American Booksellers Ass'n, Inc. v. Webb

• Citation: 590 F. Supp. 677
• Decision Date: 27 June 1984
• Docket Number: Civ. A. No. C84-697A.
• Parties: AMERICAN BOOKSELLERS ASSOCIATION, INC., et al., Plaintiffs, v. James WEBB, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

590 F. Supp. 677

AMERICAN BOOKSELLERS ASSOCIATION, INC., et al., Plaintiffs, v. James WEBB, et al., Defendants.

Civ. A. No. C84-697A.

United States District Court, N.D. Georgia, Atlanta Division.

June 27, 1984.

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J. Kirk Quillian, William N. Withrow, Jr., H. Carol Morris, Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., Michael A. Bamberger, Jeffrey A. Mitchell, Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey, New York City, for plaintiffs.

George M. Weaver, Asst. Atty. Gen., Sibley & Weaver, Susan B. Forsling, Asst. County Atty., Atlanta, Ga., Jerry L. Gentry, Joseph C. Parker, Marietta, Ga., Sam F. Little, Terry L. Miller, Dalton, Ga., George P. Dillard, Decatur, Ga., for defendants.

ORDER

SHOOB, District Judge.

I. Introduction

This is an action for declaratory and injunctive relief challenging the constitutionality of recently enacted provisions of Georgia law governing the distribution and display of sexually explicit materials to minors. Plaintiffs are various associations of booksellers, publishers, periodical distributors, college stores, and retailers, as well as two bookstores and an author, all of whom contend they will be directly and adversely affected by the new law.¹ Defendants are various local solicitors, sheriffs, and police officials who have authority to enforce the law.²

The provisions challenged by plaintiffs appear in Section 3 of Act No. 1319 (the "Act"), 1984 Ga.Laws 1495, 1496-1501, approved April 5, 1984, to take effect July 1, 1984. See O.C.G.A. § 1-3-4(a)(1) (Michie 1982) (governing effective date of legislative Acts). Section 3 of the Act amends Part 3 of Article 3 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to the sale and distribution of harmful materials to minors, by repealing the current O.C.G.A. §§ 16-12-102 through XX-XX-XXX (Michie Supp.1983) and inserting in lieu thereof new Code sections 16-12-102 through XX-XX-XXX. (The new Code sections being challenged here are set out in full in the Appendix to this order. Amendments to the current law are indicated by striking through words deleted by the new Act and underlining words added by the new Act. Insignificant variations in punctuation and capitalization are not indicated.)

Plaintiffs filed their complaint on April 6, 1984, together with a motion for preliminary injunction or, in the alternative, for temporary restraining order. Since the challenged statute does not become effective until July 1, 1984, it was unnecessary to set the matter down for an immediate hearing, and the Court determined that the most expedient approach would be to consolidate trial on the merits with the hearing on the motion for preliminary injunction. Fed.R.Civ.P. 65(a)(2). Accordingly, following a short discovery period, this action came on for trial before the Court on May 31-June 1, 1984.

II. Plaintiffs' Claims

Plaintiffs bring this action pursuant to the first, fifth, and fourteenth amendments to the United States Constitution, 42 U.S.C. § 1983, and Article III, Section V, Paragraph III of the Georgia Constitution. Their complaint includes seven counts.

Count I of the complaint alleges that Section 3 of the Act is unconstitutionally overbroad in that it prohibits the furnishing or display of materials to minors that is not obscene as to minors. Count II alleges that Section 3, by virtue of its display provisions, violates adults' first amendment right of access to materials that are not obscene as to them. Count III alleges that Section 3 effects an unconstitutional prior restraint on free speech insofar as it restricts both the display and distribution of materials that are constitutionally protected both as to minors and adults. Count IV alleges that Section 3 is unconstitutionally vague in that it fails to provide fair notice as to what constitutes a criminal offense under the Act. Count V alleges that Section 3's exemption of some libraries from its scope has no rational basis and therefore unconstitutionally denies plaintiffs the equal protection of the law. Count VI alleges that Section 3's blanket prohibition of any person's furnishing covered materials to minors violates a parent's fundamental right to rear his child free from interference by the state. Finally, Count VII alleges that Section 3 violates the Georgia Constitution's prohibition of the passage of any bill that refers to more than one subject matter.

