Postscript Enterprises, Inc. v. Westfall

• Decision Date: 27 August 1985
• Docket Number: No. 84-2382,84-2382
• Citation: 771 F.2d 1132
• Parties: POSTSCRIPT ENTERPRISES, INC. and Transcontinental Leasing Corp., Appellants, v. Hon. George F. WESTFALL, as Prosecuting Attorney of St. Louis County, Missouri, and Col. Gilbert Kleinknecht, as Commanding Officer of the St. Louis County Police Department, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1132

771 F.2d 1132

POSTSCRIPT ENTERPRISES, INC. and Transcontinental Leasing Corp., Appellants, v. Hon. George F. WESTFALL, as Prosecuting Attorney of St Louis County, Missouri, and Col. Gilbert Kleinknecht, as Commanding Officer of the St. Louis County Police Department, Appellees.

No. 84-2382.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1985.

Decided Aug. 27, 1985.

Murray A. Marks, St. Louis, Mo., for appellants.

Robert H. Grant, Clayton, Mo., for appellees.

Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and WOODS, ^* District Judge.

McMILLIAN, Circuit Judge.

Postscript Enterprises, Inc. (Postscript), and Transcontinental Leasing Corp. (Transcontinental) appeal from a final order entered in the District Court for the Eastern District of Missouri granting appellees' motion for summary judgment and dismissing appellants' complaint with prejudice. Appellants brought an action pursuant to 42 U.S.C. Sec. 1983 (1982) and 28 U.S.C. Sec. 2201 (1982) seeking a declaration that Mo.Rev.Stat. Secs. 542.281, .301 and 573.010, .030, .060, .070 (1978) are unconstitutional that Mo.Rev.Stat. Sec. 542.281, .301 do not apply to appellants' property and seeking injunctive relief requiring that appellees return all of Transcontinental's equipment seized at Postscript's place of business. ¹ Subject matter jurisdiction was based upon 28 U.S.C. Sec. 1343(3), (4) (1982). The district court held that it lacked Article III jurisdiction to address the constitutionality of Sec. 573.010, .030, .060, .070; that Transcontinental's equipment was subject to seizure under Sec. 542.281-1(2), but not forfeiture under Sec. 542.301; and that it would not reach the constitutionality of Sec. 542.281-1(1) because it was in the nature of a defense to prosecution under the statute and thus not properly before the court. The district court also found that because appellees had returned Transcontinental's equipment, appellants' request for injunctive relief was moot.

For reversal appellants argue that the district court erred in (1) holding that it lacked jurisdiction to address the constitutionality of Sec. 573.010, .030, .060, .070, (2) declining to address the constitutionality of Sec. 542.301 after acknowledging that it had jurisdiction to do so, and (3) holding that appellants' claim that the seized films were not within the ambit of Sec. 542.281-1(1) was in the nature of a defense to prosecution under the statute and thus was not a proper claim for declaratory relief. For the reasons discussed below, we affirm in part, reverse in part and remand for further proceedings.

The facts in this case are fully outlined in the district court's memorandum opinion, Postscript Enterprises, Inc. v. Westfall, 596 F.Supp. 205, 206-08 (E.D.Mo.1984). Postscript operates the Adult Book Store in Bridgeton, Missouri. The store is divided into two sections. The front section is open to any adult; the back section is accessible only to those adults who purchase a "membership." Any adult who presents some identification and signs a statement that he or she is not a police officer may become a member for $1.00 per year. Minors are not permitted to enter the front or back sections of the store and signs to such effect are prominently posted.

The back section of the store is located behind a divider and is accessible only through an electronically controlled door. The rear section contains fifteen booths and inside each booth is a movie projector. Members enter these booths for the purpose of viewing "adult" films. In order to view a segment of a particular film, an individual must deposit a quarter into the projection unit. The films are silent and contain no titles or credits. All of the movie projectors are marked "Property of Transcontinental Leasing Corporation."

On three separate occasions within a span of twelve months, a male St. Louis County or Bridgeton Police Department detective entered the Adult Book Store and viewed all of the films located in the back section of the store. Immediately after each viewing, the detective who saw the films filed an affidavit describing each film in detail and an application for a search warrant. A Missouri trial court issued three search warrants following separate adversarial hearings conducted pursuant to Mo.Rev.Stat. Sec. 542.281-5. The search warrants authorized the search of the bookstore and seizure of the films, projectors and booths contained therein. The search warrants were executed by the appropriate law enforcement agencies and the property was seized.

