AMERICAN BOOKSELLERS ASS'N, INC. v. Webb

• Decision Date: 20 February 1987
• 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

654 F. Supp. 503

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.

February 20, 1987.

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

Gibson Dean, II, Buford, Ga., for defendants Dodd, Crunkleton & Jenkins.

Michael Bowers, George Weaver, Atlanta, Ga., Jerry Gentry, Joseph C. Parker, Marietta, Ga., for defendants Webb, Stynchcombe, Chafin, Bowden, Rivers, Hutson, Hightower, Craft, Williams, Davis & Lowe.

George P. Dillard, Decatur, Ga., for defendants Jarvis & Burgess.

Marva Jones Brooks, Atlanta, Ga., for defendant Napper.

Thomas O. Davis, Decatur, Ga., Susan B. Forsling, Atlanta, Ga., Sam F. Little, Terry L. Miller, Dalton, Ga., Thomas O. Davis, Decatur, Ga., for defendant Matthews.

ORDER

SHOOB, District Judge.

This order will resolve the sole remaining issue in plaintiffs' challenge to O.C.G.A. §§ 16-12-102-16-12-104 (the "Act"). By order dated September 26, 1986, the Court declared unconstitutional the Act's display provision and the library exception. 643 F.Supp. 1546. Throughout the course of this case, plaintiffs have maintained that, if any portion of the Act is unconstitutional, the entire Act must fall. Addressing this issue in its previous order, the Court stated the following:

The Georgia legislature has ... created a general presumption of severability. O.C.G.A. § 1-1-3. In addition, although divining legislative intent is never an exact science, the Court has little trouble concluding that the legislature would desire to have the definition, distribution, and exhibition provisions of the Act severed from the unconstitutional display provision. The library exception presents a significantly closer question, however. Arguably, severing the library exception from the remainder of the Act would contravene the legislature's intention to exempt libraries from criminal liability. It is possible, however, that once the display provision is stricken libraries would face little practical risk of prosecution. The existing record fails to address this issue adequately. Now that the scope of the Court's ruling on the constitutional issues is clear, the parties will be better able to address the issue of severability.

Id. at 1556.

The parties have filed the required briefs, and the Court has concluded that the entire statute must fall because of the library exception. Although it is true that striking the display provision greatly reduces the risk of prosecution facing libraries, it is possible that libraries could be prosecuted under the distribution provision.¹ In light of this possibility, the presumption of severability is of little help here. See, e.g., United States v. Jackson, 390 U.S. 570, 585 n. 27, 88 S.Ct. 1209, 1218 n. 27, 20 L.Ed.2d 138 (1968). Indeed, the presumption is rebutted by a cardinal rule of statutory construction.

As defendants concede, there is a general rule providing that where, as here, an exception to a criminal statute is invalid, the entire criminal statute must be struck. Georgia Southern & Florida Railway Co. v. Odom, 242 Ga. 169, 249 S.E.2d 545 (1978); see also Davis v. Wallace, 257 U.S. 478, 42 S.Ct. 164, 66 L.Ed. 325 (1922); Sutherland Stat. Const. § 44.13 (4th Ed.). The reason for this is simple: by enacting an exception, a legislature manifests an intent to exempt a protected class from criminal liability. Thus, in this case, allowing the Act to stand without the library exception would contravene the legislature's intent by expanding the ambit of criminal liability.²

Even though the Court has concluded that the library exception is not severable, it is reluctant to strike the constitutional definition, exhibition, and distribution provisions. These provisions represent a valid attempt by the legislature to protect the youth of Georgia from unsuitable materials. The Court had anticipated that the legislature would enact an amendment that would render moot the severability issue. Defendants have reported, however, that no such amendment is pending and that an appeal is planned. Under these circumstances, although plaintiffs are entitled to injunctive relief as to all provisions of the Act, the Court thinks it advisable to stay until the resolution of the appeal that portion of the injunction involving the constitutional definition, exhibition, and distribution components. Such a stay will enable defendants to continue enforcing the constitutional provisions of the Act, and, as conceded by plaintiffs, will not result in prejudice...