Castle News Co. v. Cahill

• Decision Date: 13 November 1978
• Docket Number: No. 78-C-502.,78-C-502.
• Citation: 461 F. Supp. 174
• Parties: CASTLE NEWS COMPANY, a Wisconsin Corporation, Plaintiff, v. Jerome CAHILL, District Attorney, Waukesha County, Wisconsin, Edward O'Connor, Sheriff, Waukesha County, Wisconsin, Marlyn E. Fisher, Chief of Police, Village of Butler and their agents, employees, successors in office, assistants, and all others acting in concert or cooperation with them, at their direction or under their control, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

461 F. Supp. 174

CASTLE NEWS COMPANY, a Wisconsin Corporation, Plaintiff, v. Jerome CAHILL, District Attorney, Waukesha County, Wisconsin, Edward O'Connor, Sheriff, Waukesha County, Wisconsin, Marlyn E. Fisher, Chief of Police, Village of Butler and their agents, employees, successors in office, assistants, and all others acting in concert or cooperation with them, at their direction or under their control, Defendants.

No. 78-C-502.

United States District Court, E. D. Wisconsin.

November 13, 1978.

Stephen M. Glynn, Shellow & Shellow, Milwaukee, Wis., for plaintiff.

Franklyn M. Gimbel, Gimbel, Gimbel & Reilly, Milwaukee, Wis., for Cahill & O'Connor.

Thomas Balistreri, Asst. Atty. Gen., Madison, Wis., for State.

Terrance E. Davczyk, Kasdorf, Dall, Lewis & Swietlik, Milwaukee, Wis., for Fisher.

MEMORANDUM AND ORDER

WARREN, District Judge.

This case involves constitutional attacks on the Wisconsin Obscenity Statute (Wis. Stat. § 944.21) and a seizure of numerous items under an allegedly defective search warrant. Defendants have requested this Court to abstain under the doctrine created in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Defendant further moves this Court to dismiss the damage claims against defendants Cahill and O'Connor both on the basis of official capacity immunity and on the strict limits of 42 U.S.C. § 1983 liability. This Court declines to abstain for the reasons set out below and, therefore, will consider the merits of plaintiff's constitutional rights.

Plaintiff has filed a motion for a preliminary injunction requesting this Court to enjoin any prosecutions under Wis.Stat. § 944.21 and to order the return of the allegedly obscene material which plaintiff claims was illegally seized. Plaintiff's complaint seeks: a declaratory judgment declaring § 944.21 unconstitutional; damages based upon 42 U.S.C. § 1983; a preliminary injunction enjoining defendants from prosecuting plaintiff under Wis.Stat. § 944.21; return of all materials seized from plaintiff's premises, with the exception of those materials actually viewed by Judge Flores in issuing the warrant; compensatory damages for the loss suffered by plaintiff in the seizure and concomitant disruption of business; punitive damages for violations of plaintiff's constitutional rights; and plaintiff's costs and attorney's fees.

The facts that have developed in this case by way of affidavit and pleadings indicate that the following events occurred leading to the present action. On August 4, 1978, Officer Robert Radovich of the Milwaukee Police Department appeared before Judge Ness Flores, Circuit Judge, Waukesha County, Wisconsin, for the purpose of obtaining a search warrant to search "a one-story brick building with brick veneer front containing office and warehouse space located at 4551 N. 125th Street, Butler, Wisconsin" occupied by the Castle News Company. A transcript of the proceedings held before Judge Flores has been supplied by plaintiff to supplement the record.

Defendant Jerome Cahill, district attorney for Waukesha County, appeared before Judge Flores to present the application for the search warrant at issue. Mr. Cahill presented the search warrant accompanied by the affidavit of Officer Radovich to the effect that he purchased materials from the Castle News Company. The Radovich affidavit incorporates as exhibit "A" a bill of sale # 51623 dated August 3, 1978 from Castle News for $117.58 and an inventory of the purchases covered by the bill of sale marked exhibit "B." The purchase, a cash sale, involved a total of forty different items. The inventory attached to the warrant, as incorporated by the affidavit, indicates that the materials were held in one box with "Bill Jenkins and Al.S." written thereon. The inventory lists forty separate titles covering various magazines, paperback books and films.

The record of the hearing before Judge Flores indicates that one Bill Jenkins, who is in fact Herbert Dole, an agent of the Federal Bureau of Investigation, placed the order evidenced by the August 3, 1978, bill of sale from Castle News. The record indicates that Mr. Jenkins had been working with Officer Radovich and Officer Raymond Stancyck of the Milwaukee vice squad for six months prior to the August 4 hearing.

Officer Radovich testified that he spoke to one Al Seigel at Castle News giving Seigel specific directions as to how to locate the place for delivery of the Dole/Jenkins order. A man who identified himself to be Al Seigel delivered the box to 2020 West Layton Avenue on August 3, 1978, Officer Radovich being present. Officer Radovich then made an inventory of the items delivered in the box.

Officer Radovich indicated those items that he felt were "hard-core" pornography. Officer Radovich indicated, however, that he had not viewed the given films inventoried, but that it was his experience that the films do purport to be the acts depicted in the pictures on the box covers. Judge Flores viewed a film entitled "Christy Gets the Job" and was satisfied that it was pornography as described in Wis.Stat. § 944.21(1)(a). Judge Flores also viewed two magazines entitled "Tri-Orgy" and "One Night Stand" and similarly determined these to be pornography as defined by the Wisconsin Statute. Therefore, Judge Flores determined, after declaring that he had made a fair sampling, that there was probable cause for the search and issued the search warrant in issue in this case.

On August 4, 1978, a search was made of the Castle News Company warehouse and offices located at 4551 N. 125th Street, Butler, Wisconsin. During this search, pursuant to warrant, numerous items were seized. Among these were financial and business records, as permitted by the warrant; books; films; and magazines. A comparison of the inventory of those items purchased on August 3, 1978 with those allegedly pornographic items seized on August 4, 1978, indicates that more items were seized than were contained in the affidavit attached to the warrant.

This action was filed on August 7, 1978, before criminal prosecution was begun against the Castle News Company. The defendants stipulated to stay further action until this Court has an opportunity to rule on the constitutional issues raised by plaintiff. That is the current state of this case.

I.

Before discussing the constitutionality of the Wisconsin Obscenity statute and the warrant under which the search of plaintiff's business was conducted, this Court must determine whether it is under an obligation to abstain. For the reasons set forth herein, it is this Court's considered opinion that it should not abstain, and consequently, defendants' motion to dismiss based upon that ground must be denied.

In the case of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the United States Supreme Court created the doctrine of "Our Federalism." Such a policy executes the concept of separation of powers engrained within the Constitution. Under this doctrine, a federal district court should abstain from interfering in a state criminal prosecution except in an extraordinary case. The Court indicated that this was based upon a "fundamental policy against federal interference with state criminal prosecutions." Id. at 46, 91 S.Ct. at 751. The test to be used is whether intervention is needed to protect the petitioner from immediate irreparable injury. This Court, however, need not reach the question of whether Castle News will be subjected to such injury.

In the cases of Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), and Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), the United States Supreme Court created an exception to Younger, supra. In Steffel, the court held that when a plaintiff seeks a declaratory judgment declaring a state statute unconstitutional, a federal court can grant federal declaratory relief if plaintiff shows that there is a genuine threat of enforcement of a disputed state criminal statute.

In Doran v. Salem Inn, Inc., supra, the Supreme Court held that an injunction can issue to preserve the status quo in a case in which plaintiff was seeking declaratory relief, as long as the state criminal prosecution has not commenced. Doran, supra, at 930-31, 95 S.Ct. 2561. See, also, Village of Belle Terre v. Boraas, 416 U.S. 1, at 3 n.1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974).

Defendant, in oral argument before this Court, referred this Court to the recent case of Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), decided in the same year as Doran, supra. Hicks is not relevant to the case at hand. In Hicks, the plaintiff, a theatre owner, sued for declaratory relief and a preliminary injunction.

Although there was no pending criminal prosecution involving the theatre owner, state criminal proceedings were pending against the theatre owner's employees and copies of a film that had been seized. One day after the federal complaint was served, the theatre owner was added as a defendant in the criminal case.

Under these circumstances, the court held that the interests of the theatre owner and the employees was so intertwined that "the federal action sought to interfere with the pending state prosecution." Hicks v. Miranda, supra, at 348-49, 95 S.Ct. at 2291. The court further added "that where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v. Harris should apply in full force." Id.

The holding of Hicks, supra, is not apropos in the present case for two reasons. First, to this Court's knowledge, there are currently no related state prosecutions pending in this case. Mr. Franklyn Gimbel, attorney for defendant, has filed numerous papers in this case, but none of these point to any pending state prosecutions. Also, during oral...