Fernwood Books and Video v. City of Jackson, Miss.

• Decision Date: 13 November 1984
• Docket Number: Civ. A. No. J84-0775(L).
• Citation: 601 F. Supp. 1093
• Parties: FERNWOOD BOOKS AND VIDEO, INC., a Mississippi corporation, Select Books and Video, Inc., a Mississippi corporation, and Golden Distributors, Inc., a Mississippi corporation, Plaintiffs, v. CITY OF JACKSON, MISSISSIPPI, a municipal corporation, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

601 F. Supp. 1093

FERNWOOD BOOKS AND VIDEO, INC., a Mississippi corporation, Select Books and Video, Inc., a Mississippi corporation, and Golden Distributors, Inc., a Mississippi corporation, Plaintiffs, v. CITY OF JACKSON, MISSISSIPPI, a municipal corporation, Defendant.

Civ. A. No. J84-0775(L).

United States District Court, S.D. Mississippi, S.D.

November 13, 1984.

John H. Weston, G. Randall Garrow, Robert A. Sarno, Weston & Sarno, Beverly Hills, Cal., Bobby B. DeLaughter, Kirksey, Brantley & DeLaughter, Jackson, Miss., for plaintiffs.

John Hedglin, Jackson, Miss., for defendant.

MEMORANDUM OPINION

TOM S. LEE, District Judge.

The plaintiffs, Fernwood Books and Video, Inc., Select Books and Video, Inc. and Golden Distributors, Inc., filed this action to enjoin enforcement of an obscenity ordinance recently enacted by the defendant, the City of Jackson.¹ This court declined to enter a temporary restraining order pending resolution of the plaintiffs' Motion for a Preliminary Injunction. After review of the memoranda of authorities submitted by the parties and oral argument, the court is of the opinion that the plaintiffs' Motion for Preliminary Injunction is well taken and should be granted.

PULLMAN ABSTENTION

The defendant contends that this court should refrain from deciding the constitutional issues in this case pursuant to the abstention doctrine set out in Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The Pullman Court stated that a federal court may properly defer to a state court "if a definitive ruling on the state issue would terminate the controversy." Id. at 498, 61 S.Ct. at 644. Abstention, however, is the exception rather than the rule. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976); Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967); O'Hair v. White, 675 F.2d 680, 692 (5th Cir.1982); High Ol'Times, Inc. v. Busbee, 621 F.2d 135, 139 (5th Cir.1980); Gibson v. Jackson, 578 F.2d 1045, 1048-49 (5th Cir.1978), cert. denied, 439 U.S. 1119, 99 S.Ct. 1028, 59 L.Ed.2d 79 (1979); Goldstein v. Allain, 568 F.Supp. 1377, 1383-84 (N.D. Miss.1983).

A federal court should exercise its jurisdiction unless resolution of the state law issue is "fairly susceptible of an interpretation that might avoid or substantially modify the federal constitutional question." O'Hair v. White, 675 F.2d at 693. Abstention is not appropriate when state law is not ambiguous and is not necessary in every case involving a question that has not yet been interpreted by the state court. Id. In addition, abstention is rarely proper when fundamental constitutional rights, particularly First Amendment rights, are involved. See Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974); Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1032-33 (5th Cir.1981); Hobbs v. Thompson, 448 F.2d 456, 463 (5th Cir.1971). After review of the issues raised by the plaintiff, this court concludes that abstention is not appropriate in this case.²

CRITERIA FOR ISSUANCE OF A PRELIMINARY INJUNCTION

The requirements for the issuance of a preliminary injunction are well settled in the Fifth Circuit. The moving party must show:

(1) a substantial likelihood that the movant will prevail on the merits;

(2) a substantial threat that the movant will suffer irreparable injury if the injunction is not granted;

(3) that the threatened injury to the movant outweighs the threatened harm the injunction may do to the nonmoving party; and

(4) that granting the preliminary injunction will not disserve the public interest.

Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir.1974).

LIKELIHOOD OF SUCCESS ON THE MERITS

To prevail on their Motion for Preliminary Injunction, the plaintiffs must first demonstrate a substantial likelihood that they will succeed on the merits of their claims. The plaintiffs have raised two distinct claims and the court will discuss each separately.