On October 22, 1982, following the execution of the third search warrant, Joseph DeAndrea, an employee of the Adult Book Store, was indicted by a St. Louis County grand jury on a charge of promoting pornography in the second degree in violation of Sec. 573.030-1(1). Appellants allege that following the execution of the third search warrant, Postscript itself was charged with promoting pornography in the second degree, found guilty and fined $100 plus costs. Appellees contend that the record does not substantiate appellants' pornography charge and thus appellants' factual allegation should not be taken into consideration. We disagree.

"This court may rely on any part of the record of the district court proceedings in rendering judgment on the appeal, including parts that have not been included in the clerk's record or appendix." 8th Cir.R. 7(c)(3) (1981); see Fed.R.App.P. 30(b). Appellants refer us to the Defendants' Exhibits K, L and Q in the district court record. These exhibits are respectively affidavits of detective Charles Scherer of the Bridgeton Police Department, detectives Tom Vohsen and J. Schupp of the St. Louis County Police Department. Each affidavit explicitly states that "Postscript Enterprises, Inc. ... was indicted by the St. Louis County grand jury for promoting pornography in the second degree" in violation of Sec. 573.030.

Appellants filed the present action in the district court following the execution of the third search warrant. The district court dismissed appellants' claims with prejudice.

Appellants first argue that the district court erred in holding that it lacked jurisdiction to address the constitutionality of Sec. 573.010, .030, .060, .070 because no case or controversy existed between the parties regarding those sections. Appellants argue that there was a specific threat of prosecution and a pattern of past prosecution satisfying the case or controversy requirement of Article III of the United States Constitution.

Before addressing the merits of a constitutional challenge to state action, a court must decide whether the party has standing to assert the constitutional rights in question. See Carey v. Population Services International, 431 U.S. 678, 682, 97 S.Ct. 2010, 2014, 52 L.Ed.2d 675 (1977). " '[T]o entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he [or she] must show that he [or she] has sustained or is immediately in danger of sustaining a direct injury as the result of that action.' " Laird v. Tatum, 408 U.S. 1, 13, 92 S.Ct. 2318, 2325, 33 L.Ed.2d 154 (1972), citing Ex Parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937). " '[O]ne does not have to await the consummation of threatened injury to obtain preventative relief. If the injury is certainly impending that is enough.' " Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979), citing Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923). "[I]t is not necessary that [the plaintiff] first expose himself [or herself] to actual arrest or prosecution to be entitled to challenge a statute that he [or she] claims deters the exercise of his [or her] constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974). As we stated in Postscript Enterprises, Inc. v. Whaley, 658 F.2d 1249, 1252 (8th Cir.1981), with respect to a municipal ordinance prohibiting the sale of contraceptives and prophylactics,

[the statute] inflicts on appellant "injury in fact" that satisfies Article III's case-or-controversy requirement since the legal duties created by the ordinance are addressed directly to vendors such as appellant. It is obliged either to heed the statutory prohibition, thereby incurring a direct economic injury through the constriction of its market, or to disobey the statutory command and suffer legal sanctions.

See also Craig v. Boren, 429 U.S. 190, 194, 97 S.Ct. 451, 455, 50 L.Ed.2d 397 (1976) (Plaintiff beer vendor alleged sufficient standing to challenge the constitutionality of Oklahoma statute prohibiting the sale of beer to males under the age of 21 and females under the age of 18 where vendor would either sustain economic injury or lose her license as a result of the statute's operation.).

In the present case Postscript exhibits "adult" films which makes it susceptible to prosecution under Sec. 573.030, .060. Appellants argue on the merits that Sec. 573.030 and .060, which prohibit the promotion of pornographic material and public display of sexually explicit material, are unconstitutional as applied to them. For the purpose of satisfying the injury in fact requirement of Article III, we cannot find any relevant distinction between appellants' status as the provider of a product in Postscript Enterprises, Inc. v. Whaley, 658 F.2d 1249, and appellants' status as the provider of a service in the present case. In both instances appellants must either "heed the statutory prohibition, thereby incurring a direct economic injury through the constriction of its market, or ... disobey the statutory command and suffer legal sanctions." Id. at 1252. We therefore conclude that Sec. 573.030 and .060 inflict on appellants sufficient injury in fact to satisfy Article III's case or controversy requirement. We also hold that...