Conners v. Riley
| Decision Date | 13 May 1975 |
| Docket Number | No. FS-73-C-64.,FS-73-C-64. |
| Citation | 395 F. Supp. 1244 |
| Parties | Charles E. CONNERS, d/b/a Butterfield Trail Newstand, et al., Plaintiffs, v. Ray RILEY et al., Defendants. |
| Court | U.S. District Court — Western District of Arkansas |
H. Clay Robinson, of Pearce, Robinson & McCord, Fort Smith, Ark., for plaintiffs.
Jerry L. Canfield, of Daily, West, Core & Coffman, Fort Smith, Ark., for defendants.
This is an action brought by the Plaintiffs, individually, and as members of a class, seeking a declaratory judgment declaring an ordinance of the City of Fort Smith, Arkansas, to be unconstitutional; and to enjoin the individual Defendants from prosecuting or threatening to bring prosecutions pursuant to the ordinance. A hearing was held on June 21, 1973, on Plaintiffs' Motion for Preliminary Injunction and the Motion to Dismiss filed by the Defendants. This Court denied Plaintiffs' Motion for Preliminary Injunction and directed counsel to submit simultaneous briefs dealing with the issues raised by the Defendants' Motion to Dismiss. For the reasons hereinafter set forth, this Court is of the opinion that the Defendants' Motion to Dismiss should be granted.
1. The individual Plaintiff, Charles E. Conners, is the operator of a newsstand in the City of Fort Smith, Arkansas.
2. The corporate plaintiff is a distributor of pocket books and magazines to various retail outlets in the City of Fort Smith.
3. The Defendant, Ray Riley, is the City Administrator of the City of Fort Smith, Arkansas.
4. The Defendant, Carl Beyer, is the Chief of Police of the City of Fort Smith, Arkansas.
5. The individual Defendants, Charles Jones, Curtis Balch, Paul Rivaldo and Bill Reather, are each members of the Police Department of the City of Fort Smith, Arkansas.
6. On May 15, 1973, the City of Fort Smith, Arkansas, duly enacted Ordinance No. 3092 regulating the direct commercial distribution of certain explicit sexual materials to young persons and also to prohibit the open, public display of certain explicit sexual materials. The complete text of Ordinance No. 3092 is attached as an appendix to this opinion. After the enactment of Ordinance No. 3092, members of the Police Department of the City of Fort Smith, Arkansas, visited a number of retail stores in the City of Fort Smith, Arkansas, for the purpose of advising the proprietors thereof of the enactment of Ordinance No. 3092 and to ask for cooperation in complying with the Ordinance.
7. On June 12, 1973, the Defendants Jones and Balch entered the establishment of the Plaintiff Conners for these purposes.
8. No threats or insinuations of prosecution were made by the Defendants Jones and Balch to the Plaintiff Conners.
9. As of the hearing on June 21, 1973, no prosecutions had been commenced under Ordinance No. 3092 and there have been none to this date.
This is an action for declaratory relief. 28 U.S.C. Section 2201 provides that a United States District Court may enter a declaratory judgment in otherwise appropriate cases if an "actual controversy" exists between the parties to the proceeding. This requirement of "actual controversy" is also frequently referred to as "standing". These phrases refer to the jurisdictional facts which must exist before a federal district court will entertain a case under 28 U.S.C. Section 1343, 42 U.S.C. Section 1983, or any other jurisdictional statute.
The Plaintiffs rely on the case of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). However, the Dombrowski decision is not the latest expression of the United States Supreme Court on the jurisdictional question involved in this case. In a series of opinions decided on February 23, 1971, the United States Supreme Court comprehensively discussed the question of federal court intervention in pending, threatened and possible state court criminal prosecutions. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971); Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L. Ed.2d 696 (1971). Many of these Supreme Court decisions commented on the Dombrowski decision, and the majority of the Court in the Younger decision clarified and clearly limited the breadth of the Dombrowski decision. See Younger v. Harris, 401 U.S. 37, at 47-53, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Each of the above decisions with the exception of the Boyle case, involved pending state court criminal prosecutions. In these cases the Supreme Court made it clear that a federal court should not interfere in such proceedings in the absence of a showing of bad faith prosecution. In the Boyle decision the Court considering the question of jurisdiction in the instance of possible state court prosecutions, and several of the United States circuit courts and district courts have applied the Boyle decision in such instances.