1. Preemption by State Law

The plaintiffs argue that the City is without power to enact its obscenity ordinance because of the existence of a state statute regulating the same material.³ The City's only response to this contention is that the statute has been held to be unconstitutional. This, of course, is not correct. In Goldstein v. Allain, the United States District Court for the Northern District of Mississippi merely enjoined enforcement of the statute against the plaintiffs pending a trial on the merits. In all other respects, the statute continues to be an enforceable law of this state.⁴ Section 21-13-19, Miss. Code Ann., provides:

"All offenses under the penal laws of this state which are misdemeanors are hereby made, without further action of the municipal authorities, criminal offenses against the municipality in whose corporate limits the offenses may have been committed to the same effect as though such offenses were made offenses against the municipality by separate ordinance in each case."

Therefore, the portions of the state obscenity statute relating to misdemeanors are also enforceable laws of the City of Jackson, subject to the preliminary injunction entered in Goldstein.

The question of preemption presented by the plaintiffs has not been directly addressed by the Mississippi Supreme Court. Section 21-17-5 of the Mississippi Code Annotated grants the municipality the power to "enact ordinances for the purposes provided by law, where same are not repugnant to the laws of the state." Interpretation of this statute and its predecessors has made it clear that a municipality

"can only exercise such powers as are delegated by the legislature to municipalities and that such powers should be exercised in conformity to and consistent with the general laws of the state; that a municipality has no power except that delegated to it by the state; that powers of a municipality are to be construed most strongly against an asserted right not clearly given and cannot be extended by mere implication; and that if there is a conflict between a municipal ordinance and a state statute the latter must prevail."⁵

In City of Jackson v. Lee, 252 So.2d 897 (Miss.1971), the Mississippi Supreme Court upheld a Jackson ordinance requiring that operators and passengers of two-wheeled self-propelled vehicles wear helmets. The court found authority for the ordinance in the Mississippi statute delegating to municipalities the power to exercise jurisdiction in the matter of streets, sidewalks, sewers and parks.⁶ Furthermore, § 8150, Miss. Code Ann. (1956) (recodified at § 63-3-209, Miss.Code Ann. (1972)), specifically provided that "Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this Act." The court determined that the ordinance was not in conflict with the statute but rather was merely an additional traffic regulation as contemplated by the legislature.

Likewise, in Watkins v. Navarrette, 227 So.2d 853 (Miss.1969), the challenged ordinance was found to be authorized by state legislation. The ordinance made it unlawful to sell light wine and beer between the hours of 2:00 A.M. and 9:00 A.M. on week days and between 12:00 midnight Saturday and 9:00 A.M. Monday. The statute prohibited sale of beer and wine between 12:00 midnight and 7:00 A.M. or "during any time the licensed premises may be required to be closed by municipal ordinance or order of the Board of Supervisors." Section 10223, Miss.Code Ann. (1942) (recodified at § 67-3-53, Miss.Code Ann. (1972)). The State Tax Commission, pursuant to statutory authority, had approved the sale of alcoholic beverages in the city between the hours of midnight and 2:00 A.M. on week-days.⁷ The court acknowledged that, in the event of a conflict between an ordinance and a statute, the statute must prevail. The court held that no conflict existed but stated that an ordinance extending hours during which beer could be sold would be contrary to the controlling state law. In City of Amory v. Yielding, 203 Miss. 265, 34 So.2d 726 (1948), the Mississippi Supreme Court invalidated a local ordinance that had the effect of nullifying a state statute. The state statute provided that the possession of beer for personal consumption was legal. The local ordinance, which made that act illegal in the City of Amory, was held to be void because of the clear conflict with the statute. Id. 34 So.2d at 728.

In Hattiesburg Firefighters Local 184 v. City of Hattiesburg, 263 So.2d 767 (Miss. 1972), the court reviewed state statutes setting forth the powers and duties of a city council operating under a commission form of government and found authority for the enactment of an ordinance requiring that city employees reside within the city limits. Section 3374-53, Miss.Code Ann. (1942) (recodified at Section 21-5-9, Miss.Code Ann. (1972)), empowered the council to enact "all needful rules and regulations for the government of the officers and employees of such city." Section 3374-54, Miss.Code Ann. (1942) (recodified at Section 21-5-11, Miss.Code Ann. (1972)), authorized the making of "all such rules and regulations as may be necessary or proper for the efficient and economical conduct of the business of the city."

The defendant has not identified any such authorization for the enactment of the ordinance under consideration. None of the above cases are directly on point regarding the issue before the court. The state statute does not specifically contemplate or anticipate additional regulation by a city as did the statutes in Watkins, City of Jackson, and Hattiesburg Firefighters. The Jackson ordinance, as a whole, does not have the effect of nullifying a state statute as the ordinance did in the Amory case.⁸ A precise comparison of the statute and ordinance and the determination of their relative effects would be difficult...