III. Abstention

Before reaching the merits of plaintiffs' claims, the Court must address the threshold issue raised by defendants' motion to abstain, in which defendants contend that, under the standards announced in Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), this Court should abstain from deciding the claims asserted by plaintiffs in favor of a prior state court resolution of certain unsettled questions of state law.

In Pullman Co. v. Railroad Commission of Texas, 33 F.Supp. 675 (W.D.Tex. 1940), the company asked a federal district court to enjoin enforcement of an order of the Texas Railroad Commission, claiming both that the order denied its rights under the fourteenth amendment to the United States Constitution and that it was invalid under Texas law. Without reaching the federal constitutional issues, the district court held that the challenged order was unauthorized under Texas law and enjoined its enforcement. 33 F.Supp. at 677-78. On direct review the Supreme Court held that the district court should have abstained from deciding the case. Since "the last word on the statutory authority of the Railroad Commission in this case, belongs neither to us nor to the district court but to the supreme court of Texas," only abstention in favor of a state court adjudication of the state law issue would "avoid the waste of a tentative decision as well as the friction of a premature constitutional adjudication." Pullman, supra, 312 U.S. at 500, 61 S.Ct. at 645.

As subsequently formulated by the Supreme Court, Pullman-type abstention may be proper "where resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law...." Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50 (1965); see also Duke v. James, 713 F.2d 1506, 1510 (11th Cir.1983). Defendants argue that two claims raised by plaintiffs independently warrant the application of Pullman abstention here: first, plaintiffs' contention in Count VII of their complaint that the Act is invalid under the Georgia Constitution; and second, plaintiffs' claims in Counts II and III of the complaint that the Act's display provisions violate adults' first amendment rights. The Court will address the abstention question with respect to each of these claims in turn.

A. The State Constitutional Issue

Sections 1 and 2 of Act No. 1319, 1984 Ga.Laws 1495, 1495-96, amend O.C.G.A. §§ 16-6-4(b) and 16-6-5, relating to the punishment for child molestation and enticing a child for indecent purposes, respectively; whereas Section 3, which plaintiffs challenge here, relates solely to the sale and display of materials deemed harmful to minors. Plaintiffs contend that the Georgia General Assembly's combination of these three sections into a single legislative Act violates the prohibition contained in Ga. Const. art. III, § V, ¶ III that "no bill shall pass which refers to more than one subject matter or contains matter different from what is expressed in the title thereof."

Defendants respond that this is obviously a pure question of state law, the resolution of which might make it unnecessary to reach the federal constitutional issues. Hence, defendants conclude, this Court should abstain and give the state courts an opportunity to render an authoritative decision on the state constitutional issue.

Opposing abstention on this ground, plaintiffs cite language from the Eleventh Circuit's recent decision in Duke v. James, 713 F.2d 1506, 1510 (11th Cir. 1983), indicating that abstention should not be viewed "as a tool merely to abstract from the state courts an alternative state law ground for the judgment." The Duke court, however, went on to state that such a use of abstention is inappropriate only "when state law is clear." Id. In the instant case, it is by no means clear that the challenged Act comports with the state constitutional provision regarding bills that refer to more than one subject matter.³ Such a situation, where an unsettled question of state constitutional law may entirely moot plaintiffs' federal constitutional claims, presents a classic case for abstention.

Plaintiffs also cite the Supreme Court's recent decision in Hawaii Housing Authority v. Midkiff, ___ U.S. ___, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984), for the proposition that abstention is not required simply because interpretation of the state constitution may obviate resolution of the federal constitutional questions. Midkiff, however, involved a state constitutional provision that merely paralleled the federal constitutional provision at issue, and, as the Court there noted, "abstention is not required for interpretation of parallel state constitutional provisions." 104 S.Ct. at 2327 n. 4 (citations omitted).

Where, on the other hand, the case may turn on the interpretation of some specialized state constitutional provision, abstention is appropriate. Harris County Comm'rs Court v. Moore, 420 U.S. 77, 84-85, 95 S.Ct. 870, 874-875, 43 L.Ed.2d 32 (1975); Reetz v. Bozanich, 397 U.S. 82, 87, 90 S.Ct. 788, 790, 25 L.Ed.2d 68 (1970). The state constitutional provision at issue in the instant case is obviously a specialized provision that has no parallel in the federal Constitution. It appears to the Court, therefore, that this is an appropriate situation for Pullman -type abstention.

In a final effort to avoid abstention on the...