Almodovar v. Reiner, 87-5521

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before KENNEDY, SKOPIL and NELSON; NELSON
• Citation: 832 F.2d 1138
• Parties: Norma Jean ALMODOVAR and R.N. Bullard, Plaintiffs-Appellants, v. Ira REINER, Burton J. Schneirow, Darryl Gates, Joseph Conti, and James G. Como, Defendants-Appellees.
• Docket Number: No. 87-5521,87-5521
• Decision Date: 17 November 1987

Page 1138

832 F.2d 1138 Norma Jean ALMODOVAR and R.N. Bullard, Plaintiffs-Appellants,
v.
Ira REINER, Burton J. Schneirow, Darryl Gates, Joseph Conti,
and James G. Como, Defendants-Appellees. No. 87-5521. United States Court of Appeals,
Ninth Circuit. Submitted Oct. 8, 1987.
Decided Nov. 17, 1987.

Page 1139

Stanley Fleishman, Los Angeles, Cal., for plaintiffs-appellants.

Ladell H. Muhlestein, Los Angeles, Cal., for defendants-appellees Reiner and Schneirow.

Jack L. Brown, Los Angeles, Cal., for defendants-appellees Gates, Como and Conti.

Appeal from the United States District Court for the Central District of California.

Before KENNEDY, SKOPIL and NELSON, Circuit Judges.

NELSON, Circuit Judge:

Appellants contend that using California's pandering and prostitution statutes to prevent them from making sexually explicit films violates their federal and state constitutional rights. Because the California Supreme Court had not construed the two statutes as applying to filmmakers, and because a similar challenge is currently before the California Supreme Court, the district court abstained following the doctrine

Page 1140

of Railroad Commissioner v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The district court then dismissed the case "because the plaintiffs raise state constitutional claims which mirror their federal constitutional claims." We conclude that the district court properly abstained under the Pullman doctrine, but that it should not have dismissed the action.

Abstention decisions are reviewed under a modified abuse of discretion standard. C-Y Development Co. v. Redlands, 703 F.2d 375, 377 (9th Cir.1983). The decision not to abstain is within the trial court's discretion. Id. But unless certain exceptional circumstances are present, a district court has little or no discretion to abstain. Id. Whether these requirements were met is a mixed question of fact and law, that is more law than fact, and is therefore reviewed de novo. See United States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

I. Abstention

Abstention based on the doctrine of Railroad Commissioner v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), is strictly limited. Courts may not abstain from deciding claims unless

(1) The complaint "touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open."

(2) "Such Constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy."

(3) The possibly determinative issue of state law is doubtful.

Canton v. Spokane School Dist. No. 81, 498 F.2d 840, 845 (9th Cir.1974) (quoting Pullman, 312 U.S. at 498-99, 61 S.Ct. at 644-45). Because each of these elements is present, we affirm the district court's decision to abstain.

This Circuit stated in Pearl Investment Co. v. San Francisco, 774 F.2d 1460, 1463 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 2891, 90 L.Ed.2d 978 (1986), that for Pullman abstention purposes, a challenge to an anti-obscenity statute concerned "arguably more sensitive social issues" than land use planning, which is regularly recognized as a sensitive issue of social policy. Similarly, we conclude that the regulation of prostitution and of sexually explicit films are controversial issues of great local interest. This interpretation of the "sensitive social policy" prong of Canton recognizes that abstention protects state sovereignty over matters of local concern, out of considerations of federalism, and out of "scrupulous regard for the rightful independence of state governments." Pullman, 312 U.S. at 501, 61 S.Ct. at 645.

Although courts have avoided abstention in first amendment challenges, see Procunier v. Martinez, 416 U.S. 396, 404, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974), there is no absolute rule against abstention in first amendment cases. The fears of chill that justify our preference against abstention in first amendment cases are not present in this instance. See Procunier, 416 U.S. at 405, 94 S.Ct. at 1807; Baggett v. Bullitt, 377 U.S. 360, 378-79, 84 S.Ct. 1316, 1326-27, 12 L.Ed.2d 377 (1964); J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482, 488 (9th Cir.1984) rev'd on other grounds sub nom Brocket v. Spokane Arcades, 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). This case poses few dangers of first amendment chill. The issue can be adjudicated in a single state court proceeding, and the litigants need not undergo the expense or delay of a full state court litigation because other parties are already presenting the issue to the California Supreme Court. That a pending state court litigation between other parties might resolve the issues presented weighs in favor of abstention. See University of Oklahoma Gay People's Union v. Board of Regents, 661 F.2d 858 (10th Cir.1981); Classen v. Weller, 516 F.Supp. 1243 (N.D.Cal.1981).

All of plaintiff's...