Dunagin v. City of Oxford, Miss., WC 79-83-WK-P.

• Decision Date: 02 May 1980
• Docket Number: No. WC 79-83-WK-P.,WC 79-83-WK-P.
• Citation: 489 F. Supp. 763
• Parties: Kathy DUNAGIN et al., Plaintiffs, v. The CITY OF OXFORD, MISSISSIPPI, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

489 F. Supp. 763

Kathy DUNAGIN et al., Plaintiffs, v. The CITY OF OXFORD, MISSISSIPPI, et al., Defendants.

No. WC 79-83-WK-P.

United States District Court, N. D. Mississippi, W. D.

May 2, 1980.

COPYRIGHT MATERIAL OMITTED

Grady F. Tollison, Jr., Oxford, Miss., for plaintiffs.

G. A. Gafford, Oxford, Miss., Hubbard T. Saunders, IV, Asst. Atty. Gen., Jackson, Miss., for defendants.

MEMORANDUM OF DECISION

KEADY, Chief Judge.

This class-action lawsuit challenges the constitutionality of Mississippi laws that ban the advertising of certain alcoholic beverages. At issue is whether the free speech clause of the First Amendment prevents the state from forbidding liquor advertisements and whether the Twenty-first Amendment empowers the state to ban liquor advertisements regardless of any First Amendment protections. Suit was brought by the editor and business manager of The Daily Mississippian, a newspaper published by students of the University of Mississippi at Oxford. Representing past, present and future editors and business managers,¹ plaintiffs named as defendants the City of Oxford, its Mayor and the City Aldermen (collectively referred to as City). Because plaintiffs drew into question the constitutionality of a Mississippi statute, we granted the State of Mississippi permission to intervene as a defendant. See 28 U.S.C. § 2403(b).

Plaintiffs invoke the court's jurisdiction under 28 U.S.C. §§ 1331 and 1343(3) for cause of action under 42 U.S.C. § 1983. They seek declaratory and injunctive relief and attorney's fees. Pending before the court are the State's motion to stay or dismiss this suit pending the outcome of a similar case in the United States District Court for the Southern District of Mississippi, Lamar Outdoor Advertising v. Mississippi State Tax Commission, No. J78-0472(R); cross motions for summary judgment on the merits of the dispute; and plaintiffs' motion to dismiss the City's abuse-of-process counterclaim for failure to state a claim upon which relief can be granted.

I.

The facts of this case are undisputed.² Early in 1979, The Daily Mississippian ran advertisements for beer in some of its issues. Subsequently, an Oxford city policeman visited the offices of The Daily Mississippian to advise the editor that the paper should cease advertising beer because state law prohibits it. This visit was followed, on March 29, by a letter from Hon. G. A. Gafford, Oxford City Attorney. Gafford wrote the editor that the City had received a number of complaints concerning beer advertising in the local papers. He recounted that the Chief of Police had discussed the matter with The Daily Mississippian's editor and with the editor of the Oxford Eagle, a local paper neither affiliated with the University nor party to this suit. He stated that the Oxford Eagle had agreed to discontinue advertising of beer or other intoxicating beverages but that The Daily Mississippian continued to advertise beer in violation of Miss. Code Ann. § 97-31-1 (1972), which makes unlawful the publishing of a newspaper that contains advertisements for certain alcoholic beverages.³ Gafford continued:

By your insistence in circulating these advertisements you indicate a complete unwillingness to cooperate with the responsible officials of the City of Oxford. By continuing this practice you will force the City of Oxford to seek injunctive relief as required by law. In addition, your advertising policies jeopardize the license of those you represent, jeopardizes sic the freedom of some of those for whom you advertise inasmuch as beer is illegal in Lafayette County outside of the city limits of Oxford with the campus falling in that classification, and you jeopardize access to beer and other liquors as a legal commodity to all of the citizens of Oxford and others residing therein which includes a lot of students.

What you apparently preceive sic as a service to your readers really boils down to a disservice to the entire community.

This is a request that you consider the adoption of a policy which would eliminate the advertisement of intoxicating beverages in your paper.

