Age of Majority Educational Corp. v. Preller, s. 73-1394

• Decision Date: 05 December 1973
• Docket Number: 73-1395,Nos. 73-1394,s. 73-1394
• Citation: 512 F.2d 1241
• Parties: The AGE OF MAJORITY EDUCATIONAL CORPORATION, and Glen Burnie Adult Sex Education Club, by its President, David Wilder, Appellants, v. David PRELLER et al., Appellees. MODERN SOCIAL EDUCATION, INC., and Maryland Adult Sex Education Club, by its President, Richard Kivert, Appellants. v. David PRELLER et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1241

512 F.2d 1241

The AGE OF MAJORITY EDUCATIONAL CORPORATION, and Glen Burnie

Adult Sex Education Club, by its President, David

Wilder, Appellants, v. David PRELLER et al., Appellees.

MODERN SOCIAL EDUCATION, INC., and Maryland Adult Sex

Education Club, by its President, Richard Kivert, Appellants. v. David PRELLER et al., Appellees.

Nos. 73-1394, 73-1395.

United States Court of Appeals Fourth Circuit.

Argued Dec. 5, 1973. ^*

Resubmitted In Banc Oct. 10, 1974.

Decided March 4, 1975.

Burton W. Sandler, Towson, Md., for appellants in No. 73-1394.

William E. Seekford, Towson, Md., for appellants in No. 73-1395.

Thomas G. Young, Asst. Atty. Gen. of Md. (Francis B. Burch, Atty. Gen., on brief), for appellees in Nos. 73-1394 and 73-1395.

Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, In Banc.

WINTER, Circuit Judge:

On the authority of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the district court dismissed the complaints of two allegedly nonprofit "sex education" clubs, which had instituted suit before they began operations seeking a declaratory decree that various provisions of Article 66A (the Maryland motion picture censorship statute) and Article 27 (the Maryland criminal code) of the Annotated Code of Maryland were unconstitutional, and an injunction to restrain defendants from issuing criminal process, including search warrants, from making arrests or seizures and from instituting prosecutions against plaintiffs by reason of their exhibition and sale of printed sexually-oriented materials and films depicting explicit sexual activity. The district court also declined to request that a statutory three-judge court be convened to adjudicate plaintiffs' claims that certain of the Maryland statutes were unconstitutional as applied to allegedly bona fide educational organizations. Additionally, the district judge denied plaintiffs' motion to disqualify him on the ground that he was personally biased and prejudiced against plaintiffs. Finally, the district court declined to permit one of the plaintiffs to file an amended complaint. All of these rulings are sought to be reviewed in these appeals.

We sustain all of the rulings of the district court, albeit one for reasons different from those assigned by it, except dismissal of the complaints insofar as plaintiffs seek declaratory judgments. The holding in Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), decided after the decision of the district court, requires the latter result. Accordingly, we affirm in part and reverse in part, and remand for further proceedings.

I.

In a thorough and complete opinion, Modern Social Education, Inc. v. Preller, 353 F.Supp. 173 (D.Md.1973), the district court set forth the allegations of plaintiffs' complaints and the context in which the litigation was instituted, all, as the district court so aptly characterized, as "another battle in the long standing war between enforcement officials of the State of Maryland and those who seek to show or distribute sexually oriented films or printed materials in the City of Baltimore" and its southern environs. 353 F.Supp. at 174. The district court recounted how, immediately after a three-judge district court had upheld the validity of Maryland motion picture censorship law, including its application to the exhibition of motion pictures in coin-operated machines to individuals in private booths, plaintiffs were incorporated, purportedly as nonprofit educational corporations, and made plans to operate "sex education" clubs which admitted as members all applicants except law enforcement officers who would pay the membership fee. Members obtained the privilege of viewing films of explicit sexual activity upon payment of other charges and of purchasing sexually-oriented printed material. The clubs were located in singularly inappropriate locations for bona fide educational institutions, and, indeed, were in the same locations where other enterprises, unbashedly commercial and not educational, had been located until their operations were suspended as the result of the activities of law enforcement personnel in carrying out the prohibitions of Maryland's motion picture censorship and obscenity laws.

