly draped as to appear uncovered. Appellees complied with the ordinance by clothing their dancers in bikini tops, but on August 9, 1973, brought this action in the District Court under 42 U.S.C. § 1983. They alleged that the ordinance violated their rights under the First and Fourteenth Amendments to the United States Constitution. Their pleadings sought a temporary re- straining order, a preliminary injunction, and declaratory relief. The prayer for a temporary restraining order was denied instanter, but the motion for a preliminary injunction was set for a hearing on August 22, 1973.

On August 10, the day after the appellees' complaint was filed, and their application for a temporary restraining order denied, one of them, M & L Restaurant, Inc., resumed its briefly suspended presentation of topless dancing. On that day, and each of the three succeeding days, M & L and its topless dancers were served with criminal summonses based on violation of the ordinance.1 These summonses were returnable before the Nassau County Court on September 13, 1973. The other two appellees, Salem Inn, Inc., and Tim-Rob Bar, Inc., did not resume the presentation of topless entertainment in their bars until after the District Court issued its preliminary injunction.

On September 5, 1973, appellant filed an answer which alleged that a criminal prosecution had been instituted against at least one of the appellees; the District Court was urged to 'refuse to exercise jurisdiction' and to dismiss the complaint. App. 33.

On September 6, 1973, on the basis of oral argument and memoranda of law, the District Court entered an opinion and order in which it '(found) that (1) Local Law No. 1—1973 of the Town of North Hempstead is on its face violative of plaintiffs' First Amendment rights in that it prohibits across the board nonobscene conduct in the form of topless dancing, and (2) that the daily penalty of $500 for each violation of the ordinance, the prior state court decision validating a similar ordinance the over-breadth of the ordinance, and the potential harm to plaintiffs' business by its enforcement justify federal intervention and injunctive relief.' 364 F.Supp., at 483. The court concluded by enjoining appellant 'pending the final determination of this action . . . from prosecuting the plaintiffs for any violation of Local Law No. 1—1973 . . . or in any way interfering with their activities which may be prohibited by the text of said Local Law.' Ibid. The court did address appellant's Younger contention, but held that the pending prosecution against M & L did not affect the availability of injunctive relief to Salem and Tim-Rob. As for M & L, it concluded that if federal relief were granted to two of the appellees, 'it would be anomalous' not to extend it to M & L as well. Id., at 482.

The Court of Appeals for the Second Circuit affirmed by a divided vote. It held that the 'ordinance would have to fall,' 501 F.2d, at 21, and that the claim of deprivation of constitutional rights and diminution of business warranted the issuance of a preliminary injunction. The Court of Appeals rejected appellant's claim that the District Court ought to have dismissed appellees' complaint on the authority of Younger v. Harris, supra, and its companion cases. As to Salem and Tim-Rob, Younger did not present a bar because there had at no time been a pending prosecution against them under the ordinance. As for M & L, the court thought that it posed 'a slightly different problem,' 501 F.2d, at 22, since the state prosecution was begun only one day after the filing of appellees' complaint in the District Court. The court recognized that this situation was not squarely covered by either Younger or Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), but concluded that the interests of avoiding contradictory outcomes, of conservation of judicial energy, and of a clearcut method for determining when federal courts should defer to state prosecutions,...

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