Plaintiffs filed suit on June 7. Their initial complaint alleged that they had in the past advertised beer and wished to do so in the future. Conceding that the challenged statute does not prohibit the advertising of beer, as opposed to other alcoholic beverages, defendants moved to dismiss for lack of case or controversy.⁴ U.S. Const. art. III. Plaintiffs' counsel responded in their brief that a controversy continued to exist because plaintiffs wished to advertise alcoholic beverages other than beer. Since the complaint did not contain such an allegation, the court granted the motion to dismiss unless plaintiffs amended their complaint to allege either a past practice of advertising liquor or intoxicating beverages other than beer or an intent to do so in the future. Plaintiffs complied, alleging that they desired to advertise liquor other than beer but were threatened by the City's position as reflected in Gafford's letter.

In the meantime the City had retreated somewhat from that position. On June 29 the City filed an ex parte "stipulation" that it would take no action against The Daily Mississippian to enforce § 97-31-1 pending the outcome of this case. Most recently, in its answer to plaintiffs' amended complaint, the City said that it will not attempt to secure compliance with the statute until its constitutionality is determined in Lamar Outdoor Advertising v. Mississippi State Tax Commission, a similar case pending in the United States District Court for the Southern District of Mississippi, and that it would abide by the result reached in that case. The City included in its answer a counterclaim for abuse of process on the ground that plaintiffs harassed it by filing this suit because the City has no intention of interfering with plaintiffs' constitutional rights.

II.

At the outset, we inquire whether this lawsuit presents a case or controversy as required by Article III of the United States Constitution. If not, then we are without jurisdiction to proceed. See, e.g., Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941). The court acts with caution because the City has stated on the record that it has no intention of attempting to enforce § 97-31-1 until Lamar is resolved and that it will abide by the outcome of that case. It is possible that the City will never again threaten plaintiffs with the statute, and the State of Mississippi has not taken any steps to enjoin or prosecute plaintiffs.

Before the City represented to plaintiffs that it would not attempt, at least for the time being, to enforce § 97-31-1, a case or controversy did exist. However, the constitutional requirement must be met at all times during the course of suit, not just at the outset. Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975); and, "as a general rule, `voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.'" County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979), quoting United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). Thus the City's assurances of non-prosecution do not render plaintiffs' claim nonjusticiable. Rather, the court must consider whether it can be said with assurance that no reasonable expectation exists that the threatening conduct will recur and whether "interim relief or events have completely and irrevocably eradicated" its effects. Davis, 440 U.S. at 631, 99 S.Ct. at 1383. See Vitek v. Jones, ___ U.S. ___, ___, 100 S.Ct. 1254, 1260, 63 L.Ed.2d 552 (1980). "When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law." Davis, 440 U.S. at 631, 99 S.Ct. at 1383.

We do not find these conditions satisfied in the case sub judice. It is true that the City might never prosecute plaintiffs because the federal court in the Southern District of Mississippi might declare the challenged statute unconstitutional in Lamar. However, the court could also rule the other way or dispose of the case without reaching the merits. Furthermore, there is no way to determine when the Southern District court may decide the case. During the interim the City might change its policy and elect to prosecute after all.

As to the second condition, the effects of the City's previous threats linger. Plaintiffs are in limbo over whether to advertise because, despite the City's present assurance that it will not proceed against them, at any time in the future the City may decide to prosecute. Plaintiffs derive income from running advertisements; the uncertainty surrounding the legality of doing so must surely be reflected in their success at soliciting advertisements from potential customers hesitant to participate in breaking the law. Moreover, although the City has not threatened plaintiffs with criminal prosecution, the possibility that it may remains. We therefore conclude that this action does involve a case or controversy and that we consequently have jurisdiction to proceed.

III.

The State has moved the court to dismiss this claim without prejudice because a similar lawsuit, Lamar Outdoor Advertising v. Mississippi State Tax Commission, No. J78-0472(R), which was filed before this action, is pending in the United States District Court for the Southern District of Mississippi. As grounds therefor, the State relies upon "the doctrine of federal comity, a discretionary doctrine which permits one district to decline judgment on an issue which is properly before another district." Church of Scientology v. United States Department of the Army, 611 F.2d 738, 749 (9 Cir. 1979). This doctrine rests on considerations...