We need not recount the facts in this opinion. Reference to that of the district court suffices except to point out that while plaintiffs were not only assiduous in timing the institution of litigation in the district court so that filing of the suits preceded actual operations and the possibility that plaintiffs would be prosecuted in a state court, plaintiffs were also successful in controlling the sequence of events. When the complaints were filed, the fact is that no prosecutions against plaintiffs had begun in any Maryland court under any Maryland statute.

II.

Younger v. Harris held that, when prosecution under a state statute has begun, the possible unconstitutionality of that statute does not justify an injunction against good attempts to enforce it absent a showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief. 401 U.S. at 54, 91 S.Ct. 746. The main prop of the holding was the strong federal policy "to permit state courts to try state cases free from interference by federal courts." 401 U.S. at 43, 91 S.Ct. at 750. This policy, in turn, is grounded upon the general equitable doctrine that equity should not interpose its decree where the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief, and upon the accepted concept of "comity," that is, "a proper respect for state functions, a recognition ... that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." 401 U.S. at 44, 91 S.Ct. at 750.

Of course in Younger, an indictment under California law had been returned against Harris before he sought to invoke federal equitable relief so that there was no occasion for Younger to decide if the special principle of nonexercise of federal jurisdiction which it restated had any application when a state prosecution was imminent, anticipated, or threatened, but not yet begun, when federal litigation was instituted. 401 U.S. at 41, 91 S.Ct. 746. We, however, had occasion to consider this question in Joseph v. Blair, 482 F.2d 575 (4 Cir. 1973), decided several months after the district court decided the instant cases. There, we held that the Younger special principle of nonexercise of federal jurisdiction "neither authorized nor required the non-exercise of federal jurisdiction" when it appears that "there is neither criminal nor civil litigation pending in a state court in which questions sought to be raised in federal litigation by the same parties or those in privity with them are present." 482 F.2d at 578. See also Lynch v. Snepp, 472 F.2d 769 (4 Cir. 1973). And this interpretation of Younger is confirmed by the analysis of its holding in Steffel v. Thompson, supra. Thus, we are constrained, consistent with our prior holdings, to disagree with the district court's conclusion in the instant cases that " Younger v. Harris bars the granting of federal injunctive relief in a case such as the present one in which criminal prosecution of the plaintiffs not only was expected and imminent at the time the federal action was filed but also was commenced within a short time thereafter." (Emphasis added.) 353 F.Supp. at 180.

It does not follow, however, that reversal of the decree dismissing the complaints insofar as they sought injunctive relief is required. Younger v. Harris clearly recognizes that, even aside from the special rule of nonexercise of federal jurisdiction when a plaintiff seeks to enjoin a pending state prosecution, the granting or withholding of equitable relief is to be determined by general principles of equity. Our decision in Joseph v. Blair also recognizes this principle. There, we affirmed the grant of interim equitable relief by Judge Merhige, where no state prosecution was pending, upon his finding that plaintiffs would suffer irreparable injury, if injunctive relief were denied; but in reversing Judge Kellam's dismissal of the complaint on the authority of Younger, even though no state prosecution was pending, we did not direct the granting of interim or permanent equitable relief. Rather, we directed further proceedings and indicated in note 6, 482 F.2d at 580, that other considerations might well justify the granting or withholding of an injunction. The principle is important because we are persuaded on the record before us that plaintiffs must be denied equitable relief at least on the familiar, equitable doctrine of unclean hands. ^**

As the opinion of the district court sets forth, the constitutionality of Maryland's obscenity laws and motion picture censorship law was fully established at the time that plaintiffs were incorporated, instituted suit, and began operations. 353 F.Supp. at 174-76. True it is that, in Star v. Preller, 413 U.S. 905, 93 S.Ct. 3054, 37 L.Ed.2d 1016 (1973), Star v. Preller, 352 F.Supp. 530 (D.Md.1972) (Star I), upholding the validity of the motion picture censorship law, was subsequently vacated and remanded for reconsideration in the light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), et al.-only to be upheld again in Star v. Preller, 375 F.Supp. 1093 (D.Md.1974), aff'd 419 U.S. 956, 95 S.Ct. 217, 42 L.Ed.2d 173 (1974) (per curiam). But the fact is that at the times of incorporation, filing suit and beginning operations, decrees of a court of competent jurisdiction upholding the constitutional validity of both Maryland statutes were outstanding and unreversed. As the...