Birkenshaw v. Haley, Civ. A. No. 4-71302.

• Decision Date: 26 April 1974
• Docket Number: Civ. A. No. 4-71302.
• Parties: Robert BIRKENSHAW, Plaintiff, v. Thomas HALEY et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

409 F. Supp. 13

Robert BIRKENSHAW, Plaintiff, v. Thomas HALEY et al., Defendants.

Civ. A. No. 4-71302.

United States District Court, E. D. Michigan, S. D.

April 26, 1974.

COPYRIGHT MATERIAL OMITTED

Richard Durant, Durant, Talbot, Grant & McQuarrie, Detroit, Mich., for plaintiff.

Howard J. Clyne, Clyne, Clyne & Mosier, Yale, Mich., for defendants.

OPINION ON MOTION FOR PRELIMINARY INJUNCTION

KAESS, Chief Judge.

The Court is herein confronted with a constitutional attack upon a local ordinance which purports to prohibit "topless", and "bottomless", human exposure and "obscene live conduct". The matter is presently considered in the context of a Motion for Preliminary Injunction. Plaintiff attacks the ordinance on its face.

There is no serious dispute as to the facts. The plaintiff operates a bar in the Village of Emmett, St. Clair County, Michigan, under a Class B-Hotel License of the Michigan Liquor Control Commission, with a Dance-Entertainment Permit attached. Both the license and the permit were issued by the Commission after approval by the village council, and both expire on April 30, 1974.

The Village of Emmett is a small, rural community having a population of about three hundred (300) people; the town has to its name one school, one church, and one hotel; the hotel in turn contains the village's one bar, and that bar and its entertainment are the center of the present controversy. In the early part of 1974, the plaintiff allegedly began providing for his patrons that form of entertainment known as "topless" dancing. To say that this innovation aroused the ire of a certain portion of the local residents would be a considerable minimization of the situation. In direct response to objections made to it by various individuals, the village council passed Ordinance 22 which is the subject matter of the present complaint.

In a continuation of their efforts, the village council adopted a resolution objecting to the renewal by the Liquor Control Commission of the plaintiff's license and permit for the 1974-75 licensing year. The objection was based again on the type of entertainment offered at the bar. The Liquor Control Commission has said it will not allow renewal until the village council so recommends.

Both parties to this suit have acted quickly, perhaps too quickly, in responding to the problems with which they were confronted, both in and out of court. The complaint reflects this precipitous approach. The complaint fails to properly differentiate between the individual plaintiff and the corporate entity which the individual plaintiff owns, and which, in turn, is the owner of the property, permit, and license in question. A fair reading of the complaint, however, allows the inference that the individual plaintiff would be exposed to the criminal sanctions of Ordinance 22 as the ". . . operator, employer, agent, or . . . employee of any business" which allows the proscribed entertainment. It is fair to note, however, that this ambiguity might not be tolerated in the event that the Court is requested to render a final decision on the merits of this case. The complaint can also be read so as to raise issues of fraud and estoppel, and a number of issues concerning the role that the village can play in the renewal of the liquor license and entertainment permit. Plaintiff's counsel, however, has represented in open court that the sole issue before the Court is the constitutionality of the ordinance. Counsel will be held to that statement, and there will be neither discussion nor decision of the abandoned issues, most notably those intertwined with the issuance and renewal of the liquor license.

A few preliminary matters merit comment.

It has been held by the Supreme Court that, unless bad faith or other special circumstances are present, a pending state criminal proceeding should not be enjoined, Harris v. Younger, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), nor should a declaratory judgment be issued as to the constitutionality of the statute, Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). Left specifically open in Samuels was the question of whether declaratory relief was precluded when such a prosecution was not pending, and no showing had been made of bad-faith enforcement.

Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505, 42 L.W. 4357 (1974), determined the open question. The petitioner in Steffel had twice been warned to stop handbilling on a public sidewalk, and was threatened with arrest by police if he failed to do so. An action was brought seeking injunctive and declaratory relief based upon the claim that the statute in question was violative of the First Amendment. The court held that the complaint did present an "actual controversy", as required by Article III of the Constitution, and that it was "not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights". 415 U.S. at 459, 94 S.Ct. at 1216, 39 L.Ed.2d at 514, 14 Crl at 3125. The court referred to the familiar test in this area, namely, that the case present "a substantial controversy, between parties of adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment". Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826, 829 (1941). Although there is some dispute as to the nature or the existence of the threat to arrest the plaintiff, there can be little doubt, based upon the totality of the circumstances, that the present matter presents an "actual controversy". This is no hypothetical conflict involving straw men and crusading attorneys. The dispute between the litigants herein is actual, immediate, and real. See, Hamar Theatres v. Cryan, 365 F.Supp. 1312, 13 Crl 2449 (D.C.N.Y.1973).

Defendants argue that this Court should exercise restraint and follow the doctrine of abstention promulgated in Younger. Steffel, however, makes it clear that, insofar as declaratory relief is concerned, considerations of equity, comity, and federalism do not militate against federal declaratory relief in those instances, such as the present, where there is no pending state prosecution. The propriety of preliminary injunctive relief in such instances will be discussed below.

The inevitable discussion of obscenity is now in order. This is an area of the law which has befuddled courts and legislatures from the beginning. Judicial disquietude relative to this problem has increased even more since the Supreme Court rendered its five obscenity opinions in June, 1973. While putting to rest some old issues, these opinions necessarily raised new ones. The efforts of the lower court to deal with these issues are numerous, and have, on occasion, produced results which cannot be reconciled. The leading opinion of the recent obscenity cases was Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and therein the court announced this three-part test of constitutional limitation:

"The basic guidelines for the trier of fact must be: (a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . ., (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." 413 U.S. at 16, 93 S.Ct. at 2610, 37 L.Ed.2d at 425.

Putting aside for a moment the Miller test, the first level of inquiry is this: Does a governmental entity have the power to impose an outright ban on nude or semi-nude public conduct, regardless of the context in which it is presented? The answer is, "No". In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the court was confronted with regulations promulgated not by a legislative body, but by the Department of Alcoholic Beverage Control of the State of California. The regulations prohibited nude or seminude entertainment in those places licensed to sell liquor by the drink. The regulations in LaRue were upheld, but based upon the presence of two factors which are notably absent in the present case. The regulations, which were admittedly overbroad from a purely First Amendment analysis, were particularly aimed at combating these social evils which had resulted from placing inebriated patrons in close proximity to nude or semi-nude entertainers (see 409 U.S. at 111, 93 S.Ct. at 393, 34 L.Ed.2d at 347). The Department responded by promulgating regulations aimed at eliminating the source of the temptation. The regulations were declared valid, based upon the peculiar powers vested in the states by the Twenty-First Amendment:

". . . the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals. In Hostetter v. Idlewild Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 12 L.Ed.2d 350 (1964), the court reaffirmed that by reason of the Twenty-first Amendment `a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.' Still earlier, the court stated in State Board v. Young's Market Co., 299 U.S. 59, 64, 57 S.Ct. 77, 81 L.Ed. 38 (1936):

`A classification recognized by the Twenty-First Amendment cannot be deemed forbidden by the Fourteenth.'" 409 U.S. at 114-115, 93 S.Ct. at 395, 34 L.Ed.2d at 349.

The demonstrable nexus with the Twenty-First Amendment, combined with the fact that the regulations applied only to certain type establishments, was clearly the basis of the court's ruling:

"The substance of the regulations struck down prohibits licensed bars

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