In the Boyle case, several groups of Negro residents of Chicago, Illinois, sought declaratory and injunctive relief against state and municipal officials with reference to several Illinois statutes which plaintiffs alleged had been used in arresting some of the plaintiffs. The plaintiffs alleged that the defendants had threatened to enforce all of the statutes for the purpose of harassing and intimidating the plaintiffs. Justice Black at 401 U.S. 80-81, 91 S.Ct. 760 stated for a majority of the Courts:
(Emphasis Added.)
Justice Black continued by stating that such allegations would not support the disruption of the state system of criminal justice since the allegations "in the last analysis amount to nothing more than speculation about the future". 401 U.S. at 81, 91 S.Ct. at 760. (Emphasis Added.)
Several recent lower federal court cases interpreting and applying the Boyle decision should be reviewed. Cases directly supporting the Boyle decision include Gordon v. Lanbrieu, 442 F.2d 926 (5th Cir. 1971), where, on the basis of Boyle and other Supreme Court decisions handed down on the same date, the 5th Circuit held that an action seeking a declaration by the federal court of the unconstitutionality of certain New Orleans city ordinances should be dismissed after the trial court was informed in oral argument that the prosecutions questioned had been dismissed and that no prosecutions were threatened.
In Carter v. Chief of Police, 468 F.2d 900 (5th Cir. 1972), the 5th Circuit dismissed an action by an individual seeking an injunction against state court criminal prosecutions and invoking the jurisdiction of 28 U.S.C. Section 1343 (3). The Court noted that the petition contained no allegation of pending or threatened state court criminal prosecutions. The Court upheld the district court's dismissal of the action citing the Boyle case and also citing language from the Younger case at 401 U.S. 42, 91 S. Ct. 746 to the effect that "persons having no fears of state prosecution except those that are imaginary or speculative are not to be accepted as appropriate plaintiffs."
In Thevis v. Seibels, 464 F.2d 613 (5th Cir. 1972) it was held that court prosecutions, whether pending or threatened, do not justify Federal Court intervention in the absence of proof of bad faith, harassment or other extraordinary circumstances.
Under the facts of this case as presented in the hearing and on the pleadings, the Court is of the opinion that there is no actual controversy between the parties to this suit and the individual plaintiffs have no standing to seek declaratory relief. Much as was the fact in the Boyle case, Plaintiffs have sought out in advance of prosecutions or even threats of prosecution a declaration of their rights with reference to a criminal ordinance which Plaintiffs feel might be interpreted in a way so as to deprive them of certain rights. The conclusion is inescapable that in applying the facts of this case to the legal principles of the Boyle decision no valid federal claim is presented.
In addition to and independent of the foregoing, the Court is also of the opinion that this is an appropriate case in which this Court should abstain from jurisdiction even if jurisdictional facts existed. The federalism bases for the doctrine of abstention is well expressed in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The doctrine still validly applies in this area as shown by recent U. S. Supreme Court decisions, Schlesinger v. Councilman, (1975) 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591; Kugler v. Helefant (1975) 421 U.S. 117, 95 S.Ct. 1524, 44 L.Ed.2d 15, and in the case of Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed. 2d 505 (1974) although the United States Supreme Court held that abstention was not proper. It again reaffirmed the doctrine enunciated in Younger and stated:
Accordingly we find the doctrine of abstention proper herein. As aptly...
To continue reading
Request your trial
-
Trice v. City of Pine Bluff
...Inc., 258 Ark. 91, 522 S.W.2d 836 (1975), cert. denied 423 U.S. 941, 96 S.Ct. 350, 46 L.Ed.2d 273 (1975); Conners v. Riley, 395 F.Supp. 1244 (W.D.Ark.1975). The majority opinion decides a case that essentially was not presented to the trial court, nor fairly represented as such on appeal. I......