Century 21 Shows, Inc. v. State of Iowa, Civ. No. 72-179-2.

• Decision Date: 12 August 1972
• Docket Number: Civ. No. 72-179-2.
• Parties: CENTURY 21 SHOWS, INC., et al., Plaintiffs, v. STATE OF IOWA et al., Defendants.
• Court: U.S. District Court — Southern District of Iowa

346 F. Supp. 1050

CENTURY 21 SHOWS, INC., et al., Plaintiffs, v. STATE OF IOWA et al., Defendants.

Civ. No. 72-179-2.

United States District Court, S. D. Iowa, C. D.

August 12, 1972.

Harry Haskins, John A. McClintock, Ronald A. Riley, Hansen, Wheatcraft & McClintock, Des Moines, Iowa, for plaintiffs.

Richard C. Turner, Atty. Gen., John E. Wietzke, Asst. Atty. Gen., Kevin Maggio, Mary Royer, Des Moines, Iowa, for defendants.

Before STEPHENSON, Circuit Judge, VAN PELT, Senior District Judge, and HANSON, Chief District Judge.

MEMORANDUM ORDER

STEPHENSON, Circuit Judge.

Plaintiffs are the suppliers and operators of midway shows, rides, and concessions at various fairs in the State of Iowa. On June 22, 1972 they instituted in the Polk County, Iowa District Court a lawsuit seeking a declaration that hoop-la, balloon dart, bear pitch, basketball shoot, football throw, shooting galleries, six cat game and milk bottle game, fishpond game, block color group, tic-tac-toe, shooting waters, huff and puff, dragline, and fool the guesser do not fall within those portions of I.C.A. Chapter 726 which make criminal the playing of any game for a money consideration or for other property of any value. They premised the claim for declaratory relief on the theory that these activities do not constitute "gambling", but require skill and dexterity in achieving the objective underlying each. They did not explicitly call into question the constitutionality of a single statute comprising Chapter 726.

After a plenary bench trial the District Court, on July 17, 1972, denied the requested relief, holding that the enumerated "games" fell squarely within the conduct sought to be proscribed by Chapter 726. From that decision the plaintiffs lodged a direct appeal in the Supreme Court of Iowa, and sought a Stay of the underlying judgment pending final adjudication of the appeal. The Supreme Court, in a brief and unpublished order, denied the request for a Stay and refused to enjoin the Iowa Attorney General from initiating prosecutions under the statutes pending disposition of the appeal. The merits of the appeal, however, remain for Supreme Court adjudication.

Thirteen days after the Supreme Court denied interim equitable relief, the plaintiffs commenced the present civil rights action.¹ They requested in the alternative either preliminary injunctive relief pending final disposition of the State appeal, or a declaration that §§ 726.1 and 726.3 are impermissibly vague under standards of the Fourteenth Amendment. In view of the nature and force of the federal constitutional attack, and because the plaintiffs sought ultimately to enjoin a State official from enforcement of a State statute of statewide application, this statutory three-judge court was designated and impaneled. 28 U.S.C. §§ 2281, 2284. See generally, Potter v. Meier, 458 F.2d 585, 588 (CA8 1972). Some three hours before this matter was heard the defense filed a motion to dismiss and a supporting brief.

Federal courts sit not to supervise or frustrate good faith State judicial proceedings but to enforce and protect federally protected rights. As a general proposition, when it is alleged that those rights have been violated by the application of State legislation, but there are questions of State law that, after construction by the authoritative State tribunal, may remove the asserted infirmity, a federal court will stay its hand while the parties resort to that forum for adjudication of the State questions. Railroad Commission v. Pullman Co., 312 U.S. 496, 500-501, 61 S.Ct. 643, 85 L.Ed. 971 (1941), and Reetz v. Bozanich, 397 U.S. 82, 85-87, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). This principle has been clothed with especial importance when federal constitutional adjudication is sought during the pendancy of a State judicial proceeding. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L. Ed.2d 669 (1971), proscribes federal courts from enjoining ongoing State criminal proceedings where there is no showing that those proceedings have been initiated in bad faith. In Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), it was held that defendants in pending State criminal proceedings are precluded from obtaining federal declaratory relief on the constitutionality of the statute under which they are charged. Although neither Younger nor Samuels controls this case —because they deal only with the propriety of federal declaratory or injunctive relief while State criminal proceedings are pending—the implications of such precedents are weighty.

We recognize that Iowa law enforcement officials have yet to act against any individual who has engaged in the playing of one or more of the specified games. Thus in this narrow sense there does not exist a pending State criminal proceeding which would be disrupted by federal judicial action. But the plaintiffs have themselves initiated State civil proceedings which have not as yet moved to final judgment. We cannot, at the appellate stage of those important and perhaps dispositive proceedings, view our favorable action on either of the alternative requests for relief as amounting only to a minimal interference with State judicial activity.² So to conclude would be to exalt formal logic at the expense of the sensitivities of the problem involved. Moreover, such a result would be fundamentally at odds with thirty years of federal abstention jurisprudence. We accordingly hold that we are compelled to abstain from granting any relief until the Supreme Court of Iowa disposes of the plaintiffs' appeal. Harrison v. N.A.A.C.P., 360 U. S. 167, 176-178, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959); Railroad Comm'n v. Pullman, supra, p. 500 of 312 U.S., p. 643 of 61 S.Ct., and McGuire v. State of Iowa, 320 F.Supp. 243, 246 (SD Iowa 1970). Cf. Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Glenn v. Field Packing Co., 290 U.S. 177, 54 S.Ct. 138, 78 L.Ed. 252 (1933); Leiter Minerals, Inc., v. United States, 352 U.S. 220, 228-229, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957), and Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 27-30, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959). See also Moyer v. Nelson, 324 F.Supp. 1224, 1230-1232 (SD Iowa 1971). Semble, Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972); Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S. Ct. 2091, 32 L.Ed.2d 791 (1972); Lynch v. Household Finance Corp., 405 U.S. 538, 552-556, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), and Parisi v. Davidson, 405 U.S. 34, 41-42, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972). Assuming, without deciding, this complaint frames a substantial constitutional question, we will retain jurisdiction and deny the defense motion to dismiss.

HANSON, Chief District Judge (dissenting).

The Court today has decided to withhold the exercise of its jurisdiction until the Supreme Court of Iowa has finally determined the underlying State issues in this cause. I believe the use of the doctrine of abstention in this instance is untenable, improvident and unconscionable.

The sole question before this Court at this juncture is whether Richard Turner, Attorney General of Iowa, should be temporarily enjoined from enforcing against the plaintiffs¹ Iowa Code, Sections 726.1 & .3 with respect to certain carnival games outlined in the Complaint. Plaintiffs allege that certain parts of the Code provisions are vague and overbroad, thus offending the Fourteenth Amendment to the Constitution of the United States. Plaintiffs further allege that the Attorney General enforces or threatens to enforce these statutes in an arbitrary, capricious, and discriminatory manner and in bad faith, in violation of the Fourteenth Amendment.

On June 22, 1972, the plaintiffs initiated an action in the Iowa District Court in and for Polk County seeking a declaratory judgment that the games at issue in this lawsuit were not within the contemplation of Iowa Code, Sections 726.1 & .3. On June 29, 1972, the district judge granted a temporary injunction for twenty days restraining the Attorney General from enforcing the statutes with respect to the games. But on July 17, 1972, the district judge entered a declaratory judgment denying the relief sought by the plaintiffs and holding that the games in controversy were in violation of Sections 726.1 & .3. Plaintiffs appealed to the Supreme Court of Iowa and sought an order temporarily staying enforcement of the statutes with respect to the games until the Supreme Court could decide the case on the merits. On July 25, 1972, the Supreme Court of Iowa denied the temporary stay for reasons unarticulated.² Plaintiffs allege and it is not disputed that the Supreme Court of Iowa cannot reach the case for hearing on the merits until at least December of 1972.

I do not dispute that the doctrine of abstention dictates that this Court delay deciding the constitutional issues in this lawsuit until the Supreme Court of Iowa makes a final determination of the case before it. Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983 (1953). Preliminarily to any determination of the issues of vagueness or overbreadth of Sections 726.1 & .3, the Court must determine the perimeters of the Statutes. It is very possible that the State court could construe the language in these statutes at issue there and here in a manner that would eliminate the necessity of deciding the constitutional challenge here. Furthermore, it is possible that the Supreme Court could in the case now pending before it, order the Attorney General to enforce the statutes in such a manner so as to moot this lawsuit entirely. The Supreme Court of Iowa has never interpreted the language that the plaintiffs find offensive in these statutes. The language is clearly subject to varying interpretation.

"Where resